exv4w2






Exhibit 4.2




Execution Copy




XM SATELLITE RADIO INC.,




CERTAIN SUBSIDIARIES OF XM SATELLITE RADIO INC.



and



U.S. BANK NATIONAL ASSOCIATION,

as Trustee



SECOND SUPPLEMENTAL INDENTURE TO INDENTURE,

DATED AS OF JUNE 30, 2009



Dated as of October 27, 2010



 









 





          SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 27,
2010, among XM SATELLITE RADIO INC., a Delaware corporation (the “Company”), the
subsidiaries of the Company party hereto (the “Guarantors”), and U.S. BANK NATIONAL
ASSOCIATION, as trustee (the “Trustee”), to the indenture, dated as of June 30, 2009, among
the Company, the Guarantors, and the Trustee (as amended and supplemented to the date hereof, the
“Indenture”). Capitalized terms used and not defined herein shall have the meanings
ascribed to such terms in the Indenture.




          WHEREAS, the Company, the Guarantors and the Trustee have heretofore executed and delivered
the Indenture providing for the issuance of the 11.25% Senior Secured Notes due 2013 (collectively,
the “Notes”);




          WHEREAS, the Company has issued the Notes pursuant to the Indenture and there is currently
outstanding under the Indenture $525,750,000 in aggregate principal amount of the Notes;




          WHEREAS, the Company and the Guarantors desire to amend the Indenture and the Notes as set
forth herein;




          WHEREAS, Section 9.02 of the Indenture permits amendment of the Indenture and the Notes as
provided in Section 2 and Section 3 hereof by the Company, the Guarantors, and the Trustee with the
written consent of the Holders of at least a majority in aggregate principal amount of the
outstanding Notes, provided that any amendment, cost or waiver that would constitute a release of
all or substantially all of the Collateral from the Security Documents or all or substantially all
of the Note Guarantees requires the consent of Holders of not less than 66-2/3% of the Notes;




          WHEREAS, the Company has commenced, pursuant to the Offer to Purchase and Consent Solicitation
Statement of the Company, dated October 13, 2010 (the “Offer to Purchase”), an offer to
purchase all of the outstanding Notes and a solicitation to obtain (i) the written consent of the
Holders to the amendments to the Indenture and the Notes set forth in Section 2 and Section 3
hereof and (ii) the direction of the Holders to the Trustee to execute and deliver this
Supplemental Indenture (collectively, the “Consent”);




          WHEREAS, the Company has provided evidence to the Trustee that the Holders of at least 66-2/3%
in aggregate principal amount of the Notes currently outstanding have provided written consents to
the execution and delivery by the Trustee of this Supplemental Indenture in accordance with the
provisions of the Indenture;




          WHEREAS, the Company has delivered to the Trustee the Officers’ Certificate as well as the
Opinion of Counsel provided for in the Indenture relating to the execution and delivery of this
Supplemental Indenture; and




          WHEREAS, all acts and requirements necessary to make this Supplemental Indenture the legal,
valid and binding obligation of the Company and the Guarantors have been done.




 









 





          NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, and for other good and valuable consideration the receipt of which is hereby acknowledged,
the parties hereto agree as follows:




     1. COMPANY REPRESENTATIONS AND WARRANTIES. The Company hereby represents, warrants, and
certifies to the Trustee that the Holders of at least 66-2/3% in aggregate principal
amount of the Notes currently outstanding have provided Consents (the “Consenting
Securities”), and execution of this Supplemental Indenture is authorized and permitted by the
Indenture.



     2. AMENDMENTS TO THE INDENTURE.



     (a) The Indenture is hereby amended by (i) deleting the text of Sections 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.15, 4.16, 5.01(a)(2) and (3), 6.01(4), 6.01(5),
6.01(6), 6.01(9), 6.01(10), 6.01(11), 6.01(12), 10.01, 10.02, 10.03, 10.04, 10.05, 10.06, 11.01,
11.02, 11.03, 11.04, 11.05, 11.06, 11.07 and 11.08 of the Indenture in their entireties and
replacing them with the words “Intentionally Omitted,” and (ii) deleting all references to such
sections and clauses in their entirety, including without limitation all references, direct or
indirect, thereto in Section 6.01, “Events of Default.”



     (b) The Indenture is hereby amended by deleting the text of Section 6.01(2)(B) in its
entirety.



