exv4w1






Exhibit 4.1




EXECUTION COPY



 




XM SATELLITE RADIO INC.




7.625% Senior Notes due 2018



 





INDENTURE



Dated as of October 27, 2010



 





U.S. BANK NATIONAL ASSOCIATION



Trustee


 




 









 





Table of Contents




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE 1

	 
	 	 	 	 
	Definitions and Incorporation by Reference

	 
	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Other Definitions
	 	 	27	 
	SECTION 1.03. Rules of Construction
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 2

	 
	 	 	 	 
	The Notes

	 
	 	 	 	 
	SECTION 2.01. Form and Dating
	 	 	30	 
	SECTION 2.02. Execution and Authentication
	 	 	30	 
	SECTION 2.03. Registrar and Paying Agent
	 	 	30	 
	SECTION 2.04. Paying Agent To Hold Money in Trust
	 	 	31	 
	SECTION 2.05. Noteholder Lists
	 	 	31	 
	SECTION 2.06. Transfer and Exchange
	 	 	31	 
	SECTION 2.07. Replacement Notes
	 	 	32	 
	SECTION 2.08. Outstanding Notes
	 	 	33	 
	SECTION 2.09. Temporary Notes
	 	 	33	 
	SECTION 2.10. Cancellation
	 	 	33	 
	SECTION 2.11. Defaulted Interest
	 	 	33	 
	SECTION 2.12. CUSIP Numbers, ISINs, etc
	 	 	34	 
	SECTION 2.13. Issuance of Additional Notes
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 3

	 
	 	 	 	 
	Redemption

	 
	 	 	 	 
	SECTION 3.01. Selection of Notes to Be Redeemed
	 	 	34	 
	SECTION 3.02. Notice of Redemption
	 	 	35	 
	SECTION 3.03. Effect of Notice of Redemption
	 	 	35	 
	SECTION 3.04. Deposit of Redemption Price
	 	 	36	 
	SECTION 3.05. Notes Redeemed in Part
	 	 	36	 
	SECTION 3.06. Optional Redemption
	 	 	36	 
	 
	 	 	 	 
	ARTICLE 4

	 
	 	 	 	 
	Covenants

	 
	 	 	 	 
	SECTION 4.01. Payment of Notes
	 	 	38	 
	SECTION 4.02. SEC Reports
	 	 	39	 






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	 	 	Page
	 
	 	 	 	 
	SECTION 4.03. Limitation on Indebtedness
	 	 	40	 
	SECTION 4.04. Limitation on Restricted Payments
	 	 	43	 
	SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries
	 	 	47	 
	SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock
	 	 	49	 
	SECTION 4.07. Limitation on Affiliate Transactions
	 	 	53	 
	SECTION 4.08. Limitation on Line of Business
	 	 	54	 
	SECTION 4.09. Limitation on the Sale or Issuance of Capital Stock of Restricted
Subsidiaries
	 	 	54	 
	SECTION 4.10. Change of Control
	 	 	55	 
	SECTION 4.11. Limitation on Liens
	 	 	56	 
	SECTION 4.12. Limitation on Sale/Leaseback Transactions
	 	 	57	 
	SECTION 4.13. Compliance Certificate
	 	 	57	 
	SECTION 4.14. Further Instruments and Acts
	 	 	57	 
	SECTION 4.15. Changes in Covenants When Notes Rated Investment Grade
	 	 	57	 
	SECTION 4.16. Limitation on Subordinated Indebtedness
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 5

	 
	 	 	 	 
	Successor Company

	 
	 	 	 	 
	SECTION 5.01. When Company May Merge or Transfer Assets
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 6

	 
	 	 	 	 
	Defaults and Remedies

	 
	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	59	 
	SECTION 6.02. Acceleration
	 	 	61	 
	SECTION 6.03. Other Remedies
	 	 	62	 
	SECTION 6.04. Waiver of Past Defaults
	 	 	62	 
	SECTION 6.05. Control by Majority
	 	 	62	 
	SECTION 6.06. Limitation on Suits
	 	 	62	 
	SECTION 6.07. Rights of Holders to Receive Payment
	 	 	63	 
	SECTION 6.08. Collection Suit by Trustee
	 	 	63	 
	SECTION 6.09. Trustee May File Proofs of Claim
	 	 	63	 
	SECTION 6.10. Priorities
	 	 	64	 
	SECTION 6.11. Undertaking for Costs
	 	 	64	 
	SECTION 6.12. Waiver of Stay or Extension Laws
	 	 	64	 
	SECTION 6.13. Sole Remedy for Failure to Report
	 	 	64	 
	 
	 	 	 	 
	ARTICLE 7

	 
	 	 	 	 
	Trustee

	 
	 	 	 	 
	SECTION 7.01. Duties of Trustee
	 	 	65	 
	SECTION 7.02. Rights of Trustee
	 	 	66	 






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	 	 	Page
	 
	 	 	 	 
	SECTION 7.03. Individual Rights of Trustee
	 	 	67	 
	SECTION 7.04. Trustee’s Disclaimer
	 	 	68	 
	SECTION 7.05. Notice of Defaults
	 	 	68	 
	SECTION 7.06. Reports by Trustee to Holders
	 	 	68	 
	SECTION 7.07. Compensation and Indemnity
	 	 	68	 
	SECTION 7.08. Replacement of Trustee
	 	 	69	 
	SECTION 7.09. Successor Trustee by Merger
	 	 	70	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	71	 
	SECTION 7.11. Trustee’s Application for Instructions from the Company
	 	 	71	 
	 
	 	 	 	 
	ARTICLE 8

	 
	 	 	 	 
	Discharge of Indenture; Defeasance

	 
	 	 	 	 
	SECTION 8.01. Discharge of Liability on Notes; Defeasance
	 	 	71	 
	SECTION 8.02. Conditions to Defeasance
	 	 	72	 
	SECTION 8.03. Application of Trust Money
	 	 	73	 
	SECTION 8.04. Repayment to Company
	 	 	73	 
	SECTION 8.05. Indemnity for Government Obligations
	 	 	73	 
	SECTION 8.06. Reinstatement
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 9

	 
	 	 	 	 
	Amendments

	 
	 	 	 	 
	SECTION 9.01. Without Consent of Holders
	 	 	74	 
	SECTION 9.02. With Consent of Holders
	 	 	75	 
	SECTION 9.03. Revocation and Effect of Consents and Waivers
	 	 	76	 
	SECTION 9.04. Notation on or Exchange of Notes
	 	 	76	 
	SECTION 9.05. Trustee To Sign Amendments
	 	 	76	 
	SECTION 9.06. Payment for Consent
	 	 	76	 
	 
	 	 	 	 
	ARTICLE 10

	 
	 	 	 	 
	Guarantee

	 
	 	 	 	 
	SECTION 10.01. Guarantee
	 	 	77	 
	SECTION 10.02. Limitation on Guarantor Liability
	 	 	78	 
	SECTION 10.03. Delivery of Note Guarantee
	 	 	78	 
	SECTION 10.04. Guarantors May Consolidate, etc., on Certain Terms
	 	 	78	 
	SECTION 10.05. Releases
	 	 	79	 
	SECTION 10.06. Addition of Guarantors
	 	 	80	 
	 
	 	 	 	 
	ARTICLE 11

	 
	 	 	 	 
	Miscellaneous

	 
	 	 	 	 
	SECTION 11.01. Notices
	 	 	81	 






iii









 






	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	SECTION 11.02. Communication by Holders with Other Holders
	 	 	82	 
	SECTION 11.03. Certificate and Opinion as to Conditions Precedent
	 	 	82	 
	SECTION 11.04. Statements Required in Certificate or Opinion
	 	 	82	 
	SECTION 11.05. When Notes Disregarded
	 	 	82	 
	SECTION 11.06. Rules by Trustee, Paying Agent and Registrar
	 	 	83	 
	SECTION 11.07. Legal Holidays
	 	 	83	 
	SECTION 11.08. Governing Law, Submission to Jurisdiction
	 	 	83	 
	SECTION 11.09. No Recourse Against Others
	 	 	83	 
	SECTION 11.10. Successors
	 	 	83	 
	SECTION 11.11. Multiple Originals
	 	 	83	 
	SECTION 11.12. Table of Contents; Headings
	 	 	83	 
	SECTION 11.13. Waiver of Jury Trial
	 	 	84	 
	SECTION 11.14. Force Majeure
	 	 	84	 





Rule 144A/Regulation S/IAI Appendix



Exhibit 1 – Form of Note



Exhibit 2 – Form of Supplemental Indenture (to be delivered by subsequent Guarantors)




iv









 





          INDENTURE dated as of October 27, 2010 among XM Satellite Radio Inc., a Delaware corporation
(the “Company”), the Guarantors (as defined) and U.S. Bank National Association, as trustee (the
“Trustee”).




          Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of 7.625% Senior Notes due 2018 (the “Notes”):




ARTICLE 1




Definitions and Incorporation by Reference



          SECTION 1.01. Definitions.




     “Additional Assets” means:




     (1) any property, plant, license or equipment used in a Related Business;




     (2) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or




     (3) Capital Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary;


provided, however, that any such Restricted Subsidiary described in clause (2) or (3) above is
primarily engaged in a Related Business.




     “Additional Notes” means Notes under this Indenture after the Issue Date and in compliance
with Sections 2.13 and 4.03, it being understood that any Notes issued in exchange for or
replacement of any Note issued on the Issue Date shall not be an Additional Note.



     “Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing. For purposes of Sections 4.04, 4.06 and
4.07 only, “Affiliate” shall also mean any beneficial owner of Capital Stock representing 10% or
more of the total voting power of the Voting Stock (on a fully diluted basis) of the Company
(excluding any Person permitted to report such ownership on Schedule 13G under the Exchange Act) or
of rights or warrants to purchase such Capital Stock (whether or not currently exercisable) and any
Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence
hereof.



     “Asset Disposition” means any sale, lease (other than an operating lease entered into in the
ordinary course of business), transfer or other disposition (or series of related sales, leases,
transfers or dispositions) by the Company or any Restricted Subsidiary, including any disposition



 









 




by means of a merger, consolidation or similar transaction (each referred to for the purposes
of this definition as a “disposition”), of:





     (1) any shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares or shares required by applicable law to be held by a Person other than the
Company or a Restricted Subsidiary);




     (2) all or substantially all the assets of any division or line of business of the
Company or any Restricted Subsidiary; or




     (3) any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary,


other than, in the case of clauses (1), (2) and (3) above,





     (A) a disposition by a Restricted Subsidiary to the Company or by the Company
or a Restricted Subsidiary to a Restricted Subsidiary;




     (B) for purposes of Section 4.06 only, (i) a disposition that constitutes a
Restricted Payment (or would constitute a Restricted Payment but for the exclusions
from the definition thereof) and that is not prohibited by Section 4.04; (ii) the
making of an Asset Swap and (iii) a disposition of all or substantially all the
assets of the Company in accordance with Section 5.01;




     (C) a disposition of assets with a fair market value of less than $10 million;




     (D) a disposition of cash or Temporary Cash Investments;




     (E) the creation of a Lien (but not the sale or other disposition of the
property subject to such Lien);




     (F) the licensing or sublicensing of intellectual property or other general
intangibles and licenses, leases or subleases of other property, provided, however,
such licensing or sublicensing shall not interfere in any material respect with the
Company’s continuing use of such intellectual property or other general intangibles
and licenses, leases or subleases of other property;




     (G) the sale or lease of equipment, inventory, accounts receivable or other
assets in the ordinary course of business;




     (H) any issuance or sale of Capital Stock of an Unrestricted Subsidiary;




     (I) foreclosure on assets;




     (J) disposition of damaged, obsolete or worn-out property in the ordinary
course of business;



2









 






     (K) any disposition of any interest in Canadian Satellite Radio Holdings Inc.
in connection with a merger, consolidation, joint venture or other combination with
SIRIUS Canada Inc.; and




     (L) a Company-Sirius Merger.



     “Asset Swap” means concurrent purchase and sale or exchange of Related Business Assets between
the Company or any of its Restricted Subsidiaries and another Person; provided that any cash
received is applied in accordance with Section 4.06.



     “Attributable Debt” in respect of a Sale/Leaseback Transaction means, as at the time of
determination, the present value (discounted at the interest rate borne by the Notes, compounded
annually) of the total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for which such lease
has been extended); provided, however, that if such Sale/Leaseback Transaction results in a Capital
Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance
with the definition of “Capital Lease Obligation.”



     “Average Life” means, as of the date of determination, with respect to any Indebtedness, the
quotient obtained by dividing:




     (1) the sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of or redemption or similar payment
with respect to such Indebtedness multiplied by the amount of such payment by




     (2) the sum of all such payments.



     “Board of Directors” means the Board of Directors of the Company or Sirius XM Radio Inc., as
the case may be, or any committee thereof duly authorized to act on behalf of such Board.



     “Business Day” means each day which is not a Legal Holiday. Any notice or payment due on any
day that is not a Business Day need not be made on such day, but may be made on the next succeeding
Business Day with the same force and effect as if made on such day.



     “Capital Lease Obligation” means an obligation that is required to be classified and accounted
for as a capital lease for financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligation shall be the capitalized amount of such obligation
determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty. For purposes of Section 4.11, a
Capital Lease Obligation will be deemed to be secured by a Lien on the property being leased.



     “Capital Stock” of any Person means any and all shares, interests (including partnership
interests), rights to purchase, warrants, options, participations or other equivalents of or
interests



3









 




in (however designated) equity of such Person, including any Preferred Stock, but excluding
any debt securities convertible into such equity.




     “Change of Control” means the occurrence of any of the following:




     (1) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this
clause (1) such person shall be deemed to have “beneficial ownership” of all shares that any
such person has the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company or Sirius XM Radio Inc. (for the purposes of this
clause (1), such other person shall be deemed to beneficially own any Voting Stock of a
Person held by any other Person (the “parent entity”), if such other person is the
beneficial owner (as defined above in this clause (1)), directly or indirectly, of more than
50% of the voting power of the Voting Stock of such parent entity);




     (2) the first day on which a majority of the members of the Board of Directors of the
Company or Sirius XM Radio Inc. are not Continuing Directors;




     (3) the adoption of a plan relating to the liquidation or dissolution of the Company or
Sirius XM Radio Inc.;




     (4) the merger or consolidation of the Company with or into another Person or the
merger of another Person with or into the Company, other than a transaction following which
holders of securities that represented 100% of the Voting Stock of the Company immediately
prior to such transaction (or other securities into which such securities are converted as
part of such merger or consolidation transaction) own directly or indirectly at least a
majority of the voting power of the Voting Stock of the surviving Person in such merger or
consolidation transaction immediately after such transaction; or




     (5) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its Restricted Subsidiaries
taken as a whole, or of Sirius XM Radio Inc. and its Subsidiaries taken as a whole, to any
“person” (as that term is used in Section 13(d)(3) of the Exchange Act);



     Notwithstanding the foregoing, the consummation of a Company-Sirius Merger will not constitute
a Change of Control under this Indenture.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Company” means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor.



     “Company-Sirius Merger” means (a) a merger or consolidation of the Company with or into Sirius
XM Radio Inc. or a merger or consolidation of Sirius XM Radio Inc. with or into the Company or (b)
any assignment, transfer, conveyance or other disposition of all or substantially



4









 




all of the properties or assets of the Company to Sirius XM Radio Inc. or of Sirius XM Radio
Inc. to the Company.




