EX-4.1






EXHIBIT 4.1

EXECUTION VERSION




 





 






NOTE PURCHASE AGREEMENT

dated as of February 13, 2009




 






SIRIUS XM RADIO INC.

XM SATELLITE RADIO HOLDINGS INC.

XM 1500 ECKINGTON LLC

XM INVESTMENT LLC




and




THE PURCHASERS LISTED ON SCHEDULE 1 HERETO




 






 









 









TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Terms Generally
	 	 	6	 
	Section 1.3 Computation of Time Periods
	 	 	6	 
	Section 1.4 Accounting Terms
	 	 	7	 
	 
	 	 	 	 
	ARTICLE II EXCHANGE OF EXISTING NOTES FOR XM SATELLITE NOTES
	 	 	7	 
	Section 2.1 Authorization and Issuance
	 	 	7	 
	Section 2.2 Exchange of Existing Convertible Notes for XM Satellite Notes
	 	 	7	 
	Section 2.3 Structuring Fee; Delivery Date
	 	 	7	 
	Section 2.4 Closing
	 	 	8	 
	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF XM SATELLITE, THE GUARANTORS AND PARENT
	 	 	8	 
	Section 3.1 Organization; Powers
	 	 	8	 
	Section 3.2 Authorization and; Enforceability of this Agreement
	 	 	8	 
	Section 3.3 Authorization and Enforceability of the Exchanges, the XM Satellite Note
Indenture, the XM Satellite Notes. the Note Guarantees and the Registration
Rights Agreement
	 	 	8	 
	Section 3.4 Authorization of the Structuring Fee Shares
	 	 	9	 
	Section 3.5 Governmental Consents; No Conflicts
	 	 	9	 
	Section 3.6 Properties
	 	 	9	 
	Section 3.7 Litigation
	 	 	10	 
	Section 3.8 Environmental Matters
	 	 	10	 
	Section 3.9 Compliance with Laws and Agreements
	 	 	10	 
	Section 3.10 Investment Company Act
	 	 	10	 
	Section 3.11 Taxes
	 	 	10	 
	Section 3.12 ERISA
	 	 	10	 
	Section 3.13 Well-Known Seasoned Issuer Status
	 	 	11	 
	Section 3.14 Common Stock
	 	 	11	 
	Section 3.15 Registration Statement, Prospectus Supplement and Incorporated Documents

	 	 	11	 
	Section 3.16 Subsidiaries; Capital Stock
	 	 	11	 
	Section 3.17 SEC Reports; Financial Statements
	 	 	11	 
	Section 3.18 Insurance
	 	 	12	 
	Section 3.19 Margin Regulations
	 	 	12	 
	Section 3.20 No Registration
	 	 	12	 
	Section 3.21 WKSI Shelf
	 	 	12	 
	Section 3.22 Prospectus Supplement
	 	 	12	 
	Section 3.23 Brokerage Fees
	 	 	12	 
	Section 3.24 PATRIOT Act
	 	 	12	 
	Section 3.25 No Bankruptcy
	 	 	13	 
	Section 3.26 Concerning the Guarantors
	 	 	13	 
	 
	 	 	 	 
	ARTICLE IV TRANSACTION COVENANTS
	 	 	13	 
	Section 4.1 Maintenance of Parent’s WKSI Shelf
	 	 	13	 






 









 






	 	 	 	 	 
	 	 	Page	 
	Section 4.2 Eligibility to Resell the Structuring Fee Shares under the Parent WKSI Shelf
	 	 	13	 
	Section 4.3 Filing of Parent Non-WKSI Shelf
	 	 	14	 
	Section 4.4 Suspension
	 	 	14	 
	Section 4.5 Covenant Regarding Offerings
	 	 	14	 
	Section 4.6 Rules 144 and 144A
	 	 	14	 
	Section 4.7 Existing Convertible Notes
	 	 	14	 
	Section 4.8 Covenant to File 8-Ks
	 	 	14	 
	Section 4.9 Registration Rights
	 	 	15	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
	 	 	15	 
	Section 5.1 Purchase Representations and Warranties
	 	 	15	 
	Section 5.2 Corporate Power; Authorization; Enforceability
	 	 	16	 
	Section 5.3 No Actions or Proceedings
	 	 	16	 
	Section 5.4 Ownership of Existing Convertible Notes
	 	 	16	 
	Section 5.5 Accuracy of Purchaser Information
	 	 	16	 
	 
	 	 	 	 
	ARTICLE VI CONDITIONS PRECEDENT
	 	 	16	 
	Section 6.1 Conditions to Obligations of the Purchasers
	 	 	16	 
	Section 6.2 Conditions to Obligations of XM Satellite, the Guarantors and Parent
	 	 	18	 
	Section 6.3 Conditions to Obligations of Each of the Parties
	 	 	18	 
	 
	 	 	 	 
	ARTICLE VII EXPENSES, INDEMNIFICATION AND CONTRIBUTION
	 	 	18	 
	Section 7.1 Expenses
	 	 	18	 
	Section 7.2 Indemnification
	 	 	18	 
	Section 7.3 Contribution
	 	 	20	 
	Section 7.4 Waiver of Punitive Damages
	 	 	20	 
	 
	 	 	 	 
	ARTICLE VIII MISCELLANEOUS
	 	 	21	 
	Section 8.1 Notices
	 	 	21	 
	Section 8.2 Benefit of Agreement and Assignments
	 	 	21	 
	Section 8.3 No Waiver; Remedies Cumulative
	 	 	21	 
	Section 8.4 Counterparts
	 	 	22	 
	Section 8.5 Headings
	 	 	22	 
	Section 8.6 Governing Law; Submission to Jurisdiction; Venue
	 	 	22	 
	Section 8.7 Severability
	 	 	22	 
	Section 8.8 Entirety
	 	 	23	 
	Section 8.9 Survival of Covenants, Indemnities and Representations and Warranties
	 	 	23	 
	Section 8.10 Construction
	 	 	23	 
	Section 8.11 Incorporation
	 	 	23	 
	Section 8.12 No Personal Obligations
	 	 	23	 
	Section 8.13 Currency
	 	 	23	 
	 
	 	 	 	 
	SIRIUS XM
RADIO INC.
	 	 	1	 
	 
	 	 	 	 
	SELLING STOCKHOLDER
	 	 	1	 
	 
	 	 	 	 
	QUESTIONNAIRE
	 	 	1	 






	 	 	 
	Schedule 1

	 	Purchasers






 









 






	 	 	 
	Schedule 3.16-1

	 	Subsidiaries
	Schedule 3.16-2

	 	Capital Stock
	Schedule 3.23

	 	Brokerage Fees
	 
	 	 
	Exhibit A

	 	Form of XM Satellite Notes Indenture
	Exhibit B

	 	Registration Rights Agreement
	Exhibit C

	 	Form of Opinion of Simpson Thacher & Bartlett LLP
	Exhibit D

	 	Form of Instruction to Trustee Cancel Notes
	Exhibit E

	 	Form of Letter to the Transfer Agent for Sales under the Prospectus Supplement
	Exhibit F

	 	Form of Selling Stockholder Questionnaire






 









 





          NOTE PURCHASE AGREEMENT (this “Agreement”), dated as of February 13, 2009, among
Sirius XM Radio Inc., a Delaware corporation (“Parent”), XM Satellite Radio Holdings Inc.,
a Delaware corporation (“XM Satellite”), XM 1500 Eckington LLC, a Delaware limited
liability company (“XM Eckington”), XM Investment LLC, a Delaware limited liability company
(“XM Investment,” and, together with XM Eckington, the “Guarantors”), and the
Purchasers listed on Schedule 1 hereto (the “Purchasers”).




PRELIMINARY STATEMENT




          WHEREAS, in connection with XM Satellite’s recapitalization, XM Satellite and Parent will (1)
issue senior PIK secured notes due 2011, guaranteed by the Guarantors, in an aggregate principal
amount of $172,485,000 (such notes, issued pursuant to the XM Satellite Notes Indenture, the
“XM Satellite Notes”); and (2) pay a structuring fee (a “Structuring Fee”) to the
Purchasers at each Purchaser’s election in the form of shares of Common Stock (as defined herein)
or cash in exchange for the Purchasers’ services in structuring the terms and conditions of the XM
Satellite Notes. The Structuring Fee Shares will be issued as set forth in Section 2.3; and




          WHEREAS, in connection with XM Satellite’s recapitalization, on the Closing Date (as defined
herein), the Purchasers will surrender their Existing Convertible Notes (as defined herein) to XM
Satellite as set forth in Section 2.2 hereof in exchange for a like principal amount of XM
Satellite Notes and the Structuring Fee Shares;




          NOW, THEREFORE, the parties hereto agree as follows:




ARTICLE I




DEFINITIONS




          Section 1.1 Definitions. As used herein the following terms shall have the meaning specified herein (it being understood
that defined terms shall include in the singular number the plural and in the plural the singular):





     “Accredited Investor” means any Person that is an “accredited investor” within
the meaning of Rule 501.




     “Affiliate” of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes hereof, “control”, when used with respect
to any Person, means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.




     “Agreement” shall have the meaning set forth in the preamble hereto.




     “Board” means the Board of Directors of Parent or any committee thereof duly
authorized to act on behalf of such Board.




     “Board of Governors” means the Board of Governors of the Federal Reserve System
of the United States of America.



 









 






     “Business Day” means any day that is not a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York.




     “Cash Fee” shall have the meaning set forth in Section 2.3(a).




     “Closing” shall have the meaning set forth in Section 2.4.




     “Closing Date” shall have the meaning set forth in Section 2.4.




     “Code” means the Internal Revenue Code of 1986, as amended from time to time,
and the regulations promulgated and rulings issued thereunder. Section references to the
Code are to the Code, as in effect at the date of this Agreement, and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.




     “Common Stock” means common stock, par value $0.001 per share, of Parent.




     “Delivery Date” shall have the meaning set forth in Section 2.3(b).




     “DTC” means The Depository Trust Company.




     “Environmental Laws” means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated
or entered into by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or threatened
Release of any Hazardous Material or to health and safety matters.




     “Environmental Liability” means any liability, obligation, damage, loss, claim,
action, suit, judgment, order, fine, penalty, fee, expense or cost, contingent or otherwise
(including any liability for natural resource damages, costs of environmental remediation or
indemnities), directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
Release or threatened Release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time.




     “ERISA Affiliate” means any trade or business (whether or not incorporated)
that, together with Parent is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.