     (c) The Indenture is hereby amended by deleting the words “or any Significant Subsidiary”
from the text of Section 6.01(7).



     (d) The Indenture is hereby amended by deleting those definitions from the Indenture for
which all references to such definitions will be eliminated as a result of the provisions of
Section 2(a) of this Supplemental Indenture.



     (e) The Indenture is hereby amended by deleting the text of Exhibit 2 to the Indenture and
replacing it with the words “Intentionally Omitted.”



     3. AMENDMENTS TO THE NOTES.



     (a) The Notes are hereby amended by deleting the text of Section 8 on the reverse of the Notes
in its entirety and replacing it with the words “Intentionally Omitted.”



     (b) The Notes are hereby amended by deleting Section 14 on the reverse of the Notes in its
entirety and replacing it with the following:



     “14. Defaults and Remedies




     Under the Indenture, Events of Default include (a) default for 30 days in payment of
interest on the Notes; (b) default in payment of principal on the Notes at maturity, upon
redemption pursuant to paragraph 5 of the Notes, upon acceleration or otherwise, or failure
by the Company to redeem Notes when required; (c) failure by the Company to comply with
Article 5 of the Indenture; and (d) certain events of bankruptcy or



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insolvency with respect to the Company. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Notes may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Notes being due and payable immediately upon the
occurrence of such Events of Default.”



     4. MISCELLANEOUS.



     (a) Ratification of Agreement. As supplemented by this Supplemental Indenture,
the Indenture is in all respects ratified and confirmed and the Indenture, as so supplemented by
this Supplemental Indenture, shall be read, taken and construed as one and the same instrument.
Except as provided for in this Supplemental Indenture, all of the terms, provisions and conditions
of the Indenture and the Notes shall remain in full force and effect. The Consent of the Holders
of the Notes to this Supplemental Indenture shall not constitute an amendment or waiver of any
provision of the Indenture except to the extent expressly set forth herein, and shall not be
construed as a waiver or consent to any further or future action on the part of the Company.



     (b) Counterparts. This Supplemental Indenture may be executed by facsimile and
in one or more counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement. Each signed copy will be an original, but
all of them together represent the same agreement.



     (c) Governing Law. This Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York.



     (d) Effectiveness. This Supplemental Indenture shall be effective upon its execution
and delivery by the parties hereto. The amendments set forth in Section 2 and Section 3 hereof
will become operative concurrently with the Company’s first acceptance of the Consenting Securities
for payment pursuant to the Offer to Purchase.



     (e) Trustee. The Trustee accepts the trusts created by the Indenture, as amended and
supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and
conditions of the Indenture, as amended and supplemented by this Supplemental Indenture. Without
limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness
of the recitals herein contained and for the correctness of the Offer to Purchase, which shall be
taken as the statements of the Company, and the Trustee shall not be responsible or accountable in
any way whatsoever for or with respect to the validity or execution or sufficiency of this
Supplemental Indenture, and the Trustee makes no representation with respect thereto. All of the
provisions contained in the Indenture in respect of the rights, privileges, immunities, powers, and
duties of the Trustee shall be applicable in respect of this Supplemental Indenture as fully and
with like force and effect as though fully set forth in full herein.



     (f) Trust Indenture Act Controls. If any provision of this Supplemental Indenture
limits, qualifies, or conflicts with another provision of this Supplemental Indenture or the
Indenture that is required to be included by the Trust Indenture Act of 1939, as amended, as in
force at the date this Supplemental Indenture is executed, the provision required by said Act shall
control.



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     (g) Headings. The section headings herein are for convenience only and shall not
affect the construction thereof.



     (h) Severability. In case any provision in this Supplemental Indenture or the
Securities shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.



[signature page follows]






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          IN WITNESS WHEREOF, each of the undersigned has caused this Supplemental Indenture to be duly
executed as of the date first above written.




	 	 	 	 	 
	 	XM SATELLITE RADIO INC.

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	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 	 
	 
	 	XM EQUIPMENT LEASING LLC

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

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




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	 	XM EMALL INC.

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	Secretary 	 
	 
	 	XM CAPITAL RESOURCES INC.

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

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	Secretary 	 
	 
	 	EFFANEL MUSIC, INC.

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




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	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	/s/ Thomas E. Tabor
 	 
	 	 	Name:  	Thomas E. Tabor 	 
	 	 	Title:  	Vice President