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EXHIBIT 10.12.1.1
EXECUTION COPY
AMENDMENT NO. 1 AND WAIVER
to
ARIANESPACE CUSTOMER LOAN AGREEMENT
relating to Launch # 2
THIS AMENDMENT NO. 1 AND WAIVER (the "Amendment"), dated as of
July 22, 1997, between CD Radio Inc. (the "Customer") and Arianespace Finance
S.A. ("AEF"),
W I T N E S S E T H:
WHEREAS, the Customer and AEF are parties to the Arianespace
Customer Loan Agreement dated as of July 22, 1997 relating to Launch # 2 (the
"Agreement") (capitalized terms used and not otherwise defined herein shall
have the meanings ascribed thereto in the Agreement); and
WHEREAS, the Customer has requested, and AEF has agreed to,
the amendments to the Agreement more fully set forth herein; and
WHEREAS, the Customer and AEF have agreed to enter into this
Amendment on the same date as the Agreement; and
WHEREAS, such amendments shall be of benefit, either directly
or indirectly, to the Customer;
NOW, THEREFORE, in consideration of the covenants, conditions
and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Amendments. Upon and after the Amendment Effective
Date (as defined in Section 4 below), and at all times prior to the Conversion
Commitment Date; provided, that none of the amendments or waivers set in this
Amendment shall have any further force or effect on and after the Conversion
Commitment Date, except for any rights or entitlements accruing prior to the
Conversion Commitment Date:
(a) Section 1.01 shall be amended by adding
thereto the definition of "Amendment" as follows:
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"'AMENDMENT' means the Amendment No. 1 and Waiver to
Arianespace Customer Loan Agreement, dated as of July 22,
1997, between CD Radio Inc. and Arianespace Finance S.A.";
(b) Section 5.03 of the Agreement shall be
amended by restating the fourth and fifth sentences thereof in their entirety
as follows:
"Except as set forth on SCHEDULE 5.03A to the Amendment, (a)
there is no proceeding pending or, to the actual knowledge of
the Customer, threatened against the Customer or any property
of the Customer, which seeks, or may reasonably be expected,
to rescind, terminate, modify or suspend any
Telecommunications Approval or any other Government Approval
and (b) there has not occurred any event that would make
unlikely the delivery or issuance as anticipated of, and when
and as needed, all Government Approvals listed on SCHEDULE
5.03.";
(c) Section 5.04 of the Agreement shall be
amended by inserting therein the parenthetical phrase "(except for clause
(d)(iv) of Section 2 of the Amendment)" immediately following the phrase "to
which the Customer or any of its Affiliates is a party" set forth therein;
(d) Section 5.11 of the Agreement shall be
amended by restating the second sentence thereof in its entirety as follows:
"Except as set forth on SCHEDULE 5.11A to the Amendment, on
the date hereof, the Relevant Companies have obtained all
licenses, permits, authorizations and registrations required
under any Environmental Law ("ENVIRONMENTAL PERMITS")
necessary for the operation of the Project, all such
Environmental Permits are valid and in full force and effect
on the date hereof and the Relevant Companies are in
compliance with all terms and conditions of such Environmental
Permits on the date hereof.";
(e) Section 5.20 of the Agreement shall be
amended by inserting therein the phrase "Title IV of" immediately preceding the
phrase "ERISA and any regulation promulgated thereunder" set forth therein; and
(f) application of Section 7.08 of the Agreement
shall be waived; provided, that in the event that the Customer shall undertake
or permit any
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action or occurrence described in Section 7.08 of the Agreement, the Customer
hereby agrees to provide notice of each such action and occurrence to AEF
either prior to, or within a reasonable time after, such action or occurrence;
and provided, further, that with respect to any change in the composition of
the ownership of the Customer, no such notice shall be required unless such
change requires the filing, by the Customer or any other Person connected with
such change, of any report or filing with the United States Securities and
Exchange Commission or the securities commission or stock exchange of any state
of the United States of America having authority over the Customer, including
but not limited to the filing of Schedule 13D pursuant to the Securities
Exchange Act of 1934.