     “Company-Sirius Merger Date” means the date on which a Company-Sirius Merger is consummated.



     “Consolidated Income Tax Expense” means, with respect to the Company for any period, the
provision for federal, state, local and foreign taxes based on income or profits (including
franchise taxes) payable by the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP.



     “Consolidated Interest Expense” means, for any period, the total interest expense of the
Company and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including amortization of debt issuance costs and original issue discount), non-cash
interest payments, the interest component of any deferred payment Obligations, the interest
component of all payments associated with Capital Lease Obligations and Attributable Debt,
commissions, discounts and other fees and charges Incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to
Hedging Obligations.



     “Consolidated Leverage Ratio” as of any date of determination means the ratio of (x) the
aggregate amount of Indebtedness of the Company and its Restricted Subsidiaries as of such date of
determination to (y) Consolidated Operating Cash Flow for the most recent four consecutive fiscal
quarters ending prior to such date of determination for which financial information is available
(the “Reference Period”); provided, however, that:




     (1) if the transaction giving rise to the need to calculate the Consolidated Leverage
Ratio is an Incurrence of Indebtedness, the amount of such Indebtedness shall be calculated
after giving effect on a pro forma basis to such Indebtedness;




     (2) if the Company or any Restricted Subsidiary has repaid, repurchased, defeased or
otherwise discharged any Indebtedness that was outstanding as of the end of such fiscal
quarter or if any Indebtedness is to be repaid, repurchased, defeased or otherwise
discharged on the date of the transaction giving rise to the need to calculate the
Consolidated Leverage Ratio (other than, in each case, Indebtedness Incurred under any
revolving credit agreement), the aggregate amount of Indebtedness shall be calculated on a
pro forma basis and Consolidated Operating Cash Flow shall be calculated as if the Company
or such Restricted Subsidiary had not earned the interest income, if any, actually earned
during the Reference Period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness;




     (3) if since the beginning of the Reference Period the Company or any Restricted
Subsidiary shall have made any Asset Disposition, the Consolidated Operating Cash Flow for
the Reference Period shall be reduced by an amount equal to the Consolidated Operating Cash
Flow (if positive) directly attributable to the assets which are the subject of such Asset
Disposition for the Reference Period or increased by an



5









 







amount equal to the Consolidated Operating Cash Flow (if negative) directly
attributable thereto for the Reference Period;




     (4) if since the beginning of the Reference Period the Company or any Restricted
Subsidiary (by merger or otherwise) shall have made an Investment in any Restricted
Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets
which constitutes all or substantially all of an operating unit of a business, Consolidated
Operating Cash Flow for the Reference Period shall be calculated after giving pro forma
effect thereto (including the Incurrence of any Indebtedness) as if such Investment or
acquisition had occurred on the first day of the Reference Period; and




     (5) if since the beginning of the Reference Period any Person (that subsequently became
a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such Reference Period) shall have made any Asset Disposition, any
Investment or acquisition of assets that would have required an adjustment pursuant to
clause (3) or (4) above if made by the Company or a Restricted Subsidiary during the
Reference Period, Consolidated Operating Cash Flow for the Reference Period shall be
calculated after giving pro forma effect thereto as if such Asset Disposition, Investment or
acquisition had occurred on the first day of the Reference Period.



     For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred in connection therewith, the pro forma
calculations relating thereto shall be determined in accordance with GAAP in good faith by a
responsible financial or accounting Officer of the Company. If any Indebtedness bears a floating
rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness
if such Interest Rate Agreement has a remaining term in excess of 12 months). If any Indebtedness
is Incurred under a revolving credit facility and is being given pro forma effect, the interest on
such Indebtedness shall be calculated based on the average daily balance of such Indebtedness for
the four fiscal quarters subject to the pro forma calculation to the extent such Indebtedness was
Incurred solely for working capital purposes.



     “Consolidated Net Income” means, for any period, the net income of the Company and its
consolidated Subsidiaries; provided, however, that there shall not be included in such Consolidated
Net Income:




     (1) any net income of any Person (other than the Company) if such Person is not a
Restricted Subsidiary, except that:




     (A) subject to the exclusion contained in clauses (3), (4) and (5) below, the
Company’s equity in the net income of any such Person for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a



6









 







dividend or other distribution paid to a Restricted Subsidiary, to the
limitations contained in clause (2) below); and




     (B) the Company’s equity in a net loss of any such Person for such period shall
be included in determining such Consolidated Net Income to the extent such loss has
been funded with cash from the Company or a Restricted Subsidiary;




     (2) any net income of any Restricted Subsidiary if such Restricted Subsidiary is
subject to restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the Company,
except that:




     (A) subject to the exclusion contained in clauses (3), (4) and (5) below, the
Company’s equity in the net income of any such Restricted Subsidiary for such period
shall be included in such Consolidated Net Income up to the aggregate amount of cash
that could have been distributed by such Restricted Subsidiary during such period to
the Company or another Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid to another Restricted
Subsidiary, to the limitation contained in this clause); and




     (B) the Company’s equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net Income;




     (3) any gain (or loss) realized upon the sale or other disposition of any assets of the
Company or its consolidated Restricted Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) which is not sold or otherwise disposed of in the ordinary
course of business and any gain (or loss) realized upon the sale or other disposition of any
Capital Stock of any Person;




     (4) extraordinary gains or losses; and




     (5) the cumulative effect of a change in accounting principles,


in each case, for such period. Notwithstanding the foregoing, for the purpose of Section 4.04
only, there shall be excluded from Consolidated Net Income any repurchases, repayments or
redemptions of Investments, proceeds realized on the sale of Investments or return of capital to
the Company or a Restricted Subsidiary to the extent such repurchases, repayments, redemptions,
proceeds or returns increase the amount of Restricted Payments permitted under such Section
pursuant to Section 4.04(a)(3)(D).




     “Consolidated Operating Cash Flow” means, with respect to the Company and its Restricted
Subsidiaries on a consolidated basis, for any period, an amount equal to Consolidated Net Income
for such period increased (without duplication) by the sum of:



7









 






     (1) Consolidated Income Tax Expense accrued for such period to the extent deducted in
determining Consolidated Net Income for such period;




     (2) Consolidated Interest Expense for such period to the extent deducted in determining
Consolidated Net Income for such period; and




     (3) depreciation, amortization and any other noncash items for such period to the
extent deducted in determining Consolidated Net Income for such period (other than any
noncash item which requires the accrual of, or a reserve for, cash charges for any future
period) of the Company and the Restricted Subsidiaries (including amortization of
capitalized debt issuance costs for such period, any noncash compensation expense realized
for grants of stock options or other rights to officers, directors, consultants and
employees and noncash charges related to equity granted to third parties), all of the
foregoing determined on a consolidated basis in accordance with GAAP, and decreased by
noncash items to the extent they increase Consolidated Net Income (including the partial or
entire reversal of reserves taken in prior periods, but excluding reversals of accruals or
reserves for cash charges taken in prior periods) for such period.



     “Consolidated Total Assets” means the total assets of the Company and its consolidated
Restricted Subsidiaries, as shown on the most recent balance sheet of the Company, determined on a
consolidated basis in accordance with GAAP.



     “Continuing Directors” means, as of any date of determination, any member of the Board of
Directors who:




     (1) was a member of such Board of Directors on the Issue Date; or




     (2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such board at the time of such
nomination or election.



     “Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at 100
Wall Street, Suite 1600, New York, New York 10005, Attention: Corporate Trust Administration, or
such other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to the Holders and the Company).



     “Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.



     “Disqualified Stock” means, with respect to any Person, any Capital Stock which by its terms
(or by the terms of any security into which it is convertible or for which it is exchangeable at
the option of the holder) or upon the happening of any event:



8









 






     (1) matures or is mandatorily redeemable (other than redeemable only for Capital Stock
of such Person which is not itself Disqualified Stock) pursuant to a sinking fund obligation
or otherwise;




     (2) is convertible or exchangeable at the option of the holder for Indebtedness or
Disqualified Stock; or




     (3) is mandatorily redeemable or must be purchased upon the occurrence of certain
events or otherwise, in whole or in part;


in each case on or prior to the date that is 91 days after the Stated Maturity of the Notes;
provided, however, that any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to purchase or redeem
such Capital Stock upon the occurrence of an “asset sale” or “change of control” shall not
constitute Disqualified Stock if:





     (A) the “asset sale” or “change of control” provisions applicable to such
Capital Stock are not more favorable to the holders of such Capital Stock than the
terms applicable to the Notes in Sections 4.06 and 4.10; and




     (B) any such requirement only becomes operative after compliance with such
terms applicable to the Notes, including the purchase of any Notes tendered pursuant
thereto.



     The amount of any Disqualified Stock that does not have a fixed redemption, repayment or
repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if
such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of
such Disqualified Stock is to be determined pursuant to this Indenture; provided, however, that if
such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of
such determination, the redemption, repayment or repurchase price will be the book value of such
Disqualified Stock as reflected in the most recent financial statements of such Person.



     “Equity Offering” means a primary public or private offering of Capital Stock of Sirius XM
Radio Inc. pursuant to an effective registration statement under the Securities Act, an offering
memorandum, private placement memorandum or otherwise, other than offerings with respect to the
Common Stock, or options, warrants or rights of Sirius XM Radio Inc., registered on Form S-4 or
S-8, the Net Cash Proceeds of which are contributed to the Company’s equity capital within 90 days
after receipt by Sirius XM Radio Inc. of such cash proceeds.



     “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.



     “FCC License Subsidiary” means XM Radio Inc., a Delaware corporation and a Wholly Owned
Subsidiary, and any other Restricted Subsidiary formed for the sole purpose of holding FCC licenses
and all of the issued and outstanding Capital Stock of which is owned by the Company and the
Subsidiary Guarantors.



9









 





     “GAAP” means generally accepted accounting principles in the United States of America as in
effect as of the Issue Date, including those set forth in:




     (1) the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants;




     (2) statements and pronouncements of the Financial Accounting Standards Board;




     (3) such other statements by such other entity as approved by a significant segment of
the accounting profession; and




     (4) the rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in
staff accounting bulletins and similar written statements from the accounting staff of the
SEC.



     “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any Person and any obligation, direct or indirect,
contingent or otherwise, of such Person:




     (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay
or to maintain financial statement conditions or otherwise); or




     (2) entered into for the purpose of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part);


provided, however, that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding
meaning.




     “Guarantor” means each Subsidiary Guarantor.



     “Hedging Obligations” of any Person means the obligations of such Person under:




     (1) currency exchange or interest rate swap agreements, currency exchange or interest
rate cap agreements or currency exchange or interest rate collar agreements; or




     (2) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange or interest rate prices.



     “Holder” or “Noteholder” means the Person in whose name a Note is registered on the
Registrar’s books.



10









 





     “Incur” means issue, assume, Guarantee, incur or otherwise become liable for; provided,
however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence” when
used as a noun shall have a correlative meaning. Solely for purposes of determining compliance with
Section 4.03:




     (1) amortization of debt discount or the accretion of principal with respect to a
non-interest bearing or other discount security;




     (2) the payment of regularly scheduled interest in the form of additional Indebtedness
of the same instrument or the payment of regularly scheduled dividends on Capital Stock in
the form of additional Capital Stock of the same class and with the same terms; and




     (3) the obligation to pay a premium in respect of Indebtedness arising in connection
with the issuance of a notice of redemption or making of a mandatory offer to purchase such
Indebtedness will not be deemed to be the Incurrence of Indebtedness.



     “Indebtedness” means, with respect to any Person on any date of determination (without
duplication):




     (1) the principal in respect of (A) indebtedness of such Person for money borrowed and
(B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including, in each case, any premium
on such indebtedness to the extent such premium has become due and payable;




     (2) all Capital Lease Obligations of such Person and all Attributable Debt in respect
of Sale/Leaseback Transactions entered into by such Person;




     (3) all obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding any accounts payable or other liability
to trade creditors arising in the ordinary course of business), in each case only if and to
the extent due more than 12 months after the delivery of property;




     (4) the principal component of all obligations of such Person for the reimbursement of
any obligor on any letter of credit or bankers’ acceptance, other than obligations with
respect to letters of credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of business of such
Person;




     (5) the principal component of the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of any Disqualified Stock of such
Person or, with respect to any Preferred Stock of any Restricted Subsidiary of such Person,
the principal amount attributable to such Preferred Stock to be determined in accordance
with this Indenture (but excluding, in each case, any accrued dividends);



11









 






     (6) all obligations of the type referred to in clauses (1) through (5) of other Persons
and all dividends of other Persons for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;




     (7) all obligations of the type referred to in clauses (1) through (6) of other Persons
secured by any Lien on any property or asset of such Person (whether or not such obligation
is assumed by such Person), the amount of such obligation being deemed to be the lesser of
the fair market value of such property or assets and the amount of the obligation so
secured; and




     (8) to the extent not otherwise included in this definition, Hedging Obligations of
such Person.



     Notwithstanding the foregoing, in connection with the purchase by the Company or any
Restricted Subsidiary of any business, the term “Indebtedness” will exclude post-closing payment
adjustments to which the seller may become entitled to the extent such payment is determined by a
final closing balance sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such payment is not
determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is
paid within 30 days thereafter. Furthermore, in no event shall the Company’s or any Restricted
Subsidiary’s obligations in respect of ordinary course trade payables pursuant to any programming,
content acquisition, automotive, retail distribution, satellite or chip set acquisition
arrangements, in each case, consistent with past practice, be considered Indebtedness.



     The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all obligations as described above; provided, however, that in the case of Indebtedness
sold at a discount, the amount of such Indebtedness at any time will be the accreted value thereof
at such time.



     “Indenture” means this Indenture, as amended or supplemented from time to time.



     “Independent Qualified Party” means an investment banking firm, accounting firm, appraisal
firm, economic consulting firm or management consulting firm, each of national standing; provided,
however, that such firm is not an Affiliate of the Company.



     “interest” means any interest payable on the Notes including Reporting Additional Interest.



     “Interest Rate Agreement” means with respect to any Person, any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement as to which such Person is party or a
beneficiary.



     “Investment” in any Person means any direct or indirect advance, loan (other than advances to
customers in the ordinary course of business that are recorded as accounts receivable



12









 




on the balance sheet of the lender) or other extensions of credit (including by way of
Guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account or use of others),
or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person. If the Company or any Restricted Subsidiary issues, sells or otherwise disposes of
any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect
thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Company or any
Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed to be a
new Investment at such time. Except as otherwise provided for herein, the amount of an Investment
shall be its fair market value at the time the Investment is made and without giving effect to
subsequent changes in value; provided that none of the following will be deemed to be an
Investment:





     (1) Hedging Obligations entered into in the ordinary course of business and in
compliance with this Indenture;




     (2) endorsements of negotiable instruments and documents in the ordinary course of
business;




     (3) an acquisition of assets by the Company or a Subsidiary for consideration to the
extent such consideration consists of Capital Stock of the Company; and




     (4) advances, deposits, escrows or similar arrangements entered into in the ordinary
course of business in respect of retail or automotive distribution arrangements, satellite,
chip set, programming or content acquisitions or extensions.



     For purposes of the definition of “Unrestricted Subsidiary”, the definition of “Restricted
Payment” and Section 4.04, “Investment” shall include:




     (1) the portion (proportionate to the Company’s equity interest in such Subsidiary) of
the fair market value of the net assets of any Subsidiary of the Company at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount
(if positive) equal to (A) the Company’s “Investment” in such Subsidiary at the time of such
redesignation less (B) the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of
such redesignation; and




     (2) any property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as determined in good faith
by the Board of Directors.