     “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for
which the 30-day notice period is waived), (b) prior to the effectiveness of the applicable
provisions of the Pension Act, the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA) or, on
and after the effectiveness of the applicable provisions of the Pension Act, any failure by
any Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the
Code or Section 302 of ERISA)



2









 







applicable to such Plan, in each case whether or not waived, (c) the filing pursuant
to, prior to the effectiveness of the applicable provisions of the Pension Act,
Section 412(d) of the Code or Section 303(d) of ERISA or, on and after the effectiveness of
the applicable provisions of the Pension Act, Section 412(c) of the Code or Section 302(c)
of ERISA, of an application for a waiver of the minimum funding standard with respect to any
Plan, (d) on and after the effectiveness of the applicable provisions of the Pension Act, a
determination that any Plan is, or is expected to be, in “at-risk” status (as defined in
Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), (e) the incurrence by Parent
or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the
termination of any Plan, (f) the receipt by Parent or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan or to
appoint a trustee to administer any Plan, (f) the incurrence by Parent or any ERISA
Affiliate of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan or (g) the receipt by Parent or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from Parent or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA or, on and after the effectiveness of the applicable provisions
of the Pension Act, in endangered or critical status, within the meaning of Section 305 of
ERISA.




     “Exchange Act” means the Securities Exchange Act of 1934, as amended.




     “Exchanges” shall have the meaning set forth in Section 2.2.




     “Existing Convertible Notes” shall have the meaning set forth in Section 2.2.




     “Existing Convertible Notes Indenture” means the Indenture relating to the
Existing Convertible Notes, dated as of November 23, 2004, between XM Satellite and The Bank
of New York, as Trustee, as amended by the First Supplemental Indenture, dated as of July
24, 2008, between XM Satellite and The Bank of New York Mellon, as Trustee, and as further
amended by the Second Supplemental Indenture, dated as of July 28, 2008, among XM Satellite,
Parent and The Bank of New York Mellon, as Trustee.




     “Financial Statements” shall have the meaning set forth in Section 3.17(b).




     “GAAP” means generally accepted accounting principles in the United States of
America as in effect from time to time.




     “Governmental Authority” means the government of the United States of America,
any other nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government and shall include any self-regulatory organization
to whose authority any Person is subject, including but not limited to the Financial
Industry Regulatory Authority (FINRA).




     “Guarantors” shall have the meaning set forth in the recitals hereto.




     “Hazardous Materials” means all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls,
radon gas, infectious or medical wastes, and all other substances or wastes of any nature
regulated, limited or prohibited pursuant to any Environmental Law.



3









 






     “Indemnitees” shall have the meaning set forth in Section 7.2(a).




     “Material Adverse Effect” means a material adverse effect on (a) the business,
assets, operations or financial condition of the Parent and its Subsidiaries, taken as a
whole, (b) the business, assets, operations or financial condition of XM Satellite and its
Subsidiaries, taken as a whole, (c) the Mortgaged Property, taken as a whole, or (d) the
rights of or benefits available to Purchasers pursuant to this Agreement or the XM Satellite
Notes Indenture.




     “Mortgaged Property” has the meaning set forth in the XM Satellite Notes
Indenture.




     “Mortgages” has the meaning set forth in the XM Satellite Notes Indenture.




     “Multiemployer Plan” means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.




     “Non-WKSI Shelf” shall have the meaning set forth in Section 4.3.




     “Note Guarantees” means the Note Guarantees as defined in the XM Satellite
Notes Indenture.




     “Organizational Documents” means (i) with respect to any corporation, its
certificate or articles of incorporation or organization, as amended, and its by laws, as
amended, (ii) with respect to any limited partnership, its certificate of limited
partnership, as amended, and its partnership agreement, as amended, (iii) with respect to
any general partnership, its partnership agreement, as amended, and (iv) with respect to any
limited liability company, its certificate of articles of organization or formation, as
amended, and its operating agreement, as amended. In the event any term or condition of
this Agreement requires any Organizational Document to be certified by a secretary of state
or similar governmental official, the reference to any such “Organizational Document” shall
only be to a document of a type customarily certified by such governmental official.




     “Parent” shall have the meaning set forth in the preamble hereto.




     “Parent SEC Reports” means Parent’s Annual Report on Form 10-K for the year
ended December 31, 2007; Parent’s Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2008, June 30, 2008 and September 30, 2008; Parent’s Proxy Statement on Schedule
14A, filed on November 4, 2008, for its 2008 Annual Meeting of Stockholders, and any Current
Reports on Form 8-K filed by Parent on or after November 12, 2008, together in each case
with any documents incorporated by reference therein or exhibits thereto.




     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined
in ERISA and any successor entity performing similar functions.




     “Pension Act” means the Pension Protection Act of 2006, as amended from time to
time.




     “Person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, Governmental Authority or any other entity.




     “Plan” means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of



4









 







ERISA, and in respect of which Parent or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.




     “Prospectus Supplement” shall have the meaning set forth in Section 4.2.




     “Purchasers” shall have the meaning set forth in the preamble hereto.




     “Registration Rights Agreement” shall have the meaning set forth in Section
4.9.




     “Registration Statement” shall have the meaning set forth in Section 4.3.




     “Regulation T” means Regulation T of the Board of Governors of the Federal
Reserve System (or any successor provision), as it may be amended from time to time.




     “Regulation U” means Regulation U of the Board of Governors of the Federal
Reserve System (or any successor provision), as it may be amended from time to time.




     “Regulation X” means Regulation X of the Board of Governors of the Federal
Reserve System (or any successor provision), as it may be amended from time to time.




     “Release” means any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the
environment or within or upon any building, structure, facility or fixture.




     “SEC” means the Securities and Exchange Commission.




     “SEC Reports” means the Parent SEC Reports and the XM Satellite SEC Reports.




     “Securities Act” means the Securities Act of 1933, as amended.




     “Security Documents” shall have the meaning set forth in the XM Satellite Notes
Indenture.




     “Shelf Effectiveness Period” shall have the meaning set forth in Section 4.2.




     “Structuring Fee” shall have the meaning set forth in the recitals hereto.




     “Structuring Fee Shares” shall have the meaning set forth in Section 2.3(a).




     “Subsidiary” means, with respect to any Person (for purposes of this
definition, the “parent”) at any date, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be consolidated with
those of the parent in the parent’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the total voting power
of the Voting Stock or, in the case of a partnership, more than 50% of the equity or more
than 50% of the general partnership interests are, as of such date, owned, controlled or
held by the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.




     “Suspension Period” shall have the meaning set forth in Section 4.4.



5









 






     “Tax” or “Taxes” means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.




     “Transaction Documents” means, collectively, this Agreement, including the
Registration Rights Agreement set forth in Exhibit B herein, the XM Satellite Notes, the
Note Guarantees, the XM Satellite Notes Indenture and the Security Documents.




     “Trust Indenture Act” or “TIA” shall have the meaning set forth in the
XM Satellite Notes Indenture.




     “Voting Stock” of a Person means all classes of capital stock of such Person
outstanding and normally entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof.




     “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.




     “WKSI Shelf” shall have the meaning set forth in Section 3.21.




     “XM Eckington” shall have the meaning set forth in the preamble hereto.




     “XM Investment” shall have the meaning set forth in the preamble hereto.




     “XM Satellite” shall have the meaning set forth in the preamble hereto.




     “XM Satellite Notes” shall have the meaning set forth in the preamble hereto.




     “XM Satellite Notes Indenture” means the Indenture, to be dated as of the
Closing Date, among XM Satellite, the Guarantors, Parent and The Bank of New York Mellon, as
Trustee, in the form attached as Exhibit A to this Agreement, relating to the XM
Satellite Notes.




     “XM Satellite SEC Reports” means XM Satellite’s Annual Report on Form 10-K for
the year ended December 31, 2007; XM Satellite’s Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2008, June 30, 2008 and September 30, 2008; the XM Satellite’s
Proxy Statement on Schedule 14A, filed on June 3, 2008, for its 2008 Annual Meeting of
Stockholders, and any Current Reports on Form 8-K filed by XM Satellite on or after November
12, 2008, together in each case with any documents incorporated by reference therein or
exhibits thereto.



          Section 1.2 Terms Generally. Unless the context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such agreement, instrument
or other document as in effect on the date hereof, and in the case of the XM Satellite Notes
Indenture, as in effect on the Closing Date, (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns and (c) the words “including” and
“includes” shall mean “including without limitation” and “includes without limitation”, as
applicable.




          Section 1.3 Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word “from” means “from and including”, the words
“to” and “until” each means “to but excluding”, and the word “within” means “from and excluding a
specified date and to and including a later specified date.”




6









 




The definitions of all terms defined
herein shall include the singular as well as the plural form of such terms and the masculine of
such terms as well as the feminine and neuter genders of such terms.




          Section 1.4 Accounting Terms. Accounting terms used but not otherwise defined herein shall have the meanings provided in,
and be construed in accordance with, GAAP.




ARTICLE II




EXCHANGE OF EXISTING NOTES FOR XM SATELLITE NOTES




          Section 2.1 Authorization and Issuance. Prior to the execution and delivery of this Agreement, (a) XM Satellite will authorize the
Exchanges, the issue of the XM Satellite Notes and any other matters incident to the Exchanges and
will cause the Guarantors to authorize the issue of the Note Guarantees and (b) Parent will
authorize the issuance of the Structuring Fee Shares. The XM Satellite Notes shall be in the form
specified in the XM Satellite Notes Indenture.




          Section 2.2 Exchange of Existing Convertible Notes for XM Satellite Notes.




          (a) Subject to the terms and conditions of this Agreement, at the Closing, each of the
Purchasers shall surrender to XM Satellite for cancellation in accordance with the terms of the
Existing Convertible Notes Indenture, the aggregate principal amount of existing 10% Convertible
Senior Notes due 2009 (the “Existing Convertible Notes”) set forth opposite each such
Purchaser’s name in Column A on Schedule 1. Each Purchaser shall provide an instruction to The
Bank of New York Mellon, as trustee under the Existing Convertible Notes Indenture, to cancel the
Existing Convertible Notes so surrendered in the form set forth as Exhibit D. Simultaneously with
such surrender, XM Satellite will issue to each of the Purchasers XM Satellite Notes in the
aggregate principal amount as set forth opposite such Purchaser’s name in Column B on Schedule 1
(which shall be equal to 100% of the aggregate principal amount of the Existing Convertible Notes
being so surrendered by such Purchaser) to such Purchaser’s account set forth in Column C on
Schedule 1 (such exchanges, the “Exchanges”). For the avoidance of doubt, the Existing
Convertible Notes shall not be cancelled unless and until the XM Satellite Notes and the
Structuring Fee have been delivered.