2. Waiver of Representation and Warranty. AEF hereby
waives the representation and warranty set forth in Section 5.21 of the
Agreement; subject to the following:
(a) AEF shall have received an opinion of Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, in form and substance reasonably
satisfactory to AEF, to the effect that, on the basis of the filing of
the application referred to in clause (b) below, the Customer is
exempt from the provisions of the U.S. Investment Company Act of 1940,
as amended (the "Act"), applicable to "investment companies" within
the meaning of the Act;
(b) the Customer hereby represents and warrants
that it has in good faith filed, or caused to be filed, an application
with the U.S. Securities and Exchange Commission (the "SEC") under
Section 3(b)(2) of the Act requesting an order declaring that the
Customer is primarily engaged in the business or businesses other than
that of investing, reinvesting, holding or trading in securities;
(c) in the event the SEC does not take final
action with respect to the application of the Customer referred to in
clause (b) above within the sixty (60) day period of exemption from
the provisions of the Act referred to in such Section 3(b)(2), or
within any extension of such period, the Customer hereby covenants to
use its best efforts to cause the SEC to grant an extension of such
period, as such period may have been extended from time to time;
(d) upon the earlier to occur of (x) the SEC's
denial of the Customer's request for the declaration referred to in
clause (b) and (y) the lapsing of the sixty (60) day exemption period
under Section 3(b)(2) of the Act, as such period may be extended from
time to time, (i) the Customer shall, as soon as reasonably possible,
and in any case, within ten (10) Business Days liquidate securities
then held in amounts and in a manner sufficient to permit Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx to deliver an opinion to the effect that
the Customer is not an "investment company" within the meaning of
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the Act, (ii) the Customer shall deliver to AEF such an opinion of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, addressed to AEF and in form
and substance reasonably satisfactory to AEF, (iii) at the time that
the Customer delivers the opinion referred to in clause (ii) above,
the Customer shall be deemed to have made the representation and
warranty set forth in Section 5.21 of the Agreement and (iv) the
Customer hereby agrees not to claim, or seek any declaration, that any
of the Customer Loan Agreement, the Multiparty Agreement or the Launch
Services Agreement is not legal, valid and binding by operation of the
Act;
(e) during the pendency of the application
referred to in clause (b) above, the Customer hereby covenants to act
in a manner fully consistent with such application; and
(f) in the event the SEC issues the order sought
by the Customer pursuant to the application referred to in clause (b)
above, the Customer shall (i) be deemed to have made, at the time such
declaration is granted, the representation and warranty set forth in
Section 5.21 of the Agreement, (ii) deliver to AEF an opinion of Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, addressed to AEF and in form and
substance reasonably satisfactory to AEF, that the Customer is not an
"investment company" within the meaning of the Act and (iii) comply
with the terms and conditions set forth in such order and use its best
efforts to cause such order to remain in full force and effect.
By its execution and delivery of this Amendment, AEF hereby
certifies and represents to the Customer that it has received the opinion of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx referred to in clause (a) of this
Section 2, such opinion is in form and substance satisfactory to AEF, and the
waiver granted to the Customer pursuant to this Section 2 is effective.
3. Customer Loan Agreement Interpretation. The Customer
and AEF hereby agree that any covenant, agreement or other provision set forth
in the Agreement that is stated to apply in the event that the Customer shall
have been determined to be a Category 1 Customer, a Category 2 Customer or a
Category 3 Customer, as the case may be, shall be applicable only on and after,
and shall take effect only as of, the Conversion Commitment Date, and not prior
thereto.
4. Amendment Effective Date; Term. This Amendment shall
become effective as of the date first referenced above on the date (the
"Amendment Effective Date") on which AEF shall have received this Amendment,
executed and delivered by the Customer and AEF; provided, that upon and after
the Conversion Commitment Date, this Amendment shall have no further force or
effect and all of the terms of the Agreement shall be as if this Amendment had
not become effective,
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except for any rights or entitlements accruing prior to the Conversion
Commitment Date.
5. Counterparts. This Amendment may be executed in
counterparts and by different parties hereto in separate counterparts, each of
which, when so executed, shall be deemed to be an original, and all of said
counterparts when taken together shall be deemed to constitute but one and the
same instrument.
6. Ratification. The Agreement, as amended by this
Amendment, is and shall continue to be in full force and effect and is hereby
in all respects confirmed, approved and ratified.
7. Governing Law. The rights and duties of the Customer
and AEF under this Amendment shall, pursuant to New York General Obligations
Law Section 5-1401, be governed by the law of the State of New York.
8. Reference to Agreement. From and after the Amendment
Effective Date, each reference in the Agreement to "this Agreement," "hereof,"
"hereunder" or words of like import, and all references to the Agreement in any
and all agreements, instruments, documents, notes, certificates and other
writings of every kind and nature, shall be deemed to mean the Agreement as
modified and amended by this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment No.
1 and Waiver to be duly executed as of the date first written above.
CD RADIO INC.
By:
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Name:
Title:
ARIANESPACE FINANCE S.A.
By:
---------------------------------
Name:
Title:
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Schedule 5.03A
Petitions have been filed to deny CD Radio Inc.'s application
before the Federal Communications Commission for a license to launch and
operate its Satellites.
See also Schedules 5.05, 5.11A.
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Schedule 5.11A
Requirements of the Federal Communications Commission
pertaining to the radiation emanating from earth stations.
