EXHIBIT 3a
AMENDMENT NO. 1 TO JUNIOR SUBORDINATED SECURED EXCHANGEABLE NOTE AND
CONSENT
This Amendment No. 1 to Junior Subordinated Secured Exchangeable Note
and Consent (this "Amendment") is entered into as of the 7th day of July between
American Mobile Satellite Corporation, a Delaware corporation (the "Company"),
and Baron Asset Fund (the "Holder"), on behalf of The Baron Asset Fund Series, a
business trust organized under the laws of the Commonwealth of Massachusetts.
RECITALS
WHEREAS, the Company issued a Junior Subordinated Secured Exchangeable
Note (the "Note") dated January 15, 1999 in the principal amount of $21,500,000
in favor of the Holder;
WHEREAS, the Company and the Holder mutually desire to amend the terms
of the Note as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and the covenants set
forth herein, the parties agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Note.
2. Maturity. The words "on September 30, 2006" appearing in the first
paragraph of the Note shall be deleted and the following phrase substituted
therefor:
"(a) on December 31, 2004, or (b) by reason of
automatic extension without any action by any party, if XM
Satellite Radio Holdings Inc. ("XM Holdings") issues High
Yield Debt (as defined in the Exchange, Amendment and
Recapitalization Agreement dated as of July 7, 1999 between XM
Holdings and the Company (the "Recapitalization Agreement"))
prior to June 30, 2001, on the first Business Day (as defined
in the Recapitalization Agreement) following the date that is
six (6) months from the maturity date of such High Yield Debt
or, following such first issuance, any other High Yield Debt
issued prior to June 30, 2002, unless this Note is otherwise
exchanged in accordance with the terms hereof."
3. XM Common Stock.
(a) All references to "XM Common Stock" in the Note shall be
deleted and the words "XM Class B Common Stock" shall be substituted therefor.
Furthermore, the definition of "XM Common Stock" in Section 1(f) of the Note
shall be deleted in its entirety and the following shall be substituted
therefor:
"'XM Class B Common Stock' means the Class B common
stock of XM Holdings, having a par value of $0.01 per share,
or, in the event that the Company shall, at
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the relevant time, have converted the XM Class B Common Stock
held by it to XM Class A Common Stock, all references to 'XM
Class B Common Stock' shall be deemed to mean the Class A
Common Stock."
(b) A new definition of "XM Class A Common Stock" shall be
added to Section 1 of the Note as follows:
"'XM Class A Common Stock' means the Class A common stock
of XM Holdings, having a par value of $0.01 per share."
4. Consent. Pursuant to Section 2(l) of the Note Purchase Agreement
dated as of January 15, 1999 between the Company and the Holder, the Holder
hereby consents to the amendments to the XM Convertible Note contained in
Section 2.2 of the Exchange, Amendment and Recapitalization Agreement dated as
of July 7, 1999 between XM Holdings and the Company.
5. Miscellaneous: Except as specifically amended hereby, all terms and
provisions of the Note shall remain in full force and effect. This Amendment may
be executed in one or more counterparts, each of which shall be deemed an
original, and all of which, when taken together, shall be deemed to constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized directors,
officers or representatives as of the day and year first above written.
AMERICAN MOBILE SATELLITE
CORPORATION
By: /s/Xxxxx Xxxxx
--------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
BARON ASSET FUND, on behalf of
THE BARON ASSET FUND SERIES
By: /s/Xxxxxx Xxxxx
---------------
Name: Xxxxxx Xxxxx
Title: Chairman & CEO
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