Originally Posted by
homer985
It's too late... whoever wrote that didn't read the agreement very closely -- and I'm talking about the FULL agreement attached to one of Sirius' recent filings.
The agreement mentioning "May 17th" was for if they hadn't completed the 2nd phase by then... but now that the 2nd phase is completed - the two are married. They cannot and will not undo it at this point.
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EDIT: Looking through the agreement, there is no "May 17" deadline given to repay the $250MM XM loan. How and where that date came from, I don't know -- but it doesn't exist. I think they may have been thinking about the May expiration of the facilities -- however, those are now extended.
There was an April 15th non-solicit provision, which stated Sirius couldn't "shop around" for a better deal until April 15th... but the date is irrelavent now. The agreement makes it pretty clear that the termination of the agreement was only available to Sirius until the 2nd phase closed. The agreement stated that Sirius couldn't look for a better deal until after April 15 - but if one came along, they could terminate for a $7MM fee; after April 15th they could then shop around and also pay the termination fee. But this is irrelevant now because Phase 2 already closed. The point is moot.
"The Company agrees that until the earlier of the Closing Date and April 15, 2009 (the “Non-Solicitation Period”): (i) it and its executive officers and directors shall not, (ii) its Subsidiaries and its Subsidiaries’ executive officers and directors shall not, and (iii) it shall use reasonable best efforts to ensure that its and its Subsidiaries’ agents and representatives shall not, (A) directly or indirectly, initiate, solicit or knowingly encourage or facilitate any inquiries or the making of any proposal or offer with respect to (x) a tender offer or exchange offer or proposal for a merger, consolidation or other business combination involving the Company and its Subsidiaries, or an investment in Equity Securities representing 10% or more of the outstanding Equity Securities of the Company or (y) any proposal or offer to Refinance, or to raise funds to be available to Refinance, all or any substantial portion of the outstanding indebtedness of XM Opco and/or , XM Satellite Radio Holdings..."
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