     “Issue Date” means October 27, 2010.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions or trust
institutions are not required to be open in the State of New York.



13









 





     “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any conditional sale or other title retention agreement or lease in the nature thereof).



     “Material Subsidiary” means, on any date of determination, (a) each FCC License Subsidiary,
(b) each other domestic Restricted Subsidiary, other than Restricted Subsidiaries that do not
represent more than 5% for any such Subsidiary individually, or more than 10% in the aggregate for
all such Subsidiaries, of either (i) Consolidated Total Assets or (ii) consolidated total revenues
of the Company as of the end of, or for the period of, four fiscal quarters most recently ended for
which financial statements are available and (c) any domestic Restricted Subsidiary (including any
FCC License Subsidiary but only to the extent permitted under applicable law) that has Guaranteed
any Indebtedness or other obligation of the Company or any Restricted Subsidiary in excess of $2.0
million.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency
business.



     “Net Available Cash” from any Asset Disposition means cash payments received therefrom
(including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and proceeds from the sale or other disposition of any
securities received as consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other non-cash form), net of:




     (1) all legal, title and recording tax expenses, commissions and other fees and
expenses Incurred, and all Federal, state, provincial, foreign and local taxes required to
be accrued as a liability under GAAP, as a consequence of such Asset Disposition;




     (2) all payments made on any Indebtedness which is secured by any assets subject to
such Asset Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms, or in order
to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out
of the proceeds from such Asset Disposition;




     (3) all distributions and other payments required to be made to minority interest
holders in Restricted Subsidiaries as a result of such Asset Disposition;




     (4) the deduction of appropriate amounts provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or other assets
disposed in such Asset Disposition and retained by the Company or any Restricted Subsidiary
after such Asset Disposition; and




     (5) any portion of the purchase price from an Asset Disposition placed in escrow,
whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities
in respect of such Asset Disposition or otherwise in connection with that Asset Disposition;
provided, however, that upon the termination of that escrow, Net



14









 







Available Cash will be increased by any portion of funds in the escrow that are
released to the Company or any Restricted Subsidiary.



     “Net Cash Proceeds” with respect to any issuance or sale of Capital Stock or Indebtedness,
means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees,
underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and
other fees actually Incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.



     “Note Guarantees” means the Guarantees of the Subsidiary Guarantors pursuant to the terms of
this Indenture, and “Note Guarantee” means any of them.



     “Obligations” means, with respect to any Indebtedness, all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements and other amounts payable pursuant to
the documentation governing such Indebtedness.



     “Offering Memorandum” means the offering memorandum of the Company dated October 13, 2010
pursuant to which the Notes were offered to the Holders.



     “Officer” means the Chief Executive Officer, the President, any Vice President, the Treasurer
or the Secretary of the Company.



     “Officers’ Certificate” means a certificate signed by two Officers.



     “Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.



     “Permitted Holder” means Affiliates of Sirius XM Radio Inc., including for this purpose,
without limitation, Liberty Media Corporation, Liberty Radio, LLC or any of their respective
Affiliates.



     “Permitted Investment” means an Investment by the Company or any Restricted Subsidiary in:




     (1) the Company, a Restricted Subsidiary or a Person that will, upon the making of such
Investment, become a Restricted Subsidiary; provided, however, that the primary business of
such Restricted Subsidiary is a Related Business;




     (2) another Person if, as a result of such Investment, such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all its assets to,
the Company or a Restricted Subsidiary; provided, however, that such Person’s primary
business is a Related Business;




     (3) cash and Temporary Cash Investments;




     (4) receivables owing to the Company or any Restricted Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such



15









 







concessionary trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances;




     (5) payroll, travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses for accounting purposes and that are
made in the ordinary course of business;




     (6) loans or advances to employees made in the ordinary course of business not to
exceed $2.0 million at any time outstanding;




     (7) stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of a debtor;




     (8) any Person to the extent such Investment represents the non-cash portion of the
consideration received for (A) an Asset Disposition as permitted pursuant to Section 4.06 or
(B) a disposition of assets not constituting an Asset Disposition;




     (9) any Person where such Investment was acquired by the Company or any of its
Restricted Subsidiaries (A) in exchange for any other Investment or accounts receivable held
by the Company or any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of a foreclosure by the Company or any
of its Restricted Subsidiaries with respect to any secured Investment or other transfer of
title with respect to any secured Investment in default;




     (10) any Person to the extent such Investments consist of prepaid expenses, negotiable
instruments held for collection and lease, utility and workers’ compensation, performance
and other similar deposits made in the ordinary course of business by the Company or any
Restricted Subsidiary;




     (11) any Person to the extent such Investments consist of Hedging Obligations otherwise
permitted under Section 4.03;




     (12) any Person to the extent such Investment exists on the Issue Date, and any
extension, modification or renewal of any such Investments existing on the Issue Date, but
only to the extent not involving additional advances, contributions or other Investments of
cash or other assets or other increases thereof (other than as a result of the accrual or
accretion of interest or original issue discount or the issuance of pay-in-kind securities,
in each case, pursuant to the terms of such Investment as in effect on the Issue Date);




     (13) Persons to the extent such Investments, when taken together with all other
Investments made pursuant to this clause (13) that are at the time outstanding, do not
exceed the greater of (x) $350 million and (y) 15% of Tangible Assets (as determined based
on the consolidated balance sheet of the Company as of the end of the most recent fiscal
quarter for which internal financial statements are available prior to such



16









 







Investment), in each case at the time of such Investment (with the fair market value of
each Investment being measured at the time made and without giving effect to subsequent
changes in value);




     (14) any Investment that becomes an Investment of the Company as a result of a
Company-Sirius Merger;




     (15) any Asset Swap made in accordance with Section 4.06; and




     (16) any merger, consolidation, joint venture or other combination between Canadian
Satellite Radio Holdings Inc. and SIRIUS Canada Inc. that would otherwise constitute an
Investment of the Company.



     “Permitted Liens” means, with respect to any Person:




     (1) pledges or deposits by such Person under worker’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure surety or appeal bonds to which
such Person is a party, or deposits as security for contested taxes or import duties or for
the payment of rent, in each case Incurred in the ordinary course of business;




     (2) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in
each case for sums not yet due or being contested in good faith by appropriate proceedings
or other Liens arising out of judgments or awards against such Person with respect to which
such Person shall then be proceeding with an appeal or other proceedings for review and
Liens arising solely by virtue of any statutory or common law provision relating to banker’s
Liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided, however, that (A) such
deposit account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Company in excess of those set forth by regulations
promulgated by the Federal Reserve Board and (B) such deposit account is not intended by the
Company or any Restricted Subsidiary to provide collateral to the depository institution;




     (3) Liens for taxes, assessments or other governmental charges not yet subject to
penalties for non-payment or which are being contested in good faith by appropriate
proceedings;




     (4) Liens in favor of issuers of surety bonds or letters of credit issued pursuant to
the request of and for the account of such Person in the ordinary course of its business;
provided, however, that such letters of credit do not constitute Indebtedness;




     (5) survey exceptions, encumbrances, easements or reservations of, or rights of others
for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions as to the use of real property or



17









 







Liens incidental to the conduct of the business of such Person or to the ownership of
its properties which were not Incurred in connection with Indebtedness and which do not in
the aggregate materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person;




     (6) Liens securing Indebtedness Incurred to finance the construction, purchase or lease
of, or repairs, improvements or additions to, property, plant or equipment of such Person;
provided, however, that the Lien may not extend to any other property owned by such Person
or any of its Restricted Subsidiaries at the time the Lien is Incurred (other than assets
and property affixed or appurtenant thereto), and the Indebtedness (other than any interest
thereon) secured by the Lien may not be Incurred more than 180 days after the later of the
acquisition, completion of construction, repair, improvement, addition or commencement of
full operation of the property subject to the Lien;




     (7) Liens on property of the Company or its Subsidiaries existing on the Issue Date;




     (8) Liens (other than Liens incurred as a result of a Company-Sirius Merger) on
property or shares of Capital Stock of another Person at the time such other Person becomes
a Restricted Subsidiary of such Person; provided, however, that the Liens may not extend to
any other property owned by such Person or any of its Restricted Subsidiaries (other than
assets and property affixed or appurtenant thereto);




     (9) Liens (other than Liens incurred as a result of a Company-Sirius Merger) on
property at the time such Person or any of its Restricted Subsidiaries acquires the
property, including any acquisition by means of a merger or consolidation with or into such
Person or a Subsidiary of such Person; provided, however, that the Liens may not extend to
any other property owned by such Person or any of its Restricted Subsidiaries (other than
assets and property affixed or appurtenant thereto);




     (10) Liens securing Indebtedness or other obligations of a Subsidiary of such Person
owing to such Person or a Wholly Owned Subsidiary of such Person;




     (11) Liens securing Hedging Obligations so long as such Hedging Obligations are
permitted to be Incurred under this Indenture;




     (12) [Intentionally omitted];




     (13) leases, licenses, subleases and sublicenses of assets (including, without
limitation, real property and intellectual property rights) which do not materially
interfere with the ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries;




     (14) Liens arising from Uniform Commercial Code financing statement filing regarding
operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary
course of business;



18









 






     (15) Liens in connection with advances, deposits, escrows and similar arrangements in
the ordinary course of business in respect of retail or automotive distribution
arrangements, satellite, chip set, programming and content acquisitions and extensions;




     (16) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in
part, of any Indebtedness secured by any Lien referred to in clauses (6), (7), (8), (9) and
(20); provided, however, that in the case of Liens to secure any Refinancing (or successive
Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien referred to in
clauses (6), (7), (8), (9) and (20):




     (A) such new Lien shall be limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the original
Lien arose, could secure the original Lien (plus improvements and accessions to,
such property or proceeds or distributions thereof); and




     (B) the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of (i) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clause (6), (7), (8), (9) or
(20) at the time the original Lien became a Permitted Lien and (ii) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement;




     (17) any interest or title of a lessor under any Capital Lease Obligation;




     (18) any Lien (other than Liens securing Indebtedness) that becomes a Lien of the
Company or any of its Restricted Subsidiaries as a result of a Company-Sirius Merger;
provided, however, that (A) the Liens may not extend to any other property owned by such
Person or any of its Restricted Subsidiaries (other than assets and property affixed or
appurtenant thereto), (B) the Liens must have existed prior to such transaction and shall
not be Incurred as a result of such transaction and (C) the priority of such Lien may not be
improved as a result of such transaction;




     (19) Liens relating to Replacement Satellite Vendor Indebtedness, including Refinancing
Indebtedness in respect thereof covering the assets acquired, constructed or improved with
such Indebtedness;




     (20) Liens securing Indebtedness that becomes a Lien of the Company or any Restricted
Subsidiary as a result of a Company-Sirius Merger;




     (21) Liens Incurred in the ordinary course of business of the Company or any Restricted
Subsidiary with respect to Obligations that do not exceed $20.0 million at any one time
outstanding;




     (22) Liens incurred in connection with a Sale/Leaseback Transaction on assets or
properties held by XM 1500 Eckington LLC or XM Investment LLC on the Issue Date;



19









 






     (23) Liens to secure Purchase Money Indebtedness permitted under the provisions
described under Section 4.03(b)(15), covering only the assets acquired with or financed by
such Indebtedness; and




     (24) other Liens to secure Indebtedness, at any time, so that the aggregate amount of
secured Indebtedness of the Company and its Restricted Subsidiaries would not exceed the
greater of (a)(i) $502 million, prior to the Company-Sirius Merger Date, or (ii) $1,028
million, on or after the Company-Sirius Merger Date, and (b) the amount of secured
Indebtedness that may be Incurred at such time such that the Secured Leverage Ratio would
not exceed 3.5 to 1, in each case, after giving effect to the Incurrence of such secured
Indebtedness and to the application of the net proceeds therefrom on a pro forma basis.


For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on
such Indebtedness.




     “Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.



     “Preferred Stock”, as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of such Person.



     “principal” of a Note means the principal of the Note plus the premium, if any, payable on the
Note which is due or overdue or is to become due at the relevant time.



     “Purchase Money Indebtedness” means Indebtedness:




     (1) consisting of the deferred purchase price of an asset, conditional sale
obligations, obligations under any title retention agreement and other purchase money
obligations, in each case where the maturity of such Indebtedness does not exceed the
anticipated useful life of the asset being financed, and




     (2) Incurred to finance the acquisition by the Company or a Restricted Subsidiary of
such asset, including additions and improvements;


provided, however, that such Indebtedness is Incurred within 180 days after the acquisition by the
Company or such Restricted Subsidiary of such asset.




     “Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, purchase, redeem, defease or retire, or to issue other Indebtedness in exchange or
replacement for, such Indebtedness. “Refinanced” and “Refinancing” shall have correlative meanings.



     “Refinancing Indebtedness” means Indebtedness that Refinances any Indebtedness of the Company
or any Restricted Subsidiary existing on the Issue Date or Incurred in compliance with



20









 




this Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided,
however, that:





     (1) such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced or, if such Refinancing Indebtedness is a
Subordinated Obligation, no earlier than 91 days after the Stated Maturity of the Notes;




     (2) such Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being Refinanced or, if such Refinancing Indebtedness is a Subordinated
Obligation, equal to or greater than the then remaining Average Life of the Notes;




     (3) such Refinancing Indebtedness has an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) that is equal to or less than the
aggregate principal amount (or if Incurred with original issue discount, the aggregate
accreted value) then outstanding (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; and




     (4) if the Indebtedness being Refinanced is subordinated in right of payment to the
Notes, such Refinancing Indebtedness (a) is subordinated in right of payment to the Notes at
least to the same extent as the Indebtedness being Refinanced, (b) has a Stated Maturity
that is at least 91 days after the later of (x) the Stated Maturity of the Notes and (y) the
Stated Maturity of the Indebtedness being Refinanced and (c) has an Average Life at the time
such Refinancing Indebtedness is Incurred that is greater than (x) the Average Life of the
Notes and (y) the Average Life of the Indebtedness being Refinanced;


provided further, however, that Refinancing Indebtedness shall not include (A) Indebtedness of a
Subsidiary that Refinances Indebtedness of the Company or (B) Indebtedness of the Company or a
Restricted Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary.




     “Related Business” means any business in which the Company or any of the Restricted
Subsidiaries was engaged on the Issue Date and any business related, ancillary or complementary to
such business or that constitutes a reasonable extension or expansion thereof, including in
connection with the Company’s existing and future technology, trademarks and patents or any
business the assets of which, in the good faith determination of the Board of Directors, are useful
or may be used in any such business.



     “Related Business Assets” means assets used or useful in a Related Business.



     “Replacement Satellite Vendor Indebtedness” means Indebtedness of the Company provided by a
satellite or satellite launch vendor, insurer or insurance agent or Affiliate thereof for (a) the
construction, launch and insurance of all or part of one or more replacement satellites or
satellite launches for such satellites, where “replacement satellite” means a satellite that is
used for continuation of the Company’s satellite service as a replacement for, or supplement to, a
satellite that is retired or relocated (due to a deterioration in operating useful life) within the
existing service area or reasonably determined by the Company to no longer meet the



21









 




requirements for such service, or (b) the replacement of a spare satellite that has been
launched or that is no longer capable of being launched or suitable for launch.




     “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.