          (b) On or after the Closing Date, each Purchaser hereby further consents and agrees to take
such actions as may be required to implement such holder’s consent through the book-entry
facilities of DTC to effect the transactions discussed herein, including but not limited to
instructing its DTC Participant to effect the surrender of Existing Convertible Notes on its behalf
through the Deposit/Withdrawal at Custodian (DWAC) procedures of DTC, and hereby authorizes the
Company to take any such actions on its behalf. Each Purchaser also consents and agrees to the
deliver to the Company on the Closing Date a Substitute Form W-8 or W-9, as applicable, in the form
set forth as Exhibit G.




          Section 2.3 Structuring Fee; Delivery Date.




          (a) Each Purchaser shall be entitled, at its election, to receive either (1) 833 shares of
Common Stock per $1,000 aggregate principal amount of Existing Convertible Notes set forth opposite
each such Purchaser’s name in Column A on Schedule 1, rounded down to the nearest whole number of
shares (the “Structuring Fee Shares”) or (2) $50 cash per $1,000 aggregate principal amount
of Existing Convertible Notes set forth opposite each such Purchaser’s name in Column A on Schedule
1 (the “Cash Fee”). No fractional shares shall be delivered. Each Purchaser shall make
its election in Column A on Schedule 2 and provide such election to the Company on the date of this
Agreement. The Structuring Fee Shares or the Cash Fee shall be delivered by the Company to each
Purchaser in accordance with the




7









 




instructions provided by the Purchaser in Column B or C,
respectively, on Schedule 2. Notwithstanding anything else in this Agreement, the Company shall
have no obligation to deliver the Structuring Fee Shares or the Cash Fee to any Purchaser prior to
receiving the corresponding election from such Purchaser.




          (b) The Structuring Fee Shares and the Cash Fee shall be delivered no later than 2:00 p.m.,
New York City time, on the Closing Date (the “Delivery Date”).




          (c) The obligations hereunder of the Purchasers to exchange their Existing Convertible Notes
for XM Satellite Notes are several and not joint, and no Purchaser shall have any liability to any
Person for the performance or non-performance by any other Purchaser. Each Purchaser shall be
entitled to protect and enforce its rights, including the rights arising out of this Agreement or
out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be
joined as an additional party in any proceeding for such purpose.




          Section 2.4 Closing. The closing of the Exchanges (the “Closing”) and the delivery of the Structuring
Fee Shares and/or the Cash Fee, as applicable, will take place on February 13, 2009, no later than
2:00 p.m., New York City time (the “Closing Date”), unless another date or time is agreed
to in writing by the parties hereto. The Closing shall be held at the offices of Simpson Thacher &
Bartlett LLP, 425 Lexington Avenue, New York, New York 10017, unless another place is agreed to in
writing by the parties hereto.




ARTICLE III




REPRESENTATIONS AND WARRANTIES OF XM SATELLITE, THE GUARANTORS AND PARENT




          XM Satellite, the Guarantors and Parent, jointly and severally, represent and warrant to the
Purchasers on and as of the date hereof (after giving pro forma effect to
Exchanges) and on the Closing Date that:




          Section 3.1 Organization; Powers. XM Satellite, the Guarantors and Parent (a) are duly organized, validly existing and in
good standing under the laws of their respective jurisdictions of organization, (b) have all
requisite power and authority to own and operate their respective properties, to conduct their
business as now conducted and as proposed to be conducted and are qualified to do business in each
of their respective jurisdictions, and (c) are in good standing in each jurisdiction where such
qualification is required, except where the
failure to be so qualified or in good standing, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.




          Section 3.2 Authorization and; Enforceability of this Agreement. This Agreement is duly executed and delivered by each of XM Satellite, the Guarantors and
Parent and this Agreement constitutes a legal, valid and binding obligation of XM Satellite, the
Guarantors and Parent, enforceable against each of them in accordance with its terms, subject to
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors’ rights generally and to the effect of general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).




          Section 3.3 Authorization and Enforceability of the Exchanges, the XM Satellite Note
Indenture, the XM Satellite Notes. the Note Guarantees and the Registration Rights Agreement.
The Exchanges (including the issuance of the XM Satellite Notes and the execution and delivery
of the XM Satellite Notes Indenture) are within XM Satellite’s organizational powers and have been
duly authorized




8









 




by all necessary corporate action. The issuance and sale of the Note Guarantees
are within the organizational powers of the Guarantors and have been duly authorized by all
necessary limited liability company action. The XM Satellite Notes Indenture and the XM Satellite
Notes constitute legal, valid and binding obligations of XM Satellite, the Guarantors and Parent
(in the case of the XM Satellite Notes Indenture), enforceable against them in accordance with
their respective terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect
of general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law). The Registration Rights Agreement constitutes a legal, valid and
binding obligation of XM Satellite, the Guarantors and Parent, enforceable against them in
accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors’ rights generally, to the effect of
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and to public policy.




          Section 3.4 Authorization of the Structuring Fee Shares. The issuance of the Structuring Fee Shares is within Parent’s organizational powers. The
Structuring Fee Shares have been duly authorized by all necessary corporate action, and, when
issued and delivered as provided herein, will be duly and validly issued, fully paid and
nonassessable, and the issuance of the Structuring Fee Shares is not subject to any preemptive or
any similar rights.




          Section 3.5 Governmental Consents; No Conflicts. (i) The consummation of the Exchanges, the issuance of the Structuring Fee Shares and the
execution, delivery and performance by XM Satellite, the Guarantors and Parent of the Transaction
Documents to which they are a party (a) do not require any authorization or approval or other
action by, or any notice to or filing with, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) do not and will not violate the charter,
bylaws or other organizational documents of Parent or any of its Subsidiaries, (c) do not require
any approval of stockholders or any approval or consent of any Person, except for such approvals
and consents which will be obtained on or before the Closing Date, and (d) will not (i) violate,
conflict with, or result in a breach of or default under any indenture, agreement or other
instrument binding upon Parent or any of its Subsidiaries or their respective assets, or give rise
to a right thereunder to require any payment to be made by Parent or any of its Subsidiaries or
(ii) violate any material order, judgment or decree of any court or other agency of any
Governmental Authority binding Parent or any of its Subsidiaries or (iii) violate any
provision of any law, regulation or governmental rule applicable to Parent or any of its
Subsidiaries, other than, in the case of (a), (b) with respect to Subsidiaries other than XM
Satellite and the Guarantors, (c) and (d) above, where the foregoing could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.




          Section 3.6 Properties.




          (a) XM Satellite and the Guarantors each have good title to, or valid leasehold interests in,
all real and personal property material to their respective businesses, except for defects in title
that do not materially interfere with their respective abilities to conduct their businesses as
currently conducted or to utilize such properties for their intended purposes.




          (b) XM Satellite and the Guarantors each own or are licensed to use all trademarks,
tradenames, copyrights, patents and other intellectual property material to their respective
businesses, and the use thereof by each of them does not infringe upon the rights of any other
Person, except for such infringements that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.




9









 








          (c) XM Satellite and the Guarantors have complied with all obligations under all leases to
which they are a party, and all such leases are in full force and effect, except, in each case,
where the failure so to comply or to be in effect, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. XM Satellite and the Guarantors
each enjoy peaceful and undisturbed possession under all such leases, other than leases in respect
of which the failure to enjoy peaceful and undisturbed possession could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.




          Section 3.7 Litigation. There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of Parent, threatened against or affecting XM
Satellite, the Guarantors, Parent or any of their respective properties (a) as to which there is a
reasonable possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or
(b) that involve the Transaction Documents, the Exchanges (including the sale and issuance of the
XM Satellite Notes) or the issuance of the Structuring Fee Shares. No injunction, writ, temporary
restraining order or any order of any nature is pending, threatened or has been issued by any court
or other Governmental Authority purporting to enjoin or restrain the execution, delivery or
performance of this Agreement, the Exchanges, the issuance of the Structuring Fee Shares or any of
the other transactions contemplated by the Transaction Documents.




          Section 3.8 Environmental Matters. Except with respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, none of XM Satellite, the Guarantors
or Parent (a) has failed to comply with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any Environmental Law, (b) has become subject
to any Environmental Liability, (c) has received notice of any claim with respect to any
Environmental Liability or (d) knows of any basis for any Environmental Liability.




          Section 3.9 Compliance with Laws and Agreements. Each of XM Satellite, the Guarantors and Parent is in compliance in all respects with all
laws, regulations and orders of and restrictions imposed by all Governmental Authorities applicable
to each of them or their respective properties and all indentures, agreements and other instruments
binding upon each of them or their respective properties, or in respect of the conduct of their
respective businesses and the ownership of their respective properties, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.




          Section 3.10 Investment Company Act. XM Satellite is not, and after giving effect to the Transactions will not be, an
“investment company” or a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.




          Section 3.11 Taxes. Each of XM Satellite, the Guarantors and Parent have timely filed or caused to be filed all
Tax returns and reports required to have been filed by each of them and have paid or caused to be
paid all Taxes required to have been paid by each of them, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which they have set aside on their books
adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.




          Section 3.12 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. With respect to Parent, the present
value of all accumulated benefit obligations under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the




10









 




date of the most
recent financial statements for Parent reflecting such amounts, exceed by more than $100,000 the
fair market value of the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most recent financial
statements for Parent reflecting such amounts, exceed the fair market value of the assets of all
such underfunded Plans by more than $100,000.




          Section 3.13 Well-Known Seasoned Issuer Status. As of the last
applicable determination date pursuant to Rule 405 under the Securities Act,
Parent is a “Well-Known Seasoned Issuer” as defined in Rule 405, including not being as of such
determination date an “ineligible issuer” as defined in Rule 405.




          Section 3.14 Common Stock. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on
the Nasdaq Global Select Market. To Parent’s knowledge, there is no action pending to terminate
the registration of the Common Stock under the Exchange Act or delist the Common Stock from the
Nasdaq Global Select Market, nor has Parent received any written notification that the SEC or
NASDAQ is currently contemplating terminating such registration or listing.




          Section 3.15 Registration Statement, Prospectus Supplement and Incorporated Documents. The Registration Statement and the documents incorporated or deemed to be incorporated by
reference in the Registration Statement (including the Prospectus Supplement), at the time they
were filed or hereafter are filed with the SEC, and as of the Closing Date, complied and will
comply with the requirements of the Securities Act and the rules and regulations of the SEC
thereunder and the Exchange Act and the rules and regulations of the SEC thereunder, and did not
and will not contain any material misstatement of fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
materially misleading.




          Section 3.16 Subsidiaries; Capital Stock.




          (a) Schedule 3.16-1 sets forth, as of the date of this Agreement, the name and jurisdiction of
organization of, and the percentage of each class of capital stock owned by XM Satellite or any
Subsidiary in each Subsidiary.




