CONSENT AND WAIVER
This Consent and Waiver is delivered by the undersigned in its capacity as a
party to the Third Amended and Restated Shareholders and Noteholders Agreement,
as amended, dated as of June 16, 2003, by and among XM Satellite Radio Holdings
Inc., a Delaware corporation ("Holdings"), and the parties named therein (the
"Noteholders Agreement"). Capitalized terms used but not defined herein shall
have the respective meanings ascribed to them in the Noteholders Agreement.
The undersigned hereby consents and agrees as follows:
A. CONSENTS REGARDING DEBT OFFERING.
The undersigned understands as follows: The Board of Directors of Holdings
has authorized an offering (the "144A Offering") pursuant to Section 4(2)
and Rule 144A under the Securities Act of 1933, as amended (the "Act") of
unsecured notes convertible into Class A Common Stock of Holdings at an
initial conversion premium of not less than 30% over the market price of
the Class A Common Stock at pricing (the "Convertible Notes"). If the 144A
Offering is consummated, Holdings would register the Convertible Notes and
Class A Common Stock issuable upon conversion of the Convertible Notes for
resale by the holders thereof. The registration of the Convertible Notes
and underlying Class A Common Stock as described in the preceding sentence
is referred to herein as the "Subsequent Registration." The indenture
pursuant to which the Convertible Notes will be issued will contain no
financial covenants and will not prohibit the issuance of additional debt
or the issuance or repurchase of securities. The proceeds of the 144A
Offering would be used for working capital and general corporate purposes
(the "Use of Proceeds").
Based upon the foregoing:
1. The undersigned consents to (i) the 144A Offering (including for
purposes of Section 6.1 of the Noteholders Agreement), the incurrence of
indebtedness represented by the Convertible Notes, the Use of Proceeds
and, for purposes of Section 5.1(c) of the Noteholders Agreement, the
issuance of Class A Common Stock upon conversion of the Convertible Notes,
and (ii) the waiver of the rights under Section 6.1 -- Right of First
Offer in respect of the 144A Offering, provided that the 144A Offering
closes on or prior to November 30, 2004.
2. The undersigned agrees that the Convertible Notes shall not reduce the
amount of Pari Passu Indebtedness which may be incurred under clause
8.3(i) of the Noteholders Agreement, but instead shall be treated as
Permitted Debt which is separately permitted under Section 8.3(xiv) of the
Noteholders Agreement.
B. WAIVER OF REGISTRATION RIGHTS.
The undersigned is a party to the Second Amended and Restated Registration
Rights Agreement, dated as of January 28, 2003, by and among Holdings and
the investors listed therein (the "Registration Rights Agreement"),
pursuant to which the undersigned has certain rights to effect a Piggyback
Registration (as defined in the Registration Rights Agreement). The
undersigned hereby consents to the amendment or waiver of the Registration
Rights Agreement such that Holders shall not have any right to cause a
Piggyback Registration in connection with the 144A Offering or the
Subsequent Registration. The undersigned, however, does not waive its
Piggyback Registration rights to have any of its Registrable Securities
(as defined in the Registration Rights Agreement) included in any other
issuances of securities.
C. MISCELLANEOUS.
Holdings shall pay the reasonable fees and expenses of the undersigned
incurred in connection with this Consent and Waiver.
Name of Holder: Aggregate principal amount of Notes at maturity:
American Honda Motor Co., Inc. $66,508,450.31
Dated as of November 22, 2004
By: /s/ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
ACKNOWLEDGED AND AGREED;
XM SATELLITE RADIO HOLDINGS INC.
By: --------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