     “Restricted Payment” with respect to any Person means:




     (1) the declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any merger or
consolidation involving such Person) or similar payment to the direct or indirect holders of
its Capital Stock (other than (A) dividends or distributions payable solely in its Capital
Stock (other than Disqualified Stock), (B) dividends or distributions payable solely to the
Company or a Restricted Subsidiary and (C) pro rata dividends or other distributions made by
a Subsidiary that is not a Wholly Owned Subsidiary to minority stockholders (or owners of an
equivalent interest in the case of a Subsidiary that is an entity other than a
corporation));




     (2) the purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of any Capital Stock of the Company or any direct or indirect parent of the
Company held by any Person (other than by a Restricted Subsidiary) or of any Capital Stock
of a Restricted Subsidiary held by any Affiliate of the Company (other than by a Restricted
Subsidiary), including in connection with any merger or consolidation and including the
exercise of any option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock);




     (3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund
payment of any Subordinated Obligations of the Company (other than, in the case of this
clause (3), from the Company or a Restricted Subsidiary); or




     (4) the making of any Investment (other than a Permitted Investment) in any Person.



     “Restricted Subsidiary” means any Subsidiary of the Company that is not an Unrestricted
Subsidiary.



     “Sale/Leaseback Transaction” means an arrangement relating to property owned by the Company or
a Restricted Subsidiary on the Issue Date or thereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a Person and
the Company or a Restricted Subsidiary leases it from such Person.



     “SEC” means the U.S. Securities and Exchange Commission.




22











 





     “Secured Indebtedness” means any Indebtedness of the Company or a Restricted Subsidiary
secured by a Lien.



     “Secured Leverage Ratio” as of any date of determination means the ratio of (x) the aggregate
amount of Secured Indebtedness of the Company and its Restricted Subsidiaries as of such date of
determination to (y) Consolidated Operating Cash Flow for the most recent four consecutive fiscal
quarters ending prior to such date of determination for which financial information is available
(the “Reference Period”); provided, however, that:




     (1) if the transaction giving rise to the need to calculate the Secured Leverage Ratio
is an Incurrence of Indebtedness, the amount of such Indebtedness shall be calculated after
giving effect on a pro forma basis to such Indebtedness;




     (2) if the Company or any Restricted Subsidiary has repaid, repurchased, defeased or
otherwise discharged any Indebtedness that was outstanding as of the end of such fiscal
quarter or if any Indebtedness is to be repaid, repurchased, defeased or otherwise
discharged on the date of the transaction giving rise to the need to calculate the Secured
Leverage Ratio (other than, in each case, Indebtedness Incurred under any revolving credit
agreement), the aggregate amount of Indebtedness shall be calculated on a pro forma basis
and Consolidated Operating Cash Flow shall be calculated as if the Company or such
Restricted Subsidiary had not earned the interest income, if any, actually earned during the
Reference Period in respect of cash or Temporary Cash Investments used to repay, repurchase,
defease or otherwise discharge such Indebtedness;




     (3) if since the beginning of the Reference Period the Company or any Restricted
Subsidiary shall have made any Asset Disposition, the Consolidated Operating Cash Flow for
the Reference Period shall be reduced by an amount equal to the Consolidated Operating Cash
Flow (if positive) directly attributable to the assets which are the subject of such Asset
Disposition for the Reference Period or increased by an amount equal to the Consolidated
Operating Cash Flow (if negative) directly attributable thereto for the Reference Period;




     (4) if since the beginning of the Reference Period the Company or any Restricted
Subsidiary (by merger or otherwise) shall have made an Investment in any Restricted
Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets
which constitutes all or substantially all of an operating unit of a business, Consolidated
Operating Cash Flow for the Reference Period shall be calculated after giving pro forma
effect thereto (including the Incurrence of any Indebtedness) as if such Investment or
acquisition had occurred on the first day of the Reference Period; and




     (5) if since the beginning of the Reference Period any Person (that subsequently became
a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such Reference Period) shall have made any Asset Disposition, any
Investment or acquisition of assets that would have required an adjustment pursuant to
clause (3) or (4) above if made by the Company or a Restricted Subsidiary during the
Reference Period, Consolidated Operating Cash Flow for the Reference Period shall be
calculated after giving pro forma effect thereto as if such Asset



23









 







Disposition, Investment or acquisition had occurred on the first day of the Reference
Period.



     For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred in connection therewith, the pro forma
calculations relating thereto shall be determined in accordance with GAAP in good faith by a
responsible financial or accounting Officer of the Company. If any Indebtedness bears a floating
rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness
if such Interest Rate Agreement has a remaining term in excess of 12 months). If any Indebtedness
is Incurred under a revolving credit facility and is being given pro forma effect, the interest on
such Indebtedness shall be calculated based on the average daily balance of such Indebtedness for
the four fiscal quarters subject to the pro forma calculation to the extent such Indebtedness was
Incurred solely for working capital purposes.



     “Securities Act” means the U.S. Securities Act of 1933, as amended.



     “Senior Indebtedness” means with respect to any Person:




     (1) Indebtedness of such Person, whether outstanding on the Issue Date or thereafter
Incurred; and




     (2) all other Obligations of such Person (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to such Person whether
or not post-filing interest is allowed in such proceeding) in respect of Indebtedness
described in clause (1) above



     unless, in the case of clauses (1) and (2), in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such Indebtedness or other
obligations are subordinate in right of payment to the Notes; provided, however, that Senior
Indebtedness shall not include:




	 	(a)	 	any obligation of such Person to the Company or any Subsidiary;
	 
	 	(b)	 	any liability for Federal, state, local or other taxes owed or owing by such Person;
	 
	 	(c)	 	any accounts payable or other liability to trade creditors arising in the ordinary course
of business;
	 
	 	(d)	 	any Indebtedness or other Obligation of such Person which is subordinate or junior in any
respect to any other Indebtedness or other Obligation of such Person;
	 
	 	(e)	 	that portion of any Indebtedness which at the time of Incurrence is Incurred in violation
of this Indenture; or




24









 






	 	(f)	 	any Capital Stock.





     “Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC.



     “Standard & Poor’s” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.,
and any successor to its rating agency business.



     “Stated Maturity” means, with respect to any security, the date specified in such security as
the fixed date on which the final payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).



     “Subordinated Obligation” means, with respect to a Person, any Indebtedness of such Person
(whether outstanding on the Issue Date or thereafter Incurred) which is subordinate or junior in
right of payment to the Notes pursuant to a written agreement to that effect.



     “Subscriber” means (a) prior to a Company-Sirius Merger, a subscriber in good standing to the
XM Radio service that has paid subscription fees for at least one month of such service and whose
subscription payments are not delinquent and (b) thereafter, a subscriber in good standing to the
XM or Sirius Radio service that has paid subscription fees for at least one month of such service
and whose subscription payments are not delinquent.



     “Subsidiary” means, with respect to any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares of Voting Stock is
at the time owned or controlled, directly or indirectly, by:




     (1) such Person;




     (2) such Person and one or more Subsidiaries of such Person; or




     (3) one or more Subsidiaries of such Person.



     “Subsidiary Guarantee” means, individually, any Guarantee of payment of the Notes by a
Subsidiary Guarantor pursuant to the terms of this Indenture and any supplemental indenture
thereto, and, collectively, all such Guarantees. Each such Subsidiary Guarantee will be in the form
prescribed by this Indenture.



     “Subsidiary Guarantor” means the Restricted Subsidiaries of the Company who are party to this
Indenture on the Issue Date and any other Restricted Subsidiary of the Company that later becomes a
Subsidiary Guarantor in accordance with this Indenture.



     “Tangible Assets” means the Consolidated Total Assets, less goodwill and intangibles, of the
Company and its consolidated Restricted Subsidiaries, as shown on the most recent balance sheet of
the Company, determined on a consolidated basis in accordance with GAAP; provided,



25









 




that, irrespective of GAAP, Tangible Assets shall include FCC licenses held by the Company or
its consolidated Restricted Subsidiaries.




     “Temporary Cash Investments” means any of the following:




     (1) any investment in direct obligations of the United States of America or any agency
thereof or obligations guaranteed by the United States of America or any agency thereof;




     (2) investments in demand and time deposit accounts, certificates of deposit and money
market deposits maturing within 365 days of the date of acquisition thereof issued by a bank
or trust company that is organized under the laws of the United States of America, any State
thereof or any foreign country recognized by the United States of America, and which bank or
trust company has capital, surplus and undivided profits aggregating in excess of
$50,000,000 (or the foreign currency equivalent thereof) and has outstanding debt that is
rated “A” (or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the Securities Act)
or any money-market fund sponsored by a registered broker-dealer or mutual fund distributor;




     (3) repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (1) above entered into with a bank meeting the
qualifications described in clause (2) above;




     (4) investments in commercial paper, maturing not more than 365 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of which any
investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher)
according to Standard & Poor’s;




     (5) auction rate preferred stock issued by a corporation and certificates issued by a
corporation or municipality or government entity (other than an Affiliate of the Company)
organized and in existence under the laws of the United States of America or any foreign
country recognized by the United States with a rating at the time as of which any investment
therein is made of “A” (or higher) according to Moody’s or Standard & Poor’s;




     (6) investments in securities with maturities of twelve months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority thereof, and rated at
least “A” by Moody’s or “A” by Standard & Poor’s; and




     (7) investments in money market funds that, in the aggregate, have at least
$1,000,000,000 in assets.



     “Trustee” means U.S. Bank National Association until a successor replaces it and, thereafter,
means the successor.



26









 





     “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.



     “Unrestricted Subsidiary” means:




     (1) any Subsidiary of the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors in the manner provided below; and




     (2) any Subsidiary of an Unrestricted Subsidiary.



     The Board of Directors may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any
of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property
of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided, however, that either (A) the Subsidiary to be so designated has
total assets of $1,000 or less or (B) if such Subsidiary has assets greater than $1,000, such
designation would be permitted under Section 4.04.



     The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such designation (A) the
Company could Incur $1.00 of additional Indebtedness under Section 4.03(a) and (B) no Default shall
have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced
to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers’ Certificate certifying that such
designation complied with the foregoing provisions.



     “U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable at the issuer’s option.



     “Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding
and normally entitled (without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof.



     “Wholly Owned Subsidiary” means a Restricted Subsidiary all the Capital Stock of which (other
than directors’ qualifying shares) is owned by the Company or one or more other Wholly Owned
Subsidiaries.



          SECTION 1.02. Other Definitions.








27









 








	 	 	 	 	 
	Term	 	Defined In Section
	“Affiliate Transaction”

	 	 	4.07	(a)
	 
	 	 	 	 
	“Appendix”

	 	 	2.01	 
	 
	 	 	 	 
	“Bankruptcy Code”

	 	 	6.01	 
	 
	 	 	 	 
	“Change of Control Offer”

	 	 	4.10	(b)
	 
	 	 	 	 
	“Comparable Treasury Issue”

	 	 	3.06	(b)
	 
	 	 	 	 
	“Comparable Treasury Price”

	 	 	3.06	(b)
	 
	 	 	 	 
	“covenant defeasance option”

	 	 	8.01	(b)
	 
	 	 	 	 
	“Custodian”

	 	 	6.01	 
	 
	 	 	 	 
	“DTC”

	 	 	2.06	(c)
	 
	 	 	 	 
	“Event of Default”

	 	 	6.01	 
	 
	 	 	 	 
	“Indemnified Party”

	 	 	7.07	 
	 
	 	 	 	 
	“Independent Investment Banker”

	 	 	3.06	(b)
	 
	 	 	 	 
	“Initial Lien”

	 	 	4.11	 
	 
	 	 	 	 
	“Initial Purchasers”

	 	Appendix

	 
	 	 	 	 
	“legal defeasance option”

	 	 	8.01	(b)
	 
	 	 	 	 
	“Make Whole Redemption Price”

	 	 	3.06	(b)
	 
	 	 	 	 
	“Notice of Default”

	 	 	6.01	 
	 
	 	 	 	 
	“Offer”

	 	 	4.06	(b)
	 
	 	 	 	 
	“Offer Amount”

	 	 	4.06	(c)(1)
	 
	 	 	 	 
	“Offer Period”

	 	 	4.06	(c)(1)
	 
	 	 	 	 
	“Paying Agent”

	 	 	2.03	(a)
	 
	 	 	 	 
	“Primary Treasury Dealer”

	 	 	3.06	(b)
	 
	 	 	 	 
	“Protected Purchaser”

	 	 	2.07	 
	 
	 	 	 	 
	“Purchase Date”

	 	 	4.06	(c)
	 
	 	 	 	 
	“Reference Treasury Dealer”

	 	 	3.06	(b)
	 
	 	 	 	 
	“Reference Treasury Dealer Quotations”

	 	 	3.06	(b)






28









 






	 	 	 	 	 
	Term	 	Defined In Section
	“Registrar”

	 	 	2.03	(a)
	 
	 	 	 	 
	“Reporting Additional Interest”

	 	 	6.13	 
	 
	 	 	 	 
	“Successor Company”

	 	 	5.01	(1)
	 
	 	 	 	 
	“Successor Guarantor”

	 	 	10.04	(b)(1)
	 
	 	 	 	 
	“Tax Payments”

	 	 	4.04	(b)(11)(A)
	 
	 	 	 	 
	“Treasury Rate”

	 	 	3.06	(b)






                    SECTION 1.03. Rules of Construction. Unless the context otherwise requires:




     (1) a term has the meaning assigned to it;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) “or” is not exclusive;




     (4) “including” means including without limitation;




     (5) words in the singular include the plural and words in the plural include the
singular;




     (6) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness;




     (7) secured Indebtedness shall not be deemed to be subordinate or junior to any other
secured Indebtedness merely because it has a junior priority with respect to the same
collateral;




     (8) the principal amount of any noninterest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP;




     (9) the principal amount of any Preferred Stock shall be (A) the liquidation preference
of such Preferred Stock or (B) the maximum mandatory redemption or mandatory repurchase
price (not including any redemption or repurchase premium) with respect to such Preferred
Stock, whichever is greater;




     (10) all references to the date the Notes were originally issued shall refer to the
Issue Date; and




     (11) all use of the term “days” shall refer to calendar days unless otherwise
specified.



29









 





ARTICLE 2




The Notes



          SECTION 2.01. Form and Dating. Provisions relating to the Notes are set forth in the
Rule 144A/Regulation S/IAI Appendix attached hereto (the “Appendix”) which is hereby incorporated
in, and expressly made part of, this Indenture. The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit 1 to the Appendix which is hereby
incorporated in, and expressly made a part of, this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in the Appendix are part of the terms of this Indenture.




          SECTION 2.02. Execution and Authentication. One Officer shall sign the Notes for the
Company by manual or facsimile signature.




          If an Officer whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.




          A Note shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive evidence that the Note
has been authenticated under this Indenture.




          On the Issue Date, the Trustee shall authenticate and deliver $700,000,000 aggregate principal
amount of the Notes and, at any time and from time to time thereafter, the Trustee shall
authenticate and deliver Notes for original issue in an aggregate principal amount specified in
such order, in each case upon a written order of the Company signed by one Officer of the Company.
Such order shall specify the amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and, in the case of an issuance of Additional Notes
pursuant to Section 2.13 after the Issue Date, shall certify that such issuance is in compliance
with Section 4.03.




          The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a
Responsible Officer, a copy of which shall be furnished to the Company. Unless limited by the terms
of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for
service of notices and demands.




          SECTION 2.03. Registrar and Paying Agent.