          (b) The capital stock of Parent has been duly authorized and validly issued and is fully paid
and non-assessable. Except as set forth on Schedule 3.16-2, as of the date hereof, there is no
existing option, warrant, call, right, commitment or other agreement to which Parent is a party
requiring, and there is no membership interest or other capital stock of Parent outstanding which
upon conversion or exchange would require, the issuance by Parent of any additional membership
interests or other capital stock of Parent or other securities convertible into, exchangeable for
or evidencing the right to subscribe for or purchase, a membership interest or other capital stock
of Parent.




          Section 3.17 SEC Reports; Financial Statements.



          (a) Parent and XM Satellite have filed all required reports and other documents with the SEC
required to be filed by each of them since January 1, 2008. The information contained or
incorporated by reference in the SEC Reports was true and correct in all material respects as of
the respective dates of the filing thereof with the SEC (or if amended or superseded by a filing
prior to the date of this Agreement, then on the date of such filing); and, as of such respective
dates, the SEC Reports (taken together with each other SEC Report filed on or prior to such date)
did not contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.




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All of the SEC Reports, as of their respective dates,
complied as to form in all material respects with the applicable requirements of the Exchange Act
and the rules and regulations promulgated thereunder.




          (b) The financial statements included in the SEC Reports (collectively, the “Financial
Statements”) fairly present in all material respects the consolidated financial position of the
Parent and its Subsidiaries (with respect to the Parent SEC Reports) or XM Satellite and its
Subsidiaries (with respect to the XM Satellite SEC Reports) as of the dates indicated, and the
results of its operations and cash flows for the periods therein specified, all in accordance GAAP
throughout the periods therein specified (except as otherwise noted therein, and in the case of
quarterly financial statements except for the absence of footnote disclosure and subject, in the
case of interim periods, to normal year-end adjustments).




          (c) Except as disclosed in the XM Satellite SEC Reports, XM Satellite and its Subsidiaries
have not incurred any liabilities that are of a nature that would be required to be disclosed on a
balance sheet of XM Satellite and its Subsidiaries or the footnotes thereto prepared in conformity
with GAAP, other than (i) liabilities incurred in the ordinary course of business since October 1,
2008, and (ii) liabilities that would not reasonably be expected to have a Material Adverse Effect.




          Section 3.18 Insurance. Parent maintains in force for Parent and its Subsidiaries, with financially sound and
reputable insurance companies, and pays all premiums and costs related to, insurance coverage in
such amounts (with no greater risk retention) and against such risks as are customarily maintained
by companies of established repute engaged in the same or similar businesses as Parent and its
Subsidiaries.




          Section 3.19 Margin Regulations. Neither the issuance of the XM Satellite Notes in the Exchanges hereunder will not violate
the provisions of Regulation T, U or X of the Board.




          Section 3.20 No Registration. Subject to compliance by the Purchasers with the representations and warranties set forth
in Section 5.1, it is not necessary to register the XM Satellite Notes or the Structuring Fee
Shares under the Securities Act or to qualify the XM Satellite Notes Indenture under the TIA in
connection with (1) the offer, issue, sale and delivery in the manner contemplated by this
Agreement of the XM Satellite Notes to the Purchasers on the Closing Date or (2) the issue and
delivery of the Structuring Fee Shares to the Purchasers on the Delivery Date.




          Section 3.21 WKSI Shelf. The registration statement on Form S-3ASR filed by Parent with the SEC on December 30,
2008, file number 333-156495 (the “WKSI Shelf”) is an “automatic shelf registration
statement” as defined in Rule 405, is effective and conforms to the requirements of the Securities
Act.




          Section 3.22 Prospectus Supplement. Following the filing of the Prospectus Supplement by Parent naming the Purchasers as
selling stockholders, the Structuring Fee Shares issued on the Delivery Date will not constitute
“restricted securities” within the meaning of Rule 144 under the Securities Act and will be
transferable by the Purchasers pursuant to the Registration Statement.




          Section 3.23 Brokerage Fees. Neither Parent nor any of its Subsidiaries has paid, or is obligated to pay, to any Person
(other than as set forth on Schedule 3.23) any brokerage or finder’s fees in connection with the
Transactions.




          Section 3.24 PATRIOT Act. To the extent applicable, Parent and all its Subsidiaries are in compliance, in all
material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the United States Treasury Department (31 CFR, Subtitle B,




12









 




Chapter V,
as
amended) and any other enabling legislation or executive order relating thereto, and (ii) the
PATRIOT Act. No part of the proceeds of the XM Satellite Notes will be used, directly or
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official capacity,
in order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended.




          Section 3.25 No Bankruptcy. None of Parent or any of its Subsidiaries are a debtor in a case under Title 11 of the
United States Code or in any other bankruptcy, receivership, or any other insolvency proceeding in
any jurisdiction.




          Section 3.26 Concerning the Guarantors. Each Guarantor is organized solely for the purpose of acquiring, developing, owning,
holding, selling, leasing, transferring, exchanging, managing and operating their respective
interests in the Mortgaged Property and transacting lawful business that is incident, necessary and
appropriate to accomplish the foregoing. Neither Guarantor has any liability as a primary obligor
or guarantor under any of the debt instruments, indentures or agreements to which the Parent, XM
Satellite or any of their respective Subsidiaries is a party. Neither of the Guarantors is a
“Restricted Subsidiary” as defined in any of the material indentures or other credit agreements to
which Parent is a party. Neither Guarantor has any material indebtedness, and each Guarantor has
valid and marketable title to their respective interests in the Mortgaged Property, free and clear
of all liens and encumbrances other than those that would not materially adversely affect the
operation of the Mortgaged Property.




ARTICLE IV

TRANSACTION COVENANTS




          Section 4.1 Maintenance of Parent’s WKSI Shelf. Parent shall use reasonable best efforts to keep its WKSI Shelf continuously effective,
supplemented and amended as required by the Securities Act and to the extent necessary to ensure
that it conforms with the requirements of the Securities Act and the rules and regulations of the
SEC promulgated thereunder until at least March 2, 2009; provided, that if Parent meets the
requirements of a “Well-Known Seasoned Issuer” (as such term is defined in Rule 405 of the
Securities Act) on March 2, 2009, Parent shall keep its WKSI Shelf effective, supplemented and
amended as required by the Securities Act until the Purchasers have sold all of the Structuring Fee
Shares.




          Section 4.2 Eligibility to Resell the Structuring Fee Shares under the Parent WKSI
Shelf.




          (a) No later than the Closing Date and subject to receipt of all required information from
each Purchaser, substantially in the form of Exhibit F, Parent shall file a supplement to Parent’s
WKSI Shelf (a “Prospectus Supplement”) naming each of the Purchasers as selling
stockholders for the Structuring Fee Shares issued to the Purchasers on the Delivery Date. In the
event that any Prospectus Supplement filed hereunder is no longer usable for resales of the
Structuring Fee Shares by the Purchasers, Parent shall use reasonable best efforts to amend such
Prospectus Supplement or shall file an additional Prospectus Supplement to provide for the resale
of the Structuring Fee Shares; provided that
(1) Parent shall not be required to file an additional Prospectus Supplement naming a
Purchaser as a selling securityholder earlier than 10 business days after it receives all required
information from such Purchaser and (2) Parent shall not be obligated to file an additional
Prospectus Supplement for the purpose of naming a Purchaser as a selling securityholder more than
once in any calendar month period. In order to sell shares of Common Stock under the Prospectus
Supplement, each Purchaser shall provide an instruction to The Bank of New York Mellon, as transfer
agent, in the form set forth as Exhibit E.




13









 




Other than such delivery and compliance with federal
and state securities laws, no other action by such Purchaser shall be necessary to sell Shares of
Common Stock under the Prospectus Supplement.




          (b) Subject to Section 4.4, Parent agrees to use reasonable best efforts to keep the such
Prospectus Supplement continuously usable until the earlier of (i) the six-month anniversary of the
Closing Date or (ii) when all such Structuring Fee Shares are eligible to be sold immediately
without volume, manner of sale, filing or other restrictions by non-affiliates of Parent pursuant
to Rule 144 (or any similar rule then in force, but not Rule 144A) under the Securities Act or
(iii) when all the Structuring Fee Shares covered by the Prospectus Supplement have been sold
pursuant to the WKSI Shelf or any other registration statement filed by Parent (the “Shelf
Effectiveness Period”).




          Section 4.3 Filing of Parent Non-WKSI Shelf. Prior to losing its status as a “Well-Known Seasoned Issuer,” Parent shall file a
post-effective amendment to the WKSI Shelf to conform the WKSI Shelf in all respects to the
requirements of a non-automatic shelf registration statement filed by a “Seasoned Issuer” (as such
term is defined in Rule 405 of the Securities Act) that is not a “Well-Known Seasoned Issuer.”
Immediately upon losing its status as a “Well-Known Seasoned Issuer,” Parent shall file a new
non-automatic shelf registration statement on Form S-3 or a post-effective amendment to its
existing shelf (in either case, a “Non-WKSI Shelf” and, together with Parent’s WKSI Shelf,
the “Registration Statement”) to provide for the resale of the Structuring Fee Shares
subject to the terms and conditions hereof.




          Section 4.4 Suspension. Notwithstanding anything else to the contrary, Parent may suspend the availability of the
Registration Statement by written notice to the Purchasers for a period not to exceed an aggregate
of 15 days in any 90-day period (each such period, a “Suspension Period”) if an event
occurs and is continuing as a result of which the Registration Statement, any related prospectus,
any amendment or supplement thereto, or any document incorporated by reference therein would, in
Parent’s judgment, contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, Suspension Periods shall
not exceed an aggregate of 60 days in any 360-day period. Parent shall not specify in the written
notice to the Purchasers the nature of the event giving rise to the Suspension Period.




          Section 4.5 Covenant Regarding Offerings. If requested by any Purchaser, Parent will use reasonable best efforts to assist the
Purchasers in completing any sale process undertaken in connection with the resale of the Notes or
any portion thereof as set forth in the Registration Rights Agreement.




          Section 4.6 Rules 144 and 144A. Parent shall file the reports required to be filed by it (if so required) under the
Securities Act and the Exchange Act in a timely manner and if, at any time Parent is not required
to file such
reports, it will make publicly available other information necessary to permit sales pursuant
to Rule 144 and Rule 144A. Upon the written request of any holder of the XM Satellite Notes,
Parent shall deliver to it a written statement as to whether it has complied with such information
and requirements.




          Section 4.7 Existing Convertible Notes. From the date of this Agreement until the Closing Date, XM Satellite shall not and shall
not allow its Subsidiaries to purchase Existing Convertible Notes for cash or exchange new
indebtedness for Existing Convertible Notes.