          (a) The Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or agency where Notes may
be presented for payment (the “Paying Agent”). The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company may have one or more co-




30









 




registrars and one or more additional paying agents. The term “Registrar” includes any
co-registrars. The term “Paying Agent” includes any additional paying agent.




          (b) The Company shall enter into an appropriate agency agreement with any Registrar, Paying
Agent or co-registrar not a party to this Indenture. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.07. The Company or any Wholly Owned Subsidiary incorporated or organized within The
United States of America may act as Paying Agent, Registrar, co-registrar or transfer agent.




          (c) The Company may remove any Registrar or Paying Agent upon written notice to such Registrar
or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective
until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may
be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance with Section
2.03(c)(i). The Registrar or Paying Agent may resign at any time upon written notice to the Company
and the Trustee; provided, however, that the Trustee may resign as Paying Agent or Registrar only
if the Trustee also resigns as Trustee in accordance with Section 7.08.




          (d) The Company initially appoints the Trustee as Registrar and Paying Agent in connection
with the Notes.




          SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each due date of the
principal and interest on any Note, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust
for the benefit of Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Notes and shall notify the Trustee of any default by the Company in
making any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.




          SECTION 2.05. Noteholder Lists. The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Registrar, the Company shall furnish, or cause the Registrar
to furnish, to the Trustee, in writing at least five Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of Noteholders.




          SECTION 2.06. Transfer and Exchange. (a) The Notes shall be issued in registered
form and shall be transferable only upon the surrender of a Note for registration of




31









 




transfer. When a Note is presented to the Registrar or a co-registrar with a request to
register a transfer, the Registrar shall register the transfer as requested if the requirements of
this Indenture and Section 8-401(1) of the Uniform Commercial Code are met. When Notes are
presented to the Registrar or a co-registrar with a request to exchange them for an equal principal
amount of Notes of other denominations, the Registrar shall register the transfer or make the
exchange as requested if the same requirements are met. The Company may require payment of a sum
sufficient to pay all taxes, assessments and other governmental charges in connection with any
transfer or exchange pursuant to this Section. The Company shall not be required to make, and the
Registrar need not register, transfers or exchanges of Notes selected for redemption (except, in
the case of Notes to be redeemed in part, the portion thereof not to be redeemed) or of any Notes
for a period of 15 days before a selection of Notes to be redeemed.




          Prior to the due presentation of transfer of any Note the Company, the Trustee, the Paying
Agent and the Registrar may deem and treat the person in whose name a Note is registered as the
absolute owner of such Note for all purposes of receiving payment of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not such security is overdue,
and none of the Company, the Trustee, a Paying Agent or the Registrar shall be affected by notice
to the contrary.




          All securities issues upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the
Notes surrendered upon such transfer or exchange.




          (b) Any Registrar appointed pursuant to Section 2.03 shall provide the Trustee such
information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Notes upon transfer or exchange of Notes.




          (c) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note between or among any member of, or
participant in, The Depository Trust Company (“DTC”) (or any other securities clearing agency that
is registered as such under the Exchange Act and is designated by the Company to act as a
depository for such Notes) or other beneficial owners of interests in any Global Note other than to
require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express requirements thereof.




          SECTION 2.07. Replacement Notes. If a mutilated Note is surrendered to the Registrar
or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder (a) satisfies the Company or
the Trustee within a reasonable time after such Holder has notice of such loss, destruction or
wrongful taking and the Registrar does not register a transfer prior to receiving such
notification, (b) makes such request to the Company or the Trustee prior to the Note being acquired
by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “Protected
Purchaser”) and (c) satisfies any other reasonable requirements




32









 




of the Trustee. If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company,
the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Note is replaced. The Company and the Trustee may charge the Holder for their
expenses in replacing a Note (including, attorneys’ fees and disbursements in replacing such
security). In the event any such mutilated, lost, destroyed or wrongfully taken Note has become or
is about to become due and payable, the Company in its discretion may pay such Note instead of
issuing a new Note in replacement thereof.




          Every replacement Note is an additional obligation of the Company.




          SECTION 2.08. Outstanding Notes. Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. Subject to Section 11.05, a
Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the
Note.




          If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee
and the Company receive proof satisfactory to them that the replaced Note is held by a Protected
Purchaser.




          If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
redemption date or maturity date money sufficient to pay all principal and interest payable on that
date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may
be, then on and after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.




          SECTION 2.09. Temporary Notes. Until Definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Notes and deliver them in exchange for temporary Notes at the
office or agency of the Company.




          SECTION 2.10. Cancellation. The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and dispose of (subject to the record retention requirements of the Exchange Act) all
Notes surrendered for registration of transfer, exchange, payment or cancellation in accordance
with its customary procedures for the disposition of cancelled securities and deliver a certificate
of such disposition to the Company unless the Company directs the Trustee to deliver canceled Notes
to the Company. The Company may not issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation.




          SECTION 2.11. Defaulted Interest. If the Company defaults in a payment of interest
on the Notes, the Company shall pay defaulted interest (plus interest on such defaulted interest to
the extent lawful) in any lawful manner. The Company may pay the defaulted interest




33









 




to the persons who are Noteholders on a subsequent special record date. The Company shall fix
or cause to be fixed any such special record date and payment date to the reasonable satisfaction
of the Trustee and shall promptly mail to each Noteholder a notice that states the special record
date, the payment date and the amount of defaulted interest to be paid.




          SECTION 2.12. CUSIP Numbers, ISINs, etc. The Company in issuing the Notes may use
“CUSIP” numbers, ISINs and “Common Code” numbers (in each case if then generally in use) and, if
so, the Trustee shall use “CUSIP” numbers, ISINs and “Common Code” numbers in notices of redemption
as a convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company shall promptly advise the Trustee in writing of
any change in any “CUSIP” numbers, ISINs or “Common Code” numbers applicable to the Notes.




          SECTION 2.13. Issuance of Additional Notes. After the Issue Date, the Company shall
be entitled, subject to its compliance with Section 4.03, to issue Additional Notes under this
Indenture, which Notes shall have identical terms as the Notes issued on the Issue Date, other than
with respect to the date of issuance and issue price. All the Notes issued under this Indenture
shall be treated as a single class for all purposes of this Indenture including waivers,
amendments, redemptions and offers to purchase.




          With respect to any Additional Notes, the Company shall set forth in a resolution of the Board
of Directors and an Officers’ Certificate, a copy of each which shall be delivered to the Trustee,
the following information:





     (1) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture and the provision of Section 4.03 that the Company is
relying on to issue such Additional Notes; and




     (2) the issue price, the issue date and the CUSIP number of such Additional Notes.



ARTICLE 3




Redemption



          SECTION 3.01. Selection of Notes to Be Redeemed. If fewer than all the Notes are to
be redeemed, the Registrar shall select the Notes to be redeemed using any method that it deems
fair and appropriate. However, if the Notes are solely registered in the name of Cede & Co. and
traded through DTC, then DTC shall select the Notes to be redeemed in accordance with its
practices. The Trustee shall make the selection from outstanding Notes not previously called for
redemption. The Trustee may select for redemption portions of the principal of Notes that have
denominations larger than $2,000. Notes and portions of them the Trustee selects shall be in
principal amounts of $2,000 or whole multiples of $1,000 in excess of $2,000. Provisions of this
Indenture that apply to Notes called for redemption also apply to portions of Notes called for






34









 







redemption. The Trustee shall notify the Company promptly of the Notes or portions of Notes to
be redeemed.




          SECTION 3.02. Notice of Redemption. At least 30 days but not more than 60 days
before a date for redemption of Notes, the Company shall mail or cause to be mailed a notice of
redemption by first-class mail to each Holder of Notes (with a copy of such notice to the Trustee)
to be redeemed at such Holder’s registered address.




          The notice shall identify the Notes to be redeemed and shall state:





     (1) the redemption date;




     (2) the redemption price;




     (3) the name and address of the Paying Agent;




     (4) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price, plus accrued interest;




     (5) if fewer than all the outstanding Notes are to be redeemed, the certificate numbers
and principal amounts of the particular Notes to be redeemed;




     (6) that, unless the Company defaults in making such redemption payment, interest on
Notes (or portion thereof) called for redemption ceases to accrue on and after the
redemption date;




     (7) the “CUSIP” number, ISIN or “Common Code” number, if any, printed on the Notes
being redeemed; and




     (8) that no representation is made as to the correctness or accuracy of the “CUSIP”
number, ISIN, or “Common Code” number, if any, listed in such notice or printed on the
Notes.



          At the Company’s request, delivered at least 15 days before the date such notice is to be
given to the Holder (unless a shorter period shall be acceptable to the Trustee), the Trustee shall
give the notice of redemption in the Company’s name and at the Company’s expense. In such event,
the Company shall provide the Trustee with the information required by this Section.




          SECTION 3.03. Effect of Notice of Redemption. Once notice of redemption is mailed,
Notes called for redemption become due and payable on the redemption date and at the redemption
price stated in the notice. Upon surrender to the Paying Agent, such Notes shall be paid at the
redemption price stated in the notice, plus accrued interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due on the related
interest payment date), and such Notes shall be canceled by the Trustee. Failure to give notice or
any defect in the notice to any Holder shall not affect the validity of the notice to any other
Holder.







35









 








          SECTION 3.04. Deposit of Redemption Price. Prior to the redemption date, the Company
shall deposit with the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and accrued interest
on all Notes to be redeemed on that date other than Notes or portions of Notes called for
redemption which have been delivered by the Company to the Trustee for cancellation.




          SECTION 3.05. Notes Redeemed in Part. Upon surrender of a Note that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for the Holder (at the Company’s
expense) a new Note equal in principal amount to the unredeemed portion of the Note surrendered.




          SECTION 3.06. Optional Redemption.




          (a) At any time prior to November 1, 2013, the Company may on any one or more occasions redeem
up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption
price equal to 107.625% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the redemption date (subject to the rights of Holders on the relevant record date to receive
interest on the relevant interest payment date), with the Net Cash Proceeds from the issuance or
sale of Capital Stock of the Company or a contribution to the Company’s common equity capital made
with the Net Cash Proceeds from a concurrent issuance or sale of Capital Stock by the Company’s
direct or indirect parent; provided that:





     (1) at least 65% of the aggregate principal amount of Notes originally issued under
this Indenture (excluding Notes held by the Company and its Affiliates) remains outstanding
immediately after the occurrence of such redemption; and




     (2) the redemption occurs within 45 days of the date of the closing of such issuance or
sale of Capital Stock.



          (b) At any time prior to November 1, 2014, the Company, at its option, may redeem all, or from
time to time, any part of the Notes on not less than 30 days nor more than 60 days notice as
provided in paragraph 6 of the Notes (except that, notwithstanding the provisions of Section 3.02
of this Indenture, any notice of redemption for the Notes given pursuant to this Section need not
set forth the Redemption Price but only the manner of calculation thereof) at a redemption price
(“Make Whole Redemption Price”) equal to the greater of the following amounts:





     (1) 100% of the principal amount of the Notes then outstanding to be so redeemed;
and




     (2) the present value of the sum of the redemption price of the Notes at November 1,
2014 (such redemption price being set forth in the table in Section 3.06(d)) and the
remaining scheduled payments of interest on the Notes to be redeemed, to, but excluding,
November 1, 2014, discounted to the applicable redemption date in accordance with customary
market practice on a semi-annual basis at a rate equal to the sum of the Treasury Rate plus
0.50%;



36









 




plus, in each of the above cases (b)(1) and (b)(2), accrued and unpaid interest, if any, on the
principal amount being redeemed to the applicable redemption date.




     The Make Whole Redemption Price for the Notes will be calculated by the Independent Investment
Banker assuming a 360-day year consisting of twelve 30-day months. For purposes of calculating the
Make Whole Redemption Price pursuant to the foregoing optional redemption provisions, the following
terms will have the meanings set forth below:



     “Comparable Treasury Issue” means the U.S. Treasury security or securities selected by the
Independent Investment Banker as having an actual or interpolated maturity most nearly equal to the
period from the redemption date to November 1, 2014; provided, that if the period from the
redemption date to November 1, 2014 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will be used.



     “Comparable Treasury Price” means, with respect to any redemption date:




     (1) the average of the Reference Treasury Dealer Quotations for that redemption date,
after excluding the highest and lowest of the Reference Treasury Dealer Quotations;




     (2) if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the
average of all Reference Treasury Dealer Quotations so received; or




     (3) if only one Reference Treasury Dealer Quotation is received, such quotation.



     “Independent Investment Banker” means one of the Reference Treasury Dealers selected by the
Company.



     “Reference Treasury Dealer” means each of four primary U.S. Government securities dealers in
New York City (each a “Primary Treasury Dealer”), consisting of (i) J.P. Morgan Securities LLC (or
its affiliate), and (ii) three other nationally recognized investment banking firms (or their
affiliates) that the Company selects in connection with the particular redemption, and their
respective successors, provided that if any of them ceases to be a Primary Treasury Dealer, the
Company will substitute another nationally recognized investment banking firm (or its affiliate)
that is a Primary Treasury Dealer.



     “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Independent Investment Banker, of the
bid and asked prices for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at
3:30 p.m., New York City time, on the third Business Day preceding that redemption date.



     “Treasury Rate” means, with respect to any redemption date, the rate per year equal to the
semi-annual equivalent yield to maturity or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, calculated on the third Business Day preceding the applicable



37









 




redemption date, assuming a price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for that redemption date.




     (c) Except pursuant Section 3.06(a) or Section 3.06(b), the Notes shall not be redeemable at
the Company’s option prior to November 1, 2014.



     (d) On or after November 1, 2014, the Company may on any one or more occasions redeem all or a
part of the Notes on not less than 30 days nor more than 60 days notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest
and additional interest, if any, on the Notes redeemed, to, but excluding, the applicable
redemption date, if redeemed during the twelve-month period beginning on November 1 of the years
indicated below, subject to the rights of Holders on the relevant record date to receive interest
and additional interest, if any, on the relevant interest payment date:



	 	 	 	 	 
	Year	 	Percentage
	2014
	 	 	103.813	%
	 
	 	 	 	 
	2015
	 	 	101.906	%
	 
	 	 	 	 
	2016 and thereafter
	 	 	100.000	%






          (e) Any redemption pursuant to this Section 3.06 shall be made in a manner consistent with the
provisions of Sections 3.01 through 3.05 hereof to the extent applicable.




     Unless the Company defaults in the payment of the applicable redemption price, on and after
the applicable redemption date, interest will cease to accrue on the Notes or portions of the Notes
called for redemption.



     If the optional redemption date is after an interest record date and on or before the related
interest payment date, the accrued and unpaid interest, if any, will be paid to the Person in whose
name the Note is registered at the close of business, on such record date, and no additional
interest shall be payable to Holders whose Notes are subject to redemption by the Company.



ARTICLE 4




Covenants



          SECTION 4.01. Payment of Notes. The Company shall promptly pay the principal of and
interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture.
Principal and interest shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and
interest then due.







38









 








          The Company shall pay interest on overdue principal at the rate specified therefor in the
Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent
lawful.




          SECTION 4.02. SEC Reports.




     (a) So long as any Notes are outstanding, the Company will furnish to the Trustee and the
Holders:




     (1) within 90 days after the end of each fiscal year, annual reports of the Company
containing substantially all of the information that would have been required to be
contained in an Annual Report on Form 10-K under the Exchange Act if the Company had been a
reporting company under the Exchange Act (but only to the extent similar information was
included in the Offering Memorandum), including (A) “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and (B) audited financial statements prepared
in accordance with GAAP, or to the extent the Company is a reporting Company, the Annual
Report on Form 10-K as filed under the Exchange Act;




     (2) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, quarterly reports of the Company containing substantially all of the
information that would have been required to be contained in a Quarterly Report on Form 10-Q
under the Exchange Act if the Company had been a reporting company under the Exchange Act
(but only to the extent similar information was provided in the Offering Memorandum),
including (A) “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and (B) unaudited quarterly financial statements prepared in accordance with
GAAP and reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor
provision), or to the extent the Company is a reporting Company, the Quarterly Report on
Form 10-Q as filed under the Exchange Act; and




     (3) within five Business Days after the occurrence of each event that would have been
required to be reported in a Current Report on Form 8-K under the Exchange Act if the
Company had been a reporting company under the Exchange Act, current reports containing
substantially all of the information that would have been required to be contained in a
Current Report on Form 8-K under the Exchange Act if the Company had been a reporting
company under the Exchange Act; provided, however, that no such current report will be
required to be furnished if the Company determines in its good faith judgment that such
event is not material to Holders or the business, assets, operations, financial positions or
prospects of the Company and its Restricted Subsidiaries, taken as a whole;



     provided, however, that such reports (A) will not be required to comply with Section 302 or
Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K
promulgated by the SEC, or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial
measures contained therein) and (B) will not be required to contain the separate financial
information for Guarantors contemplated by Rule 3-10 of Regulation S-X promulgated



39









 




by the SEC. The availability of the foregoing materials on the SEC’s Edgar service shall be
deemed to satisfy the delivery obligation of the Company.




          (b) So long as any Notes are outstanding, the Company will also maintain a public website to
which all of the reports required by Section 4.02(a) are posted.




     In addition, the Company shall furnish to Holders, prospective investors approved by the
Company, broker-dealers approved by the Company and securities analysts, upon their request, any
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long
as the Notes are not freely transferable under the Securities Act. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).



          SECTION 4.03. Limitation on Indebtedness.




          (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur, directly
or indirectly, any Indebtedness; provided, however, that the Company and any Subsidiary Guarantor
shall be entitled to Incur Indebtedness if, on the date of such Incurrence and after giving effect
thereto on a pro forma basis, the Consolidated Leverage Ratio would be less than 6.00 to 1.




          (b) Notwithstanding the foregoing paragraph (a), the Company and the Restricted Subsidiaries
shall be entitled to Incur any or all of the following Indebtedness:





     (1) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries under
this Section 4.03(b)(1) that, after giving effect to any such Incurrence, does not exceed
$250 million at any time outstanding;




     (2) Indebtedness of the Company in an aggregate principal amount which, when taken
together with all other Indebtedness of the Company Incurred pursuant to this Section
4.03(b)(2) and then outstanding, does not exceed 175% of the Net Cash Proceeds received by
the Company since immediately after the Issue Date from the issue or sale of Capital Stock
of the Company or cash contributed to the capital of the Company (in each case other than
proceeds of Disqualified Stock or sales of Capital Stock to the Company or any of its
Subsidiaries); provided, however, that (A) any Indebtedness Incurred under this Section
4.03(b)(2) after November 1, 2013 shall have a weighted Average Life that is greater than
the then remaining weighted Average Life of the Notes and (B) any Indebtedness Incurred
under this Section 4.03(b)(2) shall consist only of Subordinated Obligations; provided
further, however, that any Net Cash Proceeds or cash contributions received by the Company
pursuant to this Section 4.03(b)(2) and used to Incur Indebtedness pursuant to this Section
4.03(b)(2), shall be excluded from the calculation of amounts under Section 4.04(a)(3)(B);




     (3) Indebtedness owed to and held by the Company or a Restricted Subsidiary; provided,
however, that (A) any subsequent issuance or transfer of any



40









 







Capital Stock which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the
Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the obligor thereon and (B) if the Company is the obligor
on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Notes;




     (4) the Notes (other than any Additional Notes) and the Note Guarantees;




     (5) Indebtedness of the Company or its Subsidiaries outstanding on the Issue Date;




     (6) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the
date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred
in connection with, or to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions pursuant to which such
Subsidiary became a Subsidiary or was acquired by the Company); provided, however, that on
the date of such acquisition and after giving pro forma effect thereto, the Company would
have been entitled to Incur at least $1.00 of additional Indebtedness pursuant to Section
4.03(a);




     (7) Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to Section
4.03(a) or pursuant to clause (2), (4), (5), (6), (13) or (14) of this Section 4.03(b) or
this clause (7); provided, however, that to the extent such Refinancing Indebtedness
directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause
(6), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;




     (8) Hedging Obligations directly related to Indebtedness permitted to be Incurred by
the Company and its Restricted Subsidiaries pursuant to this Indenture;




     (9) obligations in respect of workers’ compensation claims, self-insurance obligations,
performance, bid and surety bonds and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business;




     (10) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business; provided, however, that such Indebtedness is extinguished within five Business
Days of its Incurrence;




     (11) unsecured Subordinated Obligations or Disqualified Stock of the Company in an
aggregate principal amount not in excess of $250 million outstanding (at any one time)
Incurred to finance the construction, expansion, development or acquisition of music
libraries and other recorded music programming, furniture, fixtures and equipment (including
satellites, ground stations and related equipment) if such Subordinated Obligations or
Disqualified Stock, as applicable, has a weighted Average Life longer than the weighted
Average Life of the Notes and has a final Stated Maturity of principal later than the Stated
Maturity of the principal of the Notes;



41









 






     (12) Indebtedness arising from agreements of the Company or any of its Restricted
Subsidiaries providing for indemnification, adjustment of purchase price or similar
Obligations, in each case, Incurred or assumed in connection with the disposition of any
business, assets or Capital Stock of a Restricted Subsidiary; provided, however, the maximum
aggregate liability in respect of all such Indebtedness shall at no time exceed the gross
proceeds actually received by the Company and its Restricted Subsidiaries in connection with
such disposition;




     (13) any Indebtedness which becomes an Obligation of the Company as a result of a
Company-Sirius Merger;




     (14) Replacement Satellite Vendor Indebtedness;




     (15) Purchase Money Obligations, Attributable Debt in respect of Sale/Leaseback
Transactions and Capital Lease Obligations of the Company or any of its Restricted
Subsidiaries in an aggregate principal amount not in excess of $50 million at any time
outstanding; and




     (16) unsecured Subordinated Obligations or Disqualified Stock of the Company in an
aggregate principal amount (or liquidation preference, as applicable), (including the
aggregate principal amount (or liquidation preference, as applicable) of all Refinancing
Indebtedness Incurred to refund, Refinance or replace any Indebtedness or Disqualified
Stock, as applicable, Incurred pursuant to this Section 4.03(b)(16)) at any time outstanding
not to exceed the product of (a) $100.00 and (b) the number of Subscribers at such time if
such subordinated Indebtedness or Disqualified Stock, as applicable, has a weighted Average
Life longer than the weighted Average Life of the Notes and has a final maturity date later
than the final maturity date of the Notes.



          (c) Notwithstanding the foregoing, the Company shall not be entitled to Incur any Indebtedness
pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance
any Subordinated Obligations of the Company unless such Indebtedness shall be subordinated to the
Notes to at least the same extent as such Subordinated Obligations.




          (d) For purposes of determining compliance with this Section 4.03:





     (1) in the event that an item of Indebtedness (or any portion thereof) meets the
criteria of more than one of the types of Indebtedness described in Sections 4.03(a), (b)
and (c), the Company, in its sole discretion, shall classify such item of Indebtedness (or
any portion thereof) at the time of Incurrence and shall only be required to include the
amount and type of such Indebtedness in one of the above clauses;




     (2) the Company shall be entitled to divide and classify (and later reclassify) an item
of Indebtedness in more than one of the types of Indebtedness described above;




     (3) any Indebtedness Incurred under clauses (1), (2) or (15) of Section 4.03(b) shall
cease to be deemed Incurred or outstanding for purposes of those clauses, respectively, but
instead shall be deemed to be Incurred for purposes of Section 4.03(a)



42









 







from and after the first date on which the Company could have Incurred such
Indebtedness under Section 4.03(a) without reliance on any of such clauses;




     (4) Guarantees of, or Obligations in respect of letters of credit relating to,
Indebtedness which is otherwise included in the determination of a particular amount of
Indebtedness shall not be included;




     (5) any Disqualified Stock of the Company or Preferred Stock of a Restricted Subsidiary
will be deemed to have a principal amount equal to the greater of the maximum mandatory
redemption or repurchase price (not including, in either case, any redemption or repurchase
premium) or the liquidation preference thereof; and




     (6) Increases in the amount of Indebtedness solely as a result of fluctuations in the
exchange rate of currencies will not be deemed to be an Incurrence of Indebtedness for
purposes of this Section 4.03.



          SECTION 4.04. Limitation on Restricted Payments.




          (a) The Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to, make a Restricted Payment if at the time the Company or such Restricted Subsidiary
makes such Restricted Payment:





     (1) a Default shall have occurred and be continuing (or would result therefrom);




     (2) the Company is not entitled to Incur an additional $1.00 of Indebtedness under
Section 4.03(a); or




     (3) the aggregate amount of such Restricted Payment and all other Restricted Payments
since March 17, 2010 would exceed the sum of (without duplication):




     (A) 100% of Consolidated Operating Cash Flow accrued during the period (treated
as one accounting period) from the beginning of the first fiscal quarter during
which the Company generates positive Consolidated Operating Cash Flow to the end of
the most recent fiscal quarter for which internal financial statements are available
less 1.4 times the Consolidated Interest Expense for the same period; plus




     (B) 100% of the aggregate Net Cash Proceeds received by the Company from the
issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to
March 17, 2010 (other than an issuance or sale to a Subsidiary of the Company and
other than an issuance or sale to an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit of their
employees), 100% of any cash capital contribution received by the Company from its
stockholders subsequent to March 17, 2010 and 100% of the fair market value (as
determined by the Board of Directors) of the consideration (if other than cash) from
the issue or sale of Capital Stock (other than Disqualified Stock) of the Company;
provided, however,



43









 







that any Net Cash Proceeds received by the Company from the issue or sale of
its Capital Stock or cash capital contributions received by the Company and used to
Incur Indebtedness pursuant to Section 4.03(b)(2) shall be excluded from the
calculation of Net Cash Proceeds and cash capital contributions under this clause
(B) until and to the extent any Indebtedness Incurred pursuant to Section 4.03(b)(2)
in respect of such Net Cash Proceeds or cash capital contributions has been treated,
pursuant to Section 4.03(b)(3), as Incurred pursuant to Section 4.03(a); plus




     (C) the amount by which Indebtedness of the Company or any Restricted
Subsidiary is reduced on the Company’s balance sheet upon the conversion or exchange
subsequent to March 17, 2010 of any Indebtedness convertible or exchangeable for
Capital Stock (other than Disqualified Stock) of the Company (less the amount of any
cash, or the fair value (as determined in good faith by the Board of Directors) of
any other property, distributed by the Company upon such conversion or exchange);
plus




     (D) an amount equal to the sum of (i) the net reduction in the Investments
(other than Permitted Investments) made by the Company or any Restricted Subsidiary
in any Person resulting from repurchases, repayments or redemptions of such
Investments by such Person, proceeds realized on the sale of such Investment and
proceeds representing the return of capital (excluding dividends and distributions
to the extent included in Consolidated Operating Cash Flow), in each case received
by the Company or any Restricted Subsidiary, and (ii) to the extent such Person is
an Unrestricted Subsidiary, the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the fair market value (as determined in good faith
by the Board of Directors) of the net assets of such Unrestricted Subsidiary at the
time such Unrestricted Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case of any such Person or
Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments)
previously made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Person or Unrestricted Subsidiary.



          (b) The preceding provisions of Section 4.04(a) shall not prohibit:





     (1) any Restricted Payment made within 90 days of the receipt of Net Cash Proceeds from
the sale of, or made by exchange for, Capital Stock of the Company (other than Disqualified
Stock and other than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or a trust established by the Company or any of its
Subsidiaries for the benefit of their employees) or a substantially concurrent cash capital
contribution received by the Company; provided, however, that (A) such Restricted Payment
shall be excluded from subsequent calculations of the amount of Restricted Payments and (B)
the Net Cash Proceeds from such sale or such cash capital contribution (to the extent so
used for such Restricted Payment) shall be excluded from the calculation of amounts under
Section 4.04(a)(3)(B);



44









 






     (2) any purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Obligations of the Company made within 90 days by exchange for, or
out of the proceeds of, the Incurrence of Indebtedness of such Person which is permitted to
be Incurred pursuant to Section 4.03; provided, however, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value shall be excluded from
subsequent calculations of the amount of Restricted Payments;




     (3) any purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Obligations of the Company Incurred pursuant to Section
4.03(b)(11) or Section 4.03(b)(16) made by exchange for, or out of the proceeds of, the
substantially concurrent Incurrence of, Subordinated Obligations that have, at the time of
Incurrence, a weighted Average Life that is greater than the then remaining weighted Average
Life of the Notes and a Stated Maturity that is later than the date that is 91 days after
the Stated Maturity of the Notes; provided, however, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value shall be excluded from
subsequent calculations of the amount of Restricted Payments;




     (4) dividends paid within 60 days after the date of declaration thereof if at such date
of declaration such dividend would have complied with this Section 4.04; provided, however,
that such dividend shall be included in subsequent calculations of the amount of Restricted
Payments;




     (5) the declaration or payment of dividends on Disqualified Stock issued pursuant to
Section 4.03; provided, however, that at the time of declaration of such dividend, no
Default shall have occurred and be continuing (or result therefrom); provided further,
however, that such dividends shall be excluded from subsequent calculations of the amount of
Restricted Payments;




     (6) repurchases of Capital Stock deemed to occur upon exercise of stock options,
warrants or other convertible securities if such Capital Stock represents a portion of the
exercise price thereof; provided, however, that such Restricted Payments shall be excluded
from subsequent calculations of the amount of Restricted Payments;




     (7) cash payments in lieu of the issuance of fractional shares in connection with a
reverse stock split of the Capital Stock of the Company or the exercise of warrants, options
or other securities convertible into or exchangeable for Capital Stock of the Company;
provided, however, that any such cash payment shall not be for the purpose of evading the
limitation of this Section 4.04(b) (as determined in good faith by the Board of Directors);
provided further, however, that such payments shall be excluded in subsequent calculations
of the amount of Restricted Payments;




     (8) in the event of a Change of Control or to the extent permitted by Section 4.06, and
if no Default shall have occurred and be continuing, the payment, purchase, redemption,
defeasance or other acquisition or retirement of Subordinated Obligations of the Company, in
each case, at a purchase price not greater than 101% of the principal amount of such
Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however,
that prior to such payment, purchase, redemption, defeasance or other



45









 







acquisition or retirement, the Company (or a third party to the extent permitted by
this Indenture) has made a Change of Control Offer or Offer with respect to the Notes and
has repurchased all Notes validly tendered and not withdrawn in connection with such Change
of Control Offer or Offer; provided further, however, that such payments, purchases,
redemptions, defeasances or other acquisitions or retirements shall be excluded from
subsequent calculations of the amount of Restricted Payments;




     (9) payments of intercompany Subordinated Obligations, the Incurrence of which was
permitted under Section 4.03(b)(3); provided, however, that no Default has occurred and is
continuing or would otherwise result therefrom; provided further, however, that such
payments shall be excluded from subsequent calculations of the amount of Restricted
Payments;




     (10) the repurchase, redemption or other acquisition or retirement for value of any
equity interests of Sirius XM Radio Inc. (other than Disqualified Stock) held by any
employee or director of the Company made in lieu of withholding taxes resulting from the
exercise, exchange or conversion of stock options, warrants or other similar rights;
provided, however, that no Default has occurred and is continuing or would otherwise result
therefrom; provided further, however, that such payments shall be excluded from subsequent
calculations of the amount of Restricted Payments;




     (11) cash dividends, distributions, loans or other transfers to Sirius XM Radio Inc. in
amounts equal to:




(A) for so long as the Company is a member of a group filing a consolidated
or combined tax return with Sirius XM Radio Inc., payments to Sirius XM
Radio Inc. in respect of an allocable portion of the tax liabilities of such
group that is attributable to the Company and its Subsidiaries (“Tax
Payments”). The Tax Payments shall not exceed the lesser of (i) the amount
of the relevant tax (including any penalties and interest) that the Company
would owe if the Company were filing a separate tax return (or a separate
consolidated or combined return with its Subsidiaries that are members of
the consolidated or combined group), taking into account any carryovers and
carrybacks of tax attributes (such as net operating losses) of the Company
and such Subsidiaries from other taxable years and (ii) the net amount of
the relevant tax that Sirius XM Radio Inc. actually owes to the appropriate
taxing authority. Any Tax Payments received from the Company shall be paid
over to the appropriate taxing authority within 30 days of the receipt by
Sirius XM Radio Inc. of such Tax Payments or refunded to the Company; and




(B) any fees and expenses related to any Equity Offering or other financing
of any direct or indirect parent of the Company to the extent the proceeds
of such offering or financing are contributed to the Company.