          Section 4.8 Covenant to File 8-Ks. Parent will file a Current Report on Form 8-K with the SEC with respect to the Exchanges
and the initial issuance of the Structuring Fee Shares no later than one Business Day after the
date of this Agreement. Parent will provide drafts of the Form 8-K




14









 




required by this Section 4.7 to
the Purchasers for their review and comment as soon as practicable before the filing thereof.




          Section 4.9 Registration Rights.




          XM Satellite, Parent, the Guarantors and the Purchasers shall be bound by the terms,
conditions and agreements set forth in Exhibit B (such terms, conditions and agreements,
collectively, the “Registration Rights Agreement”) as of the date hereof.




ARTICLE V




REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS




          Each Purchaser, severally and not jointly, represents to each of XM Satellite, the Guarantors
and Parent as of the date hereof and on the Closing Date as follows:




          Section 5.1 Purchase Representations and Warranties.




          (a) Such Purchaser is acquiring the XM Satellite Notes for its own account or an account that
it manages, for investment purposes only and not with a view to any distribution thereof within the
meaning of the Securities Act. Such Purchaser is acquiring the Structuring Fee Shares for its own
account or an account that it manages and not with a view to any distribution thereof in violation
of the Securities Act.




          (b) Such Purchaser has received such information as it deems necessary in order to make an
investment decision with respect to the XM Satellite Notes and the Structuring Fee Shares and has
had the opportunity to ask questions of and receive answers from XM Satellite and its officers and
directors and to obtain such additional information which XM Satellite possesses or could acquire
without unreasonable effort or expense as such Purchaser deems necessary to verify the accuracy of
the information furnished to such Purchaser and has asked such questions, received such answers and
obtained such information as it deems necessary to verify the accuracy of the information furnished
to such Purchaser.




          (c) Such Purchaser is an Accredited Investor.




          (d) Such Purchaser understands that neither the XM Satellite Notes nor the Structuring Fee
Shares have been registered under the Securities Act or any state or other securities law, that the
XM Satellite Notes and the Structuring Fee Shares are being issued by XM Satellite and Parent,
respectively, in transactions exempt from the registration requirements of the Securities Act and
that the XM Satellite Notes and the Structuring Fee Shares may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from registration under the
Securities Act is available.




          (e) Such Purchaser did not employ any broker or finder in connection with the Exchanges or the
issuance of the Structuring Fee Shares and no fees or commissions are payable to or by the
Purchasers except as forth in this Agreement.




          (f) Either (i) no portion of the assets used by the Purchaser to acquire or hold the XM
Satellite Notes constitute the assets of any “employee benefit plan” within the meaning of Section
3(3) of ERISA that is subject to Title I of ERISA, plan, individual retirement account or other
arrangement that is subject to Section 4975 of the Code
or provisions under any other federal,
state, local, non-U.S. or other law or regulation that is similar to Section 406 of ERISA or
Section 4975 of the Code




15









 




(collectively, “Similar Laws”) or entity whose underlying assets
are considered to include “plan assets” of any such employee benefit plan, plan, account or
arrangement or (ii) the acquisition and holding of such XM Satellite Notes will not constitute a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a
similar violation under any applicable Similar Law.




          Section 5.2 Corporate Power; Authorization; Enforceability. The execution, delivery and performance of this Agreement are within such Purchaser’s
corporate, limited liability company or limited partnership, as the case may be, power and
authority and have been duly authorized by all necessary action of such Purchaser, do not conflict
with or result in a breach of or violate any of such Purchaser’s governing documents or any
contract to which such Purchaser is a party or by which its assets are bound or any applicable laws
and constitutes a legal, valid and binding agreement of such Purchaser enforceable against it in
accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting creditors’ rights generally and
general principles of equity (whether considered in a proceeding in equity or law).




          Section 5.3 No Actions or Proceedings. There are no legal or governmental actions, suits or proceedings pending or, to any
Purchaser’s knowledge, threatened against or affecting such Purchaser, or any of its properties or
assets which, if adversely determined, in the aggregate, would reasonably be expected to materially
and adversely affect the ability of such Purchaser to consummate any of the Exchanges or the
receipt of the Structuring Fee Shares.




          Section 5.4 Ownership of Existing Convertible Notes. Each Purchaser represents and warrants that it is the beneficial owner of, or the
investment adviser or manager for the beneficial owner of, the aggregate principal amount of
Existing Convertible Notes set forth opposite such Purchaser’s name in Column A to Schedule 1 to
this Agreement. Each Purchaser further represents that such Existing Convertible Notes are held
through the book-entry facilities of DTC by the DTC participant set forth in Column A to Schedule 1
to this Agreement. From the date of this Agreement until the Closing Date, each Purchaser shall
not and shall
not allow any of its Affiliates to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any Existing Convertible Notes surrendered by such Purchaser for
exchange hereunder.




          Section 5.5 Accuracy of Purchaser Information. Each Purchaser represents and warrants that the information it has provided in writing to
the Company in the form of Exhibit F and the information is Schedule 1 is true, correct and
complete, as of the date hereof and as of the Closing Date.




ARTICLE VI




CONDITIONS PRECEDENT




          Section 6.1 Conditions to Obligations of the Purchasers. Each Purchaser’s obligation to consummate the Exchanges on the Closing Date is subject to
the satisfaction or express waiver by it prior to the Closing Date of the following conditions,
which conditions have been satisfied as of the Closing Date:




          (a) Representations and Warranties. The representations and warranties made by XM
Satellite, the Guarantors and Parent in Article III of this Agreement and in any of the other
Transaction Documents shall be true and correct as of the Closing Date, as though then made.




          (b) Performance; No Default under Other Agreements. Each of XM Satellite, the Guarantors and Parent shall have performed and complied in all
material respects with all agreements and covenants contained herein and in the Transaction
Documents required to be performed or complied with




16









 




by them prior to or on the Closing Date (or
such compliance shall have been waived on terms and conditions reasonably satisfactory to each
Purchaser) and, after giving effect to the issuance and sale of the XM Satellite Notes and the
Structuring Fee Shares and the cancellation of the Existing Convertible Notes received pursuant to
the Exchanges, no default or event of default shall have occurred and be continuing under (i) the
XM Satellite Notes Indenture or (ii) any other material indenture, agreement or other instrument
binding upon Parent or its Subsidiaries.




          (c) Closing Certificate. XM Satellite, the Guarantors and Parent shall have delivered to the Purchasers closing
certificates, dated as of the Closing Date, certifying, among other things, as to (i) the
Organizational Documents of XM Satellite, the Guarantors and Parent, certified as of a recent date
by an appropriate governmental official, (ii) the incumbency and signatures of their respective
applicable officers, and (iii) other corporate proceedings relating to the authorization, execution
and delivery of the Transaction Documents.




          (d) Continued Listing. Trading or quotation in Parent’s Common Stock shall not have
been suspended or limited by the SEC or by the NASDAQ, and Parent shall not have received any
notice indicating that its shares will be suspended or limited.




          (e) Listing Approval. All applicable Structuring Fee Shares to be issued to the
Purchasers shall have been approved for listing on the NASDAQ, subject only to notice of issuance.




          (f) Opinion of Counsel. The Purchasers shall have received, or shall receive following the delivery of the Structuring
Fee Shares and the filing of the Prospectus Supplement, the opinion of Simpson Thacher & Bartlett
LLP, counsel for XM Satellite, the Guarantors and Parent, dated the Closing Date and substantially
in the form attached hereto as Exhibit C.




          (g) Proceedings and Documents. Each Purchaser shall have received a copy of the Transaction Documents, in each case fully
executed. XM Satellite and The Bank of New York Mellon shall have executed and delivered the XM
Satellite Notes Indenture in the form attached hereto as Exhibit A. The Security Documents shall
have been executed and delivered by the respective parties thereto. The Mortgages shall have been
recorded and the designated title company shall have executed and delivered the letter contemplated
by clause (a)(ii) of the Collateral Requirement (as that term is defined in the XM Satellite Notes
Indenture).




          (h) PORTAL and CUSIP. The XM Satellite Notes shall be designated PORTAL securities in
accordance with the rules and regulations adopted by the NASD relating to the PORTAL Market and all
necessary Committee on Uniform Securities Identification Procedure numbers (CUSIP numbers) for the
Notes shall have been obtained for creating a market in Notes traded pursuant to Rule 144A under
the Securities Act or which are not “restricted securities” for purposes of Rule 144 under the
Securities Act.




          (i) Exchange Amounts; Structuring Fee Shares. On the Closing Date, each Purchaser shall have received from XM Satellite and Parent,
respectively, in exchange for Existing Convertible Notes in the aggregate principal amount set
forth in Column A to Schedule 1, the aggregate principal amount of XM Satellite Notes set forth
each such Purchaser’s name in Column B to Schedule I and the number of Structuring Fee Shares
and/or the Cash Fee due on the Closing Date pursuant to Section 2.3(a).




          (j) Payment of Expenses. On the Closing Date, each Purchaser and counsel for the
Purchasers shall have received from Parent all costs and expenses incurred under this Agreement
through the Closing Date for which invoices have been presented (including the reasonable fees and




17









 




disbursements of Brown Rudnick LLP, counsel to certain of the Purchasers, to the extent not already
paid) by a wire transfer of immediately available funds made on the Closing Date from Parent to
bank accounts designated by each Purchaser and counsel to the Purchasers; provided that to the
extent invoices therefor have not been so presented on the Closing Date, all other fees shall be
paid within 30 days of an invoice having been presented to Parent.




          (k) No Bankruptcy Filing. On the Closing Date, none of Parent or any of its Subsidiaries shall be a debtor in a
bankruptcy case or have filed for bankruptcy (under title 11 of the United States Code or any other
bankruptcy, receivership, or any other insolvency proceeding in any jurisdiction).




          Section 6.2 Conditions to Obligations of XM Satellite, the Guarantors and Parent. The respective obligations of XM Satellite, the Guarantors and Parent to consummate the
Exchanges (including the issuance of the XM Satellite Notes) and to consummate the issuances of the
Structuring Fee Shares and/or the delivery of the Cash Fee on the Closing Date are subject to the
satisfaction or express waiver by them prior to the Closing Date of the following conditions:




          (a) Representations and Warranties. Each of the representations and warranties of the Purchasers in this Agreement shall be
true and correct in all material respects on or as of the Closing Date as if made on and as of the
Closing Date.