     (12) so long as no Default has occurred and is continuing, (A) the purchase, redemption
or other acquisition of shares of Capital Stock of the Company, Sirius XM



46









 







Radio Inc. or any of their respective Subsidiaries from employees, former employees,
directors or former directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former directors), pursuant to
the terms of the agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors of the Company or Sirius XM Radio Inc. under
which such individuals purchase or sell or are granted the option to purchase or sell,
            shares of such Capital Stock; provided, however, that the aggregate amount of such
Restricted Payments (excluding amounts representing cancellation of Indebtedness) shall not
exceed $5 million in any calendar year; provided further, however, that such repurchases and
other acquisitions shall be excluded from subsequent calculations of the amount of
Restricted Payments and (B) loans or advances to employees of the Company or any Subsidiary
of the Company the proceeds of which are used to purchase Capital Stock of the Company or
Sirius XM Radio Inc., in an aggregate amount not in excess of $2 million at any one time
outstanding; provided, however, that the amount of such loans and advances will be excluded
from subsequent calculations of the amount of Restricted Payments;




     (13) any Restricted Payment to an Affiliate for the provision of administrative,
management, content or other business services, in each case to the extent permitted by
Section 4.07; and




     (14) other Restricted Payments in an amount not to exceed $40 million per calendar year
(with unused amounts in any calendar year being permitted to be carried over for the next
succeeding calendar years); provided, however, such Restricted Payments, when taken together
with all other Restricted Payments made pursuant to this clause (14) do not exceed $100
million in the aggregate in any calendar year; provided further, however, that no Default
has occurred and is continuing or would otherwise result therefrom; provided further,
however, that such payments shall be excluded from subsequent calculations of the amount of
Restricted Payments.



          The amount of all Restricted Payments (other than cash) shall be the fair market value on the
date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such
Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount
and any non-cash Restricted Payment shall be determined conclusively by the Board of Directors of
the Company acting in good faith.




          SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create
or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to the
Company or any Restricted Subsidiary, (b) make any loans or advances to the Company or any
Restricted Subsidiary or (c) transfer any of its property or assets to the Company or any
Restricted Subsidiary, except:





     (1) with respect to clauses (a), (b) and (c),



47









 






     (A) any encumbrance or restriction pursuant to an agreement in effect at or
entered into on the Issue Date;




     (B) any encumbrance or restriction with respect to a Restricted Subsidiary
pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by
such Restricted Subsidiary on or prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired
by the Company) and outstanding on such date;




     (C) any encumbrance or restriction pursuant to an agreement effecting a
Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section
4.05(1)(A) or (B) or this clause (C) or contained in any amendments, modifications,
restatements, renewals, increases, supplements, refundings or replacements to an
agreement referred to in Section 4.05(1)(A) or (B) or this clause (C); provided,
however, that the encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any such refinancing agreement or amendment are no less
favorable in any material respect to the Noteholders than encumbrances and
restrictions with respect to such Restricted Subsidiary contained in such
predecessor agreements on the Issue Date or the date such Restricted Subsidiary
became a Restricted Subsidiary, whichever is applicable;




     (D) any encumbrance or restriction with respect to a Restricted Subsidiary (or
any of its property or assets) imposed pursuant to an agreement entered into for the
sale or disposition of all or substantially all the Capital Stock or assets of such
Restricted Subsidiary (or the property or assets that are subject to such
restriction) pending the closing of such sale or disposition;




     (E) any encumbrance or restriction consisting of net worth provisions or
restrictions on cash or other deposits in leases and other agreements entered into
by the Company or any Restricted Subsidiary in the ordinary course of business;




     (F) any encumbrance or restriction consisting of customary provisions in joint
venture agreements relating to joint ventures that are not Restricted Subsidiaries
and other similar agreements entered into in the ordinary course of business; and




     (G) customary non-assignment provisions in contracts, licenses and leases
entered into in the ordinary course of business; and




     (2) with respect to Section 4.05(c) only,




     (A) any encumbrance or restriction consisting of customary nonassignment
provisions in leases governing leasehold interests to the extent



48









 







such provisions restrict the assignment or transfer of the lease or the
property leased thereunder;




     (B) any encumbrance or restriction contained in security agreements, pledges or
mortgages securing Indebtedness of a Restricted Subsidiary to the extent such
encumbrance or restriction restricts the transfer of the property subject to such
security agreements, pledges or mortgages;




     (C) any encumbrance or restriction consisting of (i) Purchase Money
Indebtedness for property acquired in the ordinary course of business and (ii)
Capitalized Lease Obligations permitted under this Indenture, in each case, that
impose encumbrances or restrictions of the nature described in Section 4.05(c) on
the property so acquired;




     (D) any encumbrance or restriction pursuant to customary provisions restricting
dispositions of real property interests set forth in any reciprocal easement
agreements of the Company or any Restricted Subsidiary;




     (E) applicable law; and




     (F) Liens securing Indebtedness that limit the right of the debtor to dispose
of the assets subject to such Lien.



          SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.




          (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, consummate any Asset Disposition unless:





     (1) the Company or such Restricted Subsidiary receives consideration at the time of
such Asset Disposition at least equal to the fair market value (including as to the value of
all non-cash consideration), as determined in good faith by the Board of Directors of the
Company, of the shares and assets subject to such Asset Disposition;




     (2) at least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or cash equivalents; and




     (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Company or such Restricted Subsidiary, as the case may be, at such Person’s
election in the case of clauses (A) or (B) below:




     (A) to the extent the Company or such Restricted Subsidiary elects (or is
required by the terms of any Indebtedness), to prepay, repay, redeem or purchase
Senior Indebtedness of the Company (including the Notes) or Indebtedness (other than
any Disqualified Stock) of any Wholly Owned Subsidiary (in each case other than
Indebtedness owed to the Company or an Affiliate of the Company) within one year
from the later of the date of such Asset Disposition or the receipt of such Net
Available Cash;



49









 






     (B) to acquire Additional Assets within one year from the later of the date of
such Asset Disposition or the receipt of such Net Available Cash; provided, however,
that the Company shall have an additional six months to apply such Net Available
Cash pursuant to this clause (B) if it shall have entered into a binding acquisition
or purchase contract in respect of Additional Assets prior to the expiration of such
one-year period; and/or




     (C) to the extent of the balance of such Net Available Cash after application
in accordance with clauses (A) and/or (B), to make an offer to the holders of the
Notes (and to holders of other Senior Indebtedness of the Company designated by the
Company) to purchase Notes (and such other Senior Indebtedness of the Company)
pursuant to and subject to the conditions contained in this Indenture;


provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness
pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently
retire such Indebtedness and shall cause the related loan commitment, if any, to be permanently
reduced in an amount equal to the principal amount so prepaid, repaid or purchased; and provided
further, however, that the prior proviso shall not affect the ability of the Company or such
Restricted Subsidiary to Incur Indebtedness under Section 4.03(b).




          Notwithstanding the foregoing provisions of this Section 4.06(a), the Company and the
Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with
this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset
Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $10 million.
Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash
shall be invested in Temporary Cash Investments or applied to temporarily reduce any revolving
credit Indebtedness.




          For the purposes of this Section 4.06(a), the following are deemed to be cash or cash
equivalents:





     (1) the assumption or discharge of Indebtedness of the Company (other than Obligations
in respect of Disqualified Stock of the Company) or any Restricted Subsidiary or other
liabilities (as shown on the most recent balance sheet (or notes thereto) of the Company or
the Restricted Subsidiary) and the release of the Company or such Restricted Subsidiary from
all liability on such Indebtedness or from such other liabilities in connection with such
Asset Disposition (in which case, such Person shall, without further action, be deemed to
have applied such deemed cash to Indebtedness in accordance with clause (3)(A) above); and




     (2) securities received by the Company or any Restricted Subsidiary from the transferee
that are converted within 30 days by the Company or such Restricted Subsidiary into cash, to
the extent of cash received in that conversion.



          (b) In the event of an Asset Disposition that requires the purchase of Notes (and other Senior
Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company






50









 







shall purchase Notes tendered pursuant to an offer by the Company for the Notes (and such
other Senior Indebtedness) (the “Offer”) at a purchase price of 100% of their principal amount (or,
in the event the Notes or such other Senior Indebtedness of the Company was issued with original
issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid
interest (or, in respect of such other Senior Indebtedness of the Company, such lesser price, if
any, as may be provided for by the terms of such Senior Indebtedness) in accordance with the
procedures (including prorating in the event of oversubscription) set forth in Section 4.06(c). If
the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to
their purchase, the Company will select the securities to be purchased on a pro rata basis but in
round denominations, which in the case of the Notes will be denominations of $2,000 principal
amount or multiples of $1,000 in excess of $2,000. The Company shall not be required to make such
an offer to purchase Notes (and other Senior Indebtedness of the Company) pursuant to Section
4.06(a)(3)(C) if the Net Available Cash available therefor is less than $10 million (which lesser
amount shall be carried forward for purposes of determining whether such an offer is required with
respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such
an offer to purchase, Net Available Cash shall be deemed to be reduced by the aggregate amount of
such offer.




          (c) Promptly, and in any event within 10 days after the Company becomes obligated to make an
Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a
written notice stating that the Holder may elect to have his Notes purchased by the Company either
in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is
oversubscribed) in integral multiples of $2,000 of principal amount, at the applicable purchase
price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after
the date of such notice (the “Purchase Date”) and shall contain such information concerning the
business of the Company which the Company in good faith believes will enable such Holders to make
an informed decision (which at a minimum will include (A) the most recent annual report, quarterly
report and any current report delivered to the Trustee in the prior 90 days pursuant to Section
4.02(a), other than current reports describing Asset Dispositions otherwise described in the
offering materials (or corresponding successor reports), (B) a description of material developments
in the Company’s business subsequent to the date of the latest of such reports and (C) if material,
appropriate pro forma financial information) and all instructions and materials necessary to tender
Notes pursuant to the Offer, together with the information contained in clause (3) below.





     (1) Not later than the date upon which written notice of an Offer is delivered to the
Trustee as provided below, the Company shall deliver to the Trustee an Officers’ Certificate
as to (A) the amount of the Offer (the “Offer Amount”), including information as to any
other Senior Indebtedness included in the Offer, (B) the allocation of the Net Available
Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the
compliance of such allocation with the provisions of Section 4.06(a) and (b). On such date,
the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary
Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase
Date if funds are immediately available by open of business, an amount equal to the Offer
Amount to be held for payment in accordance with the provisions of this Section. If the
Offer includes other Senior Indebtedness, the deposit



51









 







described in the preceding sentence may be made with any other paying agent pursuant to
arrangements satisfactory to the Trustee. Upon the expiration of the period for which the
Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for
cancellation the Notes or portions thereof which have been properly tendered to and are to
be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment
(or cause the delivery of payment) to each tendering Holder in the amount of the purchase
price. In the event that the aggregate purchase price of the Notes delivered by the Company
to the Trustee is less than the Offer Amount applicable to the Notes, the Trustee shall
deliver the excess to the Company promptly after the expiration of the Offer Period for
application in accordance with this Section 4.06.




     (2) Holders electing to have a Note purchased shall be required to surrender the Note,
with an appropriate form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to
withdraw their election if the Trustee or the Company receives not later than one Business
Day prior to the Purchase Date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note which was delivered for purchase by the Holder
and a statement that such Holder is withdrawing his election to have such Note purchased.
Holders whose Notes are purchased only in part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered.




     (3) At the time the Company delivers Notes to the Trustee which are to be accepted for
purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes
are to be accepted by the Company pursuant to and in accordance with the terms of this
Section 4.06. A Note shall be deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.



          (d) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any
Asset Swaps, unless:





     (1) at the time of entering into such Asset Swap and immediately after giving effect to
such Asset Swap, no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof;




     (2) in the event such Asset Swap involves the transfer by the Company or any Restricted
Subsidiary of assets having an aggregate fair market value, as determined by the Board of
Directors of the Company in good faith, in excess of $5 million, the terms of such Asset
Swap have been approved by a majority of the members of the Board of Directors of the
Company; and




     (3) in the event such Asset Swap involves the transfer by the Company or any Restricted
Subsidiary of assets having an aggregate fair market value, as determined by the Board of
Directors of the Company in good faith, in excess of $20 million, the Company has received a
written opinion from an Independent Qualified Party that such



52









 







Asset Swap is fair to the Company or such Restricted Subsidiary, as the case may be,
from a financial point of view.



          (e) The Company shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of Notes pursuant to this Indenture and this Section 4.06. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.06, the Company shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached
its obligations under this Indenture and this Section 4.06 by virtue of its compliance with such
securities laws or regulations.




          SECTION 4.07. Limitation on Affiliate Transactions.




          (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or
conduct any transaction (including the purchase, sale, lease or exchange of any property, employee
compensation arrangements or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company (an “Affiliate Transaction”) unless:





     (1) the terms of the Affiliate Transaction are no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained at the time of the Affiliate
Transaction in arm’s-length dealings with a Person who is not an Affiliate;




     (2) if such Affiliate Transaction involves an amount in excess of $5 million, the terms
of the Affiliate Transaction are set forth in writing and a majority of the directors of the
Company who have no direct financial interest with respect to such Affiliate Transaction
(other than as a stockholder of the Company or Sirius XM Radio Inc.) have determined in good
faith that the criteria set forth in clause (1) are satisfied and have approved the relevant
Affiliate Transaction as evidenced by a resolution of the Board of Directors; and




     (3) if such Affiliate Transaction involves an amount in excess of $20 million, the
Board of Directors of the Company shall also have received a written opinion from an
Independent Qualified Party to the effect that such Affiliate Transaction is fair, from a
financial standpoint, to the Company and its Restricted Subsidiaries or is not less
favorable to the Company and its Restricted Subsidiaries than could reasonably be expected
to be obtained at the time in an arm’s-length transaction with a Person who was not an
Affiliate.