          (b) Performance: No Default under Other Agreement. The Purchasers shall have performed and complied in all material respects with all
agreements and covenants contained herein required to be performed or complied with by them prior
to or on the Closing Date (or such compliance shall have been waived on terms and conditions
reasonably satisfactory to XM Satellite) and, after giving effect to the consummation of the
Exchanges (including the issuance and sale of the XM Satellite Notes) or the issuances of the
Structuring Fee Shares, no default or event of default shall have occurred and be continuing under
the XM Satellite Notes Indenture.




          Section 6.3 Conditions to Obligations of Each of the Parties. The respective obligations of XM Satellite, the Guarantors and Parent, on the one hand, and
each of the Purchasers, severally and not jointly, on the other hand, is subject to the
satisfaction or express waiver prior to the Closing Date of the following condition:




          (a) Exchanges Permitted by Applicable Law. On the Closing Date, the Exchanges shall (i) be permitted by the laws and regulations of
each jurisdiction to which it is subject, and (ii) not violate any applicable law (including
Regulation U, Regulation T or Regulation X).




ARTICLE VII




EXPENSES, INDEMNIFICATION AND CONTRIBUTION




          Section 7.1 Expenses. XM Satellite will, after presentation of an invoice therefor, reimburse the Purchasers for
all reasonable and documented out-of-pocket costs and expenses (including reasonable legal
expenses) incurred in enforcing or defending any rights or remedies under this Agreement or in
responding to any subpoena or other legal process or informal investigative demand issued in
connection with this Agreement. XM Satellite will pay, and will save the Purchasers harmless from,
all claims in respect of any fees, costs or expenses if any, of brokers and finders in relation to
the Exchanges or the issuance of the Structuring Fee Shares.




          Section 7.2 Indemnification.




18









 








          (a) XM Satellite, the Guarantors and Parent, jointly and severally, shall indemnify and hold
harmless the Purchasers and each of their respective Affiliates, partners, stockholders, members,
directors, officers, agents, employees and controlling persons (collectively, the
“Indemnitees”) from and against any and all actual losses, claims, damages or liabilities
to any such Indemnitee in connection with or as a result of (i) the execution or delivery of this
Agreement or the performance by the parties of their
respective obligations hereunder and under the XM Satellite Notes Indenture and the Security
Documents or the consummation of the transactions contemplated hereby or thereby (including the
Exchanges or the issuance of the Structuring Fee Shares); (ii) the issuance of the XM Satellite
Notes or the Structuring Fee Shares; (iii) the breach by Parent or any of its Subsidiaries of any
representation, warranty or covenant contained in this Agreement or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages or liabilities are determined by a court of competent
jurisdiction by final and non-appealable judgment to have resulted from the bad faith, gross
negligence or willful misconduct of such Indemnitee.




          (b)





          (i) XM Satellite, the Guarantors and Parent, jointly and severally, shall indemnify and
hold harmless the Indemnitees from and against any and all actual losses, claims, damages or
liabilities to any such Indemnitee arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any issuer free
writing prospectus or prospectus relating to the Structuring Fee Shares (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;




          (ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission;




          (iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel to the Purchasers), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under Section 7.2(b)(i) or (ii).



          (c) Each Purchaser agrees, severally and not jointly, to indemnify and hold harmless XM
Satellite, the Guarantors and Parent, and each of their respective Affiliates, partners,
stockholders, members, directors, officers, agents, employees and controlling persons, to the same
extent as the indemnity set forth in paragraph (b)(i) above, in each case to the extent, but only
to the extent, any losses, claims, damages or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Purchaser or furnished to the Company in writing
by such Purchaser expressly for use in any Registration Statement, any prospectus or any issuer
free writing prospectus (provided that, for the




19









 




avoidance of doubt, such information shall be
deemed to include any free writing prospectus prepared by or on behalf of such Purchaser);
provided, however, that in no event shall the liability of any Purchaser for indemnification under
this Section 7.2(c) exceed the amount equal to the net proceeds received by such Purchaser from the
sale of securities pursuant to the Registration Statement.




          Section 7.3 Contribution.




          (a) If the indemnification provided for in Section 7.2 is for any reason unavailable to or
insufficient to hold harmless the indemnified person in respect of any or all actual losses,
claims, damages or liabilities referred to therein, the indemnifying person shall contribute to the
aggregate amount of such actual losses, claims, damages or liabilities incurred by the Indemnitees,
as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by
XM Satellite, the Guarantors and Parent on the one hand and the Indemnitees on the other hand from
the Transactions or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of XM Satellite, the Guarantors and Parent on the one
hand and of the Indemnitees on the other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The obligations of XM Satellite, the Guarantors and Parent pursuant to
this Section 7.3(a) shall be joint and several and the obligations of each Purchaser pursuant to
this Section 7.3(a) shall be several and not joint.




          (b) The relative benefit received by XM Satellite, the Guarantors and Parent in connection
with the Transactions shall be equal to the total aggregate principal amount of the Notes (before
deducting expenses) received by Sirius XM and the Guarantors. The relative benefit received by an
Indemnitee in connection with the Transactions shall be the net proceeds received by the applicable
Purchaser in the sale of the Structuring Fee Shares.




          (c) The relative fault of XM Satellite, the Guarantors and Parent on the one hand and the
Indemnitees on the other hand shall be determined by reference to, among other things, whether the
matters for which the Indemnitees are granted indemnification from XM Satellite, the Guarantors and
Parent arise pursuant to Section 7.2(a) or, in the case of matters for which the Indemnitees are
granted indemnification under Section 7.2(b) or matters for which XM Satellite, the Guarantors and
Parent are granted indemnification under Section 7.2(c), whether such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by XM Satellite, the Guarantors and Parent or by the Indemnitees and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.




          (d) XM Satellite, the Guarantors and Parent on the one hand and the Indemnitees on the other
hand agree that it would not be just and equitable if contribution pursuant to this Section 7.3
were determined by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.3. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an Indemnitee and referred to
above in this Section 7.3 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.




          Section 7.4 Waiver of Punitive Damages. To the extent permitted by applicable law, none of the parties hereto shall assert, and
each hereby waives, any claim against the other parties (including their respective Affiliates,
partners, stockholders, members, directors, officers, agents, employees and controlling persons),
on any theory of liability for special, indirect, consequential or




20









 




punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or
any agreement or instrument contemplated hereby and the transactions contemplated hereby (including
the Exchanges, the issuance of the XM Satellite Notes and the issuance of the Structuring Fee
Shares).




ARTICLE VIII

MISCELLANEOUS




          Section 8.1 Notices. Except as otherwise expressly provided herein, all notices and other communications shall
have been duly given and shall be effective (a) when delivered, (b) when transmitted via facsimile
(or other electronic device) to the number set out below if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service (charges prepaid), (c)
the day following the day (except that if such day is not a Business Day, then the next Business
Day) on which the same has been delivered prepaid to a reputable national overnight air courier
service or (d) the third Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at the address set forth
below, or at such other address as such party may specify by written notice to the other party
hereto:




          (a) if to a Purchaser or its nominee, to such Purchaser or its nominee at the address
specified in Schedule 1, or at such other address as the Purchaser or its nominee shall have
specified to XM Satellite in writing; and




          (b) if to XM Satellite, the Guarantors or Parent, to: XM Satellite Radio Holdings Inc., 1221
Avenue of the Americas, 36th Floor, New York, New York 10020, Attention: General
Counsel, Facsimile No.: (212) 584-5353, with a copy to: Simpson Thacher & Bartlett LLP, 425
Lexington Avenue, New York, New York 10017, Attention: Gary L. Sellers, Esq., John C. Ericson, Esq.
and Lesley Peng, Esq., Facsimile No.: (212) 455-2502, or at such other address as XM Satellite
shall have specified to the Purchasers in writing.




          Section 8.2 Benefit of Agreement and Assignments.




          (a) Except as otherwise expressly provided herein, all covenants, agreements and other
provisions contained in this Agreement by or on behalf of any of the parties hereto shall bind,
inure to the benefit of and be enforceable by their respective successors and assigns; provided,
that XM Satellite may not assign or transfer any of its rights or obligations without the prior
written consent of the other parties hereto.




          (b) Nothing in this Agreement, express or implied, shall give to any Person other than the
parties hereto or thereto and their successors and assigns any benefit or any legal or equitable
right, remedy or claim under this Agreement.




          Section 8.3 No Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in exercising any right, power or
privilege hereunder or under the XM Satellite Notes and no course of dealing between XM Satellite,
the Guarantors and Parent and any other party shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under the XM Satellite
Notes preclude any other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies provided herein and in the XM Satellite
Notes are cumulative and not exclusive of any rights or remedies that the parties would otherwise
have. No notice to or demand on XM Satellite the Guarantors or Parent shall entitle XM Satellite,
the Guarantors or Parent to any other or further notice
or demand in similar or other circumstances or




21









 




constitute a waiver of the rights of the other
parties hereto to any other or further action in any circumstances without notice or demand.




          Section 8.4 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which shall constitute one and the
same instrument. It shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart. Each counterpart may consist of a number of copies hereof,
each signed by less than all, but together signed by all, of the parties hereto. Delivery of an
executed signature page of this Agreement by facsimile (or other electronic device) shall be
effective as delivery of a manually executed counterpart hereof.




          Section 8.5 Headings. The headings of the sections and subsections hereof are provided for convenience only and
shall not in any way affect the meaning or construction of any provision of this Agreement.




          Section 8.6 Governing Law; Submission to Jurisdiction; Venue.




          (a) THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK.




          (b) Each of XM Satellite, the Guarantors and Parent submits to the non-exclusive jurisdiction
of the courts of the State of New York and the courts of the United States of America, in each case
located in the Borough of Manhattan, New York, New York over any suit, action or proceeding arising
under or in connection with this Agreement or the transactions contemplated hereby. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement shall affect any right that any Purchaser may otherwise have to
bring any action or proceeding relating to this Agreement against XM Satellite, the Guarantors or
Parent, or their respective properties in the courts of any jurisdiction.




          (c) Each of XM Satellite, the Guarantors and Parent hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any objection which it may now
or hereafter have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in Section 8.6(a). Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 8.1. Nothing in this Agreement shall affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




          (e) EACH PARTY HERETO HEREBY WAIVES, AND WILL CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO
WAIVE, ANY AND ALL RIGHTS ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT.




          Section 8.7 Severability. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,
such provision shall be fully severable to the extent of such illegality,




22









 




invalidity or
unenforceability and the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable provisions.




          Section 8.8 Entirety. This Agreement represents the entire agreement of the parties hereto and thereto, and
supersedes all prior agreements and understandings, oral or written, if any, relating to the
transactions contemplated herein or therein.




          Section 8.9 Survival of Covenants, Indemnities and Representations and Warranties. All covenants, representations and warranties made by XM Satellite herein shall survive the
execution and delivery of this Agreement, the enforcement, amendment or waiver of any provision of
this Agreement, the consummation of the Exchanges (including the issuance, delivery and transfer of
all or any portion of the XM Satellite Notes) or the issuance of the Structuring Fee Shares, and
the payment of principal of the XM Satellite Notes, and any other obligations hereunder, regardless
of any investigation made at any time by or on behalf of the Purchasers. The obligations of Parent
under of Article VIII of this Agreement shall survive the payment or transfer of any XM Satellite
Note or Structuring Fee Share, the enforcement, amendment or waiver of any provision of this
Agreement and the termination of this Agreement.




          Section 8.10 Construction. Each covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so that compliance with any
one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance
with any other covenant. Where any provision herein refers to action to be taken by any Person, or
which such Person is prohibited from taking, such provision shall he applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly specified in such
provision.




          Section 8.11 Incorporation. All Schedules and Exhibits attached hereto are incorporated as part of this Agreement as if
fully set forth herein.




          Section 8.12 No Personal Obligations. Notwithstanding anything to the contrary contained herein, it is expressly understood and
the Purchasers expressly agree that nothing contained herein or in any other document contemplated
hereby or thereby (whether from a covenant, representation, warranty or other provision herein or
therein) shall create, or be construed as creating, any personal liability of any stockholder,
director, officer or employee of XM Satellite, the Guarantors or Parent, respectively, in such
Person’s capacity as such, with respect to (a) any payment obligation of XM Satellite, the
Guarantors or Parent made hereunder or in any other document contemplated hereby or thereby, (b)
any obligation of XM Satellite, the Guarantors or
Parent to perform any covenant, undertaking, indemnification or agreement, either express or
implied, contained herein, (c) any representation or warranty contained herein, (d) any other claim
or liability to the Purchasers under or arising under this Agreement or in any other document
contemplated hereby or thereby, or (e) any credit extended or loan made hereunder or in any other
document contemplated hereby or thereby; provided that nothing herein shall be deemed to be
a waiver of claims arising from fraud.




          Section 8.13 Currency. Unless otherwise specified, all dollar amounts referred to in this Agreement are in lawful
money of the United States.




[Remainder of Page Intentionally Left Blank]





23









 








          IN WITNESS WHEREOF, XM Satellite Radio Holdings Inc., XM 1500 Eckington LLC, XM Investment
LLC, XM Sirius Radio Inc. and each of the Purchasers listed on Schedule 1 hereto have caused this
Agreement to be signed by their respective officers thereunto duly authorized, all as of the date
first set forth above.




	 	 	 	 	 
	 	XM SATELLITE RADIO HOLDINGS INC.

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	Secretary 	 
	 
	 	SIRIUS XM RADIO INC.

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	Executive Vice President, General Counsel and Secretary 	 
	 
	 	XM 1500 ECKINGTON LLC

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	Secretary 	 
	 
	 	XM INVESTMENT LLC

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	Secretary 	 
	 




1









 





	 	 	 	 	 	 	 
	 	 	Canyon Capital Arbitrage Master Fund Ltd	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mitchell R. Julis	 	 
	 

	 	Name:
	 	 

Mitchell R. Julis
	 	 
	 

	 	Title:
	 	Managing Partner	 	 
	 
	 	 	 	 	 	 
	 	 	Canyon Capital Realization Fund (Cayman) Ltd	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mitchell R. Julis	 	 
	 

	 	Name:
	 	 

Mitchell R. Julis
	 	 
	 

	 	Title:
	 	Managing Partner	 	 
	 
	 	 	 	 	 	 
	 	 	Canyon Capital Realization Fund Mac 18 Ltd	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mitchell R. Julis	 	 
	 

	 	Name:
	 	 

Mitchell R. Julis
	 	 
	 

	 	Title:
	 	Managing Partner	 	 
	 
	 	 	 	 	 	 
	 	 	Canyon Capital Value Realization Fund Ltd	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mitchell R. Julis	 	 
	 

	 	Name:
	 	 

Mitchell R. Julis
	 	 
	 

	 	Title:
	 	Managing Partner	 	 






2









 






	 	 	 	 	 	 	 
	 	 	John Handcock High Yield Bond Fund	 	 
	 	 	By: MFC Global Investment Management (U.S.), LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Diane Landers	 	 
	 

	 	Name:
	 	 

Diane Landers
	 	 
	 

	 	Title:
	 	Vice President, Chief Administrative Officer	 	 
	 
	 	 	 	 	 	 
	 	 	John Handcock Funds II High Income Fund

By: MFC Global Investment Management (U.S.), LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Diane Landers	 	 
	 

	 	Name:
	 	 

Diane Landers
	 	 
	 

	 	Title:
	 	Vice President, Chief Administrative Officer	 	 
	 
	 	 	 	 	 	 
	 	 	John Handcock Funds II Strategic Income Fund

By: MFC Global Investment Management (U.S.), LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Diane Landers	 	 
	 

	 	Name:
	 	 

Diane Landers
	 	 
	 

	 	Title:
	 	Vice President, Chief Administrative Officer	 	 
	 
	 	 	 	 	 	 
	 	 	John Handcock High Income Trust

By: MFC Global Investment Management (U.S.), LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Diane Landers	 	 
	 

	 	Name:
	 	 

Diane Landers
	 	 
	 

	 	Title:
	 	Vice President, Chief Administrative Officer	 	 






3









 






	 	 	 	 	 	 	 
	 	 	John Handcock Trust Strategic Income Trust

By: MFC Global Investment Management (U.S.), LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Diane Landers	 	 
	 

	 	Name:
	 	 

Diane Landers
	 	 
	 

	 	Title:
	 	Vice President, Chief Administrative Officer	 	 
	 
	 	 	 	 	 	 
	 	 	John Handcock Strategic Income

By: MFC Global Investment Management (U.S.), LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Diane Landers	 	 
	 

	 	Name:
	 	 

Diane Landers
	 	 
	 

	 	Title:
	 	Vice President, Chief Administrative Officer	 	 
	 
	 	 	 	 	 	 
	 	 	MGF High Yield Fund

By: MFC Global Investment Management (U.S.), LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Diane Landers	 	 
	 

	 	Name:
	 	 

Diane Landers
	 	 
	 

	 	Title:
	 	Vice President, Chief Administrative Officer	 	 






4









 






	 	 	 	 	 	 	 
	 	 	Radcliffe SPC, Ltd., for and on behalf of the Class A Segregated Portfolio	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gerald F. Stahlecker	 	 
	 

	 	Name:
	 	 

Gerald F. Stalhecker
	 	 
	 

	 	Title:
	 	Managing Director	 	 






5









 






	 	 	 	 	 	 	 
	 	 	Liberty Harbor Master fund I, L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	By: Liberty Harbor I GP, LLC, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brendan McGovern	 	 
	 

	 	Name:
	 	 

Brendan McGovern
	 	 
	 

	 	Title:
	 	Vice President	 	 






6









 






	 	 	 	 	 	 	 
	 	 	Long Island International Limited	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Adam Janisch	 	 
	 

	 	Name:
	 	 

Adam Janisch
	 	 
	 

	 	Title:
	 	Director	 	 






7









 






	 	 	 	 	 	 	 
	 	 	Credit Suisse Securities (USA) LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Douglas Teresko	 	 
	 

	 	Title:
	 	 

Director
	 	 






8









 






	 	 	 	 	 	 	 
	 	 	Whitebox Convertible Arbitrage Partners, LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jonathan Wood	 	 
	 

	 	Title:
	 	 

Chief Operating Officer/Director
	 	 
	 
	 	 	 	 	 	 
	 	 	Whitebox Combined Partners LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jonathan Wood	 	 
	 

	 	Title:
	 	 

Chief Operating Officer/Director
	 	 
	 
	 	 	 	 	 	 
	 	 	IAM Mini-Fund 14 Ltd	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jonathan Wood	 	 
	 

	 	Title:
	 	 

Chief Operating Officer/Director
	 	 






9









 






	 	 	 	 	 	 	 
	 	 	Wolverine Convertible Arbitrage Fund Trading Limited	 	 
	 
	 	 	 	 	 	 
	 	 	By: Wolverine Asset Management LLC, its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ July Kula	 	 
	 

	 	Title:
	 	 

Chief Financial Officer
	 	 







10











 








Exhibit A




Form of Sirius XM Notes Indenture




1









 








Exhibit B




Registration Rights Agreement





2









 








Exhibit C




Opinion of Simpson Thacher & Bartlett LLP





 









 








Exhibit D




Form of Instruction to Trustee to Cancel Notes




February 13, 2009




The Bank of New York

as Trustee (“Trustee”)

     of the 10% Senior Convertible Notes due 2009

101 Barclay Street, 8 West

New York, New York 10286

Attention: Corporate Trust Administration

Facsimile No.: (212) 815-5707




Re: Request to Cancel Global Notes




Ladies and Gentlemen:




     Reference is made to the Indenture, dated as of November 23, 2004, as amended (the
“Indenture”), among XM Satellite Radio Holdings Inc. (the “Issuer”) and the Trustee, relating to
$400,000,000 aggregate principal amount of the Issuer’s 10% Convertible Senior Notes (CUSIP Nos.
98375Y AP 1 and 983759 AC 5) (the “Notes”).



     We hereby instruct the Trustee and Registrar to cause to be cancelled cancel the Notes
delivered herewith in the amounts set forth opposite such Notes on Annex A hereto, each
having been tendered to you by the respective holder of such Notes, and to provide evidence of such
cancelled notes to the undersigned.



     Capitalized terms used herein and not otherwise defined have the meanings ascribed to such
terms in the Indenture, as applicable.



[Remainder of the page intentionally left blank]




 









 








Very truly yours,




	 	 	 	 	 
	 

	 	[PURCHASER]	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 

Name:
	 	 
	 

	 	 
	 	 
	 

	 	Title:	 	 
	 

	 	 
	 	 






 









 










Annex A




	 	 	 	 
	Account	 	 	Principal Amount of Notes Accepted for Tender and to be
	Number	 	 	Cancelled
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 







 









 










Exhibit E




Form of Letter to the Transfer Agent for Sales under the Prospectus Supplement




NOTICE OF TRANSFER OF SECURITIES

PURSUANT TO PROSPECTUS SUPPLEMENT




Sirius XM Radio Inc.

1221 Avenue of the Americas, 36th floor

New York, New York 10020

Attention: General Counsel




The Bank of New York Mellon, as Trustee

Corporate Trust Office

101 Barclay Street, 8 West

New York, New York 10286

Attention: Corporate Trust Administration





			
	RE:	 	Sale of Common Stock pursuant to the Sirius XM
Radio Inc.’s (the “Company”) Prospectus
Supplement dated February 13, 2009 (the
“Prospectus”)





Ladies and Gentlemen:




     Please be advised that on February 13, 2009 the undersigned sold $172,485,000 shares of the common
stock of the Company (the “Shares”). Such sale was made in a manner described under the captioned
“Plan of Distribution” in the Prospectus, and the undersigned has satisfied the prospectus delivery
requirement or the notice of registration delivery requirement. As such, please transfer the
Shares from [Name and account of transferor’s Registered Holder] in the Bank of New York Mellon’s
book entry system to [Name of transferee’s DTC Participant and account information] on the DWAC
system. Please contact [   ] with any question regarding the foregoing.



	 	 	 	 	 
	 

	 	Very truly yours,	 	 
	 
	 	 	 	 
	Dated:                                         

	 	By:	 	 
	 

	 	 

Print Name:
	 	 
	 

	 	 
	 	 
	 

	 	Title:	 	 
	 

	 	 
	 	 
	 

	 	Address:	 	 
	 

	 	 
	 	 
	 

	 	Phone:	 	 
	 

	 	 
	 	 
	 

	 	Fax:	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	Email:	 	 
	 

	 	 
	 	 






 









 








Exhibit F




Form of Selling Stockholder Questionnaire




SIRIUS XM RADIO INC.

SELLING STOCKHOLDER

QUESTIONNAIRE



The undersigned beneficial owner of shares of common stock, par value $0.001 per share (the “Common
Stock”), of Sirius XM Radio Inc. (the “Company”) understands that the Company has filed a shelf
registration statement on Form S-3 (File No. 333-156495) (the “Shelf Registration Statement”) with
the Securities and Exchange Commission (the “SEC”) and intends to file with the SEC a prospectus
supplement (the “Prospectus Supplement”) to the Shelf Registration Statement for registration and
resale of shares of Common Stock (the “Registrable Common Stock”) issued to the undersigned
pursuant to the Note Purchase Agreement, by and among the Company, certain stockholders and other
parties named therein (the “Note Purchase Agreement”).



In order to sell or otherwise dispose of any Registrable Common Stock pursuant to the Shelf
Registration Statement, a beneficial owner of Registrable Common Stock generally will be required
to be named as a Selling Stockholder in the Prospectus Supplement, deliver the Prospectus
Supplement to purchasers of Registrable Common Stock (or a notice of registration pursuant to Rule
173 of the Securities Act of 1933, as amended) and be bound by those provisions of the Note
Purchase Agreement applicable to such beneficial owner (including certain indemnification
provisions). Beneficial owners are required to complete and deliver this Selling Stockholder
Questionnaire so that such beneficial owners may be named as Selling Stockholders in the Prospectus
Supplement.



Certain legal consequences may arise from being named as Selling Stockholders in the Prospectus
Supplement. Accordingly, holders and beneficial owners of Registrable Common Stock are advised to
consult their own securities law counsel regarding the consequences of being named or not being
named as a Selling Stockholder in the Prospectus Supplement.



Completed questionnaires should be returned to the Grenfel Calheiros at Simpson Thacher & Bartlett
by facsimile at 212-455-2502 or PDF at gcalheiros@stblaw.com, with the original copy to follow to:




Grenfel S. Calheiros

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017



The undersigned beneficial owner (the “Selling Stockholder”) of Registrable Common Stock hereby
gives notice to the Company of its intention to sell or otherwise dispose of Registrable Common
Stock beneficially owned by it and listed below in Item (3) (unless otherwise specified under Item
(4)) pursuant to the Shelf Registration Statement.




 









 







Please respond to every item, even if your response is “none” or “not applicable.” The undersigned
hereby provides the following information to the Company and represents and warrants that such
information is accurate and complete:




QUESTIONNAIRE





	1.	(a) 	Full Legal Name of Selling Stockholder:
	 
	 	 

	 
	 	(b) 	Full Legal Name of DTC Participant (if applicable and if not the same as (b) above)
through which shares of Common Stock listed in Item (3) below are held:
	 
	 	 







	 
	2. 	Address for Notices to Selling Stockholder:
	 
	 	 

	 
	 	 






			
	Telephone:
	 	 
	 


	 	 
	Fax:
	 	 
	 


	 	 
	Email address:
	 	 
	 


	 	 
	Contact Person:
	 	 
	 


	 	 







	3. 	Beneficial Ownership of Registrable Common Stock:
	 
	 	Amount of shares of Registrable Common Stock beneficially owned:                     
	 
	4.	Election to Include Registrable Common Stock in Prospectus Supplement
	 
	 	If less than all, please indicate the number of shares listed in Item (3) above that you elect
to include in the Prospectus


	 
	 	Supplement:                     






 









 






	5.	 	(a) Other than as set forth in your response to Item 3 above, do you beneficially own any
other securities of the Company that are convertible into or exercisable or exchangeable for
Common Stock?
	 
	 	 	      [     ] Yes.

      [     ] No.
	 
	 	 	(b) If your answer to Item 5(a) above is yes, state the type, the aggregate amount and
CUSIP No. of such other securities of the Company beneficially owned by you:





Type:




 





Aggregate amount:




 





CUSIP No.:




 






	6.	 	Relationship with the Company:




Except as set forth below, neither the undersigned nor any of its affiliates, directors or
principal equity holders (5% or more) has held any position or office or has any other material
relationship with the Company (or its predecessors or affiliates) during the past three years.





	 	 	State any exceptions here:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	7.	 	Broker-Dealer Status:




Is the Selling Stockholder a registered broker-dealer? Yes [     ] No [     ]



Note: In general we will be required to identify any registered broker-dealer as an underwriter in
the prospectus.





	8.	 	Affiliation with Broker-Dealers:




Is the Selling Stockholder an affiliate of a registered broker-dealer? An “affiliate” of a
specified person or entity means a person or entity that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with, the person or entity
specified.




Yes [     ] No [     ]



If so, please answer the remaining questions in this section.



A. Please describe the affiliation between the Selling Stockholder and any registered
broker-dealers:





	 	 	 

	 
	 	 	 

	 
	 	 	 







	 	 	B. If the shares of Common Stock were purchased by the Selling Stockholder other than in
the ordinary course of business, please describe the circumstances:






	 	 	 





 









 






	 	 	 

	 
	 	 	 







	 	 	C. If the Selling Stockholder, at the time of its purchase of the shares of Common Stock,
had any agreements or understandings, directly or indirectly, with any person to distribute
the shares of Common Stock, please describe such agreements or understandings:






	 	 	 

	 
	 	 	 







	 	 	Note: If the Selling Stockholder is an affiliate of a broker-dealer and did not purchase
its shares of Common Stock in the ordinary course of business or at the time of the purchase
had any agreements or understandings, directly or indirectly, to distribute the shares of
Common Stock, we must identify the Selling Stockholder as an underwriter in the prospectus.
	 
	9.	 	Beneficial Ownership:
	 
	 	 	(a) Please state the name of the person or entity who has voting or investment power over
the shares of Common Stock held by the Selling Stockholder. Please describe who has or
shares: (i) voting power, which includes the power to vote, or to direct the voting of, such
security; and/or, (ii) investment power, which includes the power to dispose, or to direct
the disposition of, the Common Stock held by the Selling Stockholder directly or indirectly,
through any contract, arrangement, understanding, relationship.






	 	 	 

	 
	 	 	 

	 
	 	 	 





 









 












	 	 	(b) Nature of Beneficial Ownership.






     If the name of the beneficial owner of the Registrable Common Stock set forth in your
response to Item 9(a) above is that of a limited partnership, state the names of the general
partners of such limited partnership:



 





 






(c) With respect to each general partner listed in Item 9(b) above who is not a natural
person, and is not publicly-held, name each shareholder (or holder of partnership interests,
if applicable) of such general partner. If any of these named shareholders are not natural
persons or publicly-held entities, please provide the same information. This process should
be repeated until you reach natural persons or a publicly-held entity.



 





 






(d) Name of your controlling shareholder(s) (the “Controlling Entity”). If the Controlling
Entity is not a natural person and is not a publicly-held entity, name each shareholder of
such Controlling Entity. If any of these named shareholders are not natural persons or
publicly-held entities, please provide the same information. This process should be
repeated until you reach natural persons or a publicly-held entity.




	 	(e)	(i) 	Full legal name of Controlling Entity(ies) or natural person(s) who have
sole or shared voting or dispositive power over the Registrable Common Stock:





 





 







	 	 	(ii) 	Business address (including street address) (or residence if no
business address), telephone number and facsimile number of such person(s):





Address:




Telephone No.:




 





Fax No.:




 






	 	(iii)	 	Name of shareholders:







 





 






	 	(f)	(i) 	Full legal name of Controlling Entity(ies):





 




 






	 	 	(ii) 	Business address (including street address) (or residence if no
business address), telephone number and facsimile number of such person(s):





Address:




 





 





Telephone No.:




 






	 	 	(iii) 	name of shareholders:





 




 





 









 






	10.	Plan of Distribution:




Except as set forth below, the undersigned (including its donees or pledgees) intends to distribute
the Common Stock listed above in Item (3) pursuant to the Prospectus Supplement only as provided in
the Plan of Distribution in the Prospectus Supplement.





State any exceptions here:




 





 





 



The undersigned acknowledges that it understands its obligation to comply with the provisions of
the Securities Exchange Act of 1934, as amended, and the rules thereunder relating to stock
manipulation, particularly Regulation M thereunder (or any successor rules or regulations), in
connection with any offering of Registrable Common Stock pursuant to the Shelf Registration
Statement. The undersigned agrees that neither it nor any person acting on its behalf will engage
in any transaction in violation of such provisions.



The undersigned hereby acknowledges its obligations under the Note Purchase Agreement to indemnify
and hold harmless certain persons set forth therein.



In accordance with the undersigned’s obligation under the Note Purchase Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration Statement and the
Prospectus Supplement, the undersigned agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein that may occur subsequent to the date hereof at any time
while the Shelf Registration Statement remains effective. All notices hereunder shall be made in
writing at the address set forth above.



By signing this Selling Stockholder Questionnaire, the undersigned consents to the disclosure of
the information contained herein in its answers to Items (1) through (10) above and the inclusion
of such information in the Prospectus Supplement. The undersigned understands that such information
will be relied upon by the Company without independent investigation or inquiry in connection with
the preparation of the Prospectus Supplement.




 









 







IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Selling Stockholder
Questionnaire to be executed and delivered either in person or by its authorized agent.




	 	 	 	 	 
	 	Beneficial Owner

 	 
	 	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         





 









 








Exhibit G




Substitute Form W-8 and Form W-9