          (b) The provisions of the preceding paragraph (a) shall not prohibit:





     (1) any Investment (other than a Permitted Investment) or other Restricted Payment, in
each case permitted to be made pursuant to Section 4.04;




     (2) any issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock options and
stock ownership or other employee benefit plans approved by the Board of Directors of the
Company or Sirius XM Radio Inc. or entered into in the ordinary course of business;




53











 






     (3) to the extent permitted by applicable law, loans or advances to employees in
the ordinary course of business in accordance with the past practices of the Company or its
Restricted Subsidiaries, but in any event not to exceed $2 million in the aggregate
outstanding at any one time;




     (4) the payment of reasonable and customary fees to, and indemnity provided on behalf
of, directors of the Company and its Restricted Subsidiaries who are not employees of the
Company or its Restricted Subsidiaries;




     (5) any transaction with the Company, a Restricted Subsidiary or joint venture or
similar entity which would constitute an Affiliate Transaction solely because the Company or
a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted
Subsidiary, joint venture or similar entity;




     (6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company to Affiliates of the Company and the granting of registration and other customary
rights in connection therewith;




     (7) any agreement as in effect on the Issue Date and described in the Offering
Memorandum, as these agreements may be amended, modified, supplemented, extended or renewed
from time to time (so long as any amendment, modification, supplement, extension or renewal
is not less favorable in any material respect to the Company or the Restricted Subsidiaries)
and the transactions evidenced thereby;




     (8) any transaction by the Company or any Restricted Subsidiary with an Affiliate
related to the purchase, sale or distribution of XM radios, subscription to XM services or
other products or services in the ordinary course of business including any such transaction
with an automotive manufacturer or similar business partner, which has been approved by a
majority of the members of the Board of Directors of the Company or Sirius XM Radio Inc. who
have no direct financial interest with respect to such Affiliate Transaction (other than as
a stockholder of the Company or Sirius XM Radio Inc.);




     (9) a Company-Sirius Merger;




     (10) any transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries; and




     (11) Investments described in clause (16) of the definition of Permitted
Investment in Section 1.01 herein.



          SECTION 4.08. Limitation on Line of Business. The Company shall not, and shall not
permit any Restricted Subsidiary, to engage in any business other than a Related Business.




          SECTION 4.09. Limitation on the Sale or Issuance of Capital Stock of Restricted
Subsidiaries. The Company:






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     (1) shall not, and shall not permit any Restricted Subsidiary to, sell, lease, transfer or
otherwise dispose of any Capital Stock of any Restricted Subsidiary to any Person (other than the
Company or a Wholly Owned Subsidiary), and




     (2) shall not permit any Restricted Subsidiary to issue any of its Capital Stock (other
than, if necessary, shares of its Capital Stock constituting directors’ or other legally
required qualifying shares) to any Person (other than to the Company or a Wholly Owned
Subsidiary), unless




     (A) immediately after giving effect to such issuance, sale or other
disposition, neither the Company nor any of its Subsidiaries own any Capital Stock
of such Restricted Subsidiary;




     (B) such issuance, sale or other disposition is treated as an Asset Disposition
and immediately after giving effect to such issuance, sale or other disposition,
such Restricted Subsidiary would continue to be a Restricted Subsidiary; or




     (C) immediately after giving effect to such issuance, sale or other
disposition, such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary and any Investment in such Person remaining after giving effect thereto
is treated as a new Investment by the Company and such Investment would be permitted
to be made under Section 4.04 if made on the date of such issuance, sale or other
disposition.



          For purposes of this Section 4.09, the creation of a Lien on any Capital Stock of a Restricted
Subsidiary to secure Indebtedness of the Company or any of its Restricted Subsidiaries will not be
deemed to be a violation of this Section 4.09; provided, however, that any sale or other
disposition by the secured party of such Capital Stock following foreclosure of its Lien will be
subject to this Section 4.09.




          SECTION 4.10. Change of Control.




          (a) Upon the occurrence of a Change of Control, each Holder shall have the right to
require that the Company repurchase such Holder’s Notes at a purchase price in cash equal to 101%
of the principal amount thereof on the date of purchase plus accrued and unpaid interest, if any,
to, but excluding, the date of purchase (subject to the right of holders of record on the relevant
record date to receive interest, if any, due on the relevant interest payment date), in accordance
with the terms contemplated in Section 4.10(b).




          (b) Within 30 days following any Change of Control, the Company shall mail or otherwise
deliver in accordance with the applicable procedures of DTC a notice to each Holder with a copy to
the Trustee (the “Change of Control Offer”) stating:





     (1) that a Change of Control has occurred and that such Holder has the right to require
the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the
principal amount thereof on the date of purchase, plus accrued and unpaid



55









 







interest to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest on the relevant interest payment date);




     (2) the circumstances and relevant facts regarding such Change of Control (including
information with respect to pro forma historical income, cash flow and capitalization, in
each case after giving effect to such Change of Control);




     (3) the Purchase Date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and




     (4) the instructions, as determined by the Company, consistent with this Indenture and
this Section 4.10, that a Holder must follow in order to have its Notes repurchased.



          (c) Holders electing to have a Note repurchased under this Section 4.10 will be required to
surrender the Note, with an appropriate form duly completed, to the Company at the address
specified in the notice at least three Business Days prior to the Purchase Date. Holders will be
entitled to withdraw their election if the Trustee or the Company receives not later than one
Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his election to have such
Note purchased.




          (d) On the Purchase Date, all Notes purchased by the Company under this Section 4.10 shall be
delivered by the Company to the Trustee for cancellation, and in accordance with Section 4.10(a),
the Company shall pay the purchase price plus accrued and unpaid interest, if any, to the Holders
entitled thereto.




          (e) Notwithstanding the foregoing provisions of this Section 4.10, the Company shall not be
required to make a Change of Control Offer following a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.10 applicable to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not withdrawn under such Change of Control
Offer.




          (f) The Company shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of Notes as a result of a Change of Control. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 4.10, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.10 by virtue of its compliance with such securities laws or
regulations.




          SECTION 4.11. Limitation on Liens. Neither the Company nor any Guarantor shall, and
the Company shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit
to exist any Lien (the “Initial Lien”) of any nature whatsoever on any of its properties (including
Capital Stock of a Restricted
Subsidiary), whether owned at the Issue Date or thereafter acquired, securing any
Indebtedness, other than Permitted Liens, without effectively



56









 






providing that the Notes shall be
secured equally and ratably with (or prior to) the obligations so secured for so long as such
obligations are so secured. Any Lien created for the benefit of the Holders of the Notes pursuant
to the preceding sentence shall provide by its terms that such Lien shall be automatically and
unconditionally released and discharged upon the release and discharge of the Initial Lien.




          SECTION 4.12. Limitation on Sale/Leaseback Transactions. The Company shall not, and
shall not permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction with
respect to any property unless:





     (1) the Company or such Restricted Subsidiary would be entitled to (A) Incur
Indebtedness in an amount equal to the Attributable Debt with respect to such Sale/Leaseback
Transaction pursuant to Section 4.03, and (B) create a Lien on such property securing such
Attributable Debt without equally and ratably securing the Notes;




     (2) the net proceeds received by the Company or any Restricted Subsidiary in connection
with such Sale/Leaseback Transaction are at least equal to the fair market value (as
determined by the Board of Directors) of such property; and




     (3) the Company applies the proceeds of such transaction in compliance with Section
4.06.



          SECTION 4.13. Compliance Certificate. The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company an Officers’ Certificate stating that in
the course of the performance by the signers of their duties as Officers of the Company they would
normally have knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the Default, its status and
what action the Company is taking or proposes to take with respect thereto.




          The Company shall deliver to the Trustee, as soon as possible and in any event within five
Business Days after the Company becomes aware of the occurrence of any Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’
Certificate setting forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.




          SECTION 4.14. Further Instruments and Acts. Upon request of the Trustee, or as
otherwise necessary, the Company shall execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more effectively the purpose of
this Indenture.




          SECTION 4.15. Changes in Covenants When Notes Rated Investment Grade.




     If on any date following the date of this Indenture:



          (a) The Notes are rated Baa3 or better by Moody’s and BBB- or better by Standard & Poor’s (or,
if either such entity ceases to rate the Notes for reasons outside of the control of the Company,
the equivalent investment grade credit rating from any other “nationally




57









 







recognized statistical
rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected
by the Company as a replacement agency); and




          (b) no Default or Event of Default shall have occurred and be continuing under this Indenture,
then, beginning on that day, the following Sections in this Indenture will no longer be applicable
to the Notes: 4.03, 4.04, 4.05, 4.06, 4.07, 4.09, 4.10, 4.12(1)(A), 4.12(3), 4.16 and 5.01(3).




          The Company shall promptly deliver to the Trustee an Officers’ Certificate certifying that the
conditions set forth in this Section 4.15, relating to the inapplicability of such covenants to the
Notes, have been complied with.




          SECTION 4.16. Limitation on Subordinated Indebtedness.




          The Company shall not Incur, and will not permit any Subsidiary Guarantor to Incur, any
Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of
the Company or such Subsidiary Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantees on substantially
identical or more favorable terms.




ARTICLE 5




Successor Company



          SECTION 5.01. When Company May Merge or Transfer Assets. The Company shall not
consolidate with or merge with or into, or convey, transfer, lease, assign or otherwise dispose of,
in one transaction or a series of transactions, directly or indirectly, all or substantially all
its assets to, any Person, unless:





     (1) the resulting, surviving or transferee Person (the “Successor Company”) shall be a
Person organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not the Company) shall
expressly assume, by agreements, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the Notes and this Indenture;




     (2) immediately after giving pro forma effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a
result of such transaction as having been Incurred by such Successor Company or such
Subsidiary at the time of such transaction), no Default shall have occurred and be
continuing;




     (3) immediately after giving pro forma effect to such transaction, the Successor
Company would have a Consolidated Leverage Ratio equal to or better than the Company’s
Consolidated Leverage Ratio immediately prior to the transaction; and



58









 






     (4) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture;


provided, however, that clause (3) will not be applicable to (A) a Restricted Subsidiary
consolidating with, merging into or transferring all or part of its properties and assets to the
Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the
Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction. In addition, the Company will not, directly or
indirectly, lease all or substantially all of the properties and assets of it and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to any other Person.




          This Section 5.01 will not apply to a consolidation, merger, sale, assignment, transfer,
conveyance or other disposition of properties or assets between or among the Company and any of its
Restricted Subsidiaries.




          This Section 5.01 will not apply to a Company-Sirius Merger.




          For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer or other
disposition of all or substantially all of the properties and assets of one or more Subsidiaries of
the Company, which properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a
consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.




          The Successor Company shall be the successor to the Company and shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture, and
the predecessor Company, except in the case of a lease, shall be released from the obligation to
pay the principal of and interest on the Notes.




ARTICLE 6




Defaults and Remedies



          SECTION 6.01. Events of Default. Each of the following is an “Event of Default”:





     (1) a default in any payment of interest on any Note when the same becomes due and
payable, and such default continues for a period of 30 days;




     (2) (A) a default in the payment of the principal of any Note when the same becomes due
and payable at its Stated Maturity, upon optional redemption, upon
declaration of acceleration or otherwise, or (B) the failure by the Company to purchase
Notes when required pursuant to this Indenture or the Notes;




     (3) the failure by the Company to comply with Section 5.01;



59









 






     (4) the failure by the Company to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06,
4.07, 4.09, 4.10 or 4.11 (other than a failure to purchase Notes when required under Section
4.06 or 4.10) and such failure continues for 30 days after the notice specified in the
second to last paragraph of this Section 6.01 below;




     (5) the failure by the Company to comply with any of its agreements contained in the
Notes or this Indenture (other than those referred to in clause (1), (2), (3) or (4) above
(or a failure to give notice described in clause (4) above)) and such failure continues for
60 days after the notice specified in the second to last paragraph of this Section 6.01
below;




     (6) Indebtedness of the Company or any Significant Subsidiary (other than with respect
to the Notes) is not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $25 million, or its foreign currency equivalent
at the time;




     (7) the Company or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Code:




     (A) commences a voluntary case;




     (B) consents to the entry of an order for relief against it in an involuntary
case;




     (C) consents to the appointment of a Custodian of it or for any substantial
part of its property; or




     (D) makes a general assignment for the benefit of its creditors;




or takes any comparable action under any foreign laws relating to insolvency;




     (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Code that:




     (A) is for relief against the Company or any Significant Subsidiary in an
involuntary case;




     (B) appoints a Custodian of the Company or any Significant Subsidiary or for
any substantial part of its property; or




     (C) orders the winding up or liquidation of the Company or any Significant
Subsidiary;




or any similar relief is granted under any foreign laws and the order or decree remains
unstayed and in effect for 60 days;



60









 






     (9) any final, nonappealable judgment or decree for the payment of money which, when
taken together with all other final, nonappealable judgments or decrees for the payment of
money, causes the aggregate amount of such judgments or decrees entered against the Company
or any Significant Subsidiary to exceed $25 million (net of any amounts with respect to
which an insurance company has acknowledged liability in writing), remains outstanding for a
period of 60 consecutive days following such judgment and is not discharged, waived or
stayed; or




     (10) any Subsidiary Guarantee of a Significant Subsidiary ceases to be in full force
and effect (except as contemplated by the terms of this Indenture) or is declared null and
void in a judicial proceeding or any Subsidiary Guarantor that is a Significant Subsidiary
denies or disaffirms its obligations under this Indenture or its Subsidiary Guarantee.



          The foregoing will constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.




          The term “Bankruptcy Code” means Title 11, United States Code, or any similar Federal
or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy Code.




          A Default under clauses (4) or (5) is not an Event of Default until the Trustee or the holders
of at least 25% in principal amount of the outstanding Notes notify the Company of the Default and
the Company does not cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such notice is a “Notice
of Default”.




          The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written
notice in the form of an Officers’ Certificate of any Event of Default under clause (6) and any
event which with the giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9), its status and what action the Company is taking or proposes to take with
respect thereto.




          SECTION 6.02. Acceleration. If an Event of Default (other than an Event of Default
specified in Section 6.01(7) or (8) with respect to the Company) occurs and is continuing, the
Trustee by written notice to the Company, or the Holders of at least 25% in principal amount of the
outstanding Notes by written notice to the Company and the Trustee, may declare the principal of
and accrued but unpaid interest on all the Notes to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable immediately. In the event of a declaration of
acceleration of the Notes because an Event of Default described in Section 6.01(6) with respect to
other Senior Indebtedness has occurred and is continuing, the declaration of acceleration of
the Notes shall be automatically annulled if the Event of Default or payment default
triggering such Event of Default pursuant to Section 6.01(6) shall be remedied or cured by the
Company or a Restricted Subsidiary of the Company or waived by the holders of the relevant
Indebtedness within 20 days after the declaration of acceleration




61









 







with respect thereto and if (1)
the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a
court of competent jurisdiction, and (2) all existing Defaults or Events of Default, except
nonpayment of principal, premium or interest on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived. If an Event of Default specified in Section
6.01(7) or (8) with respect to the Company occurs, the principal of and interest on all the Notes
shall ipso facto become and be immediately due and payable without any declaration or other act on
the part of the Trustee or any Noteholders. The Holders of a majority in principal amount of the
outstanding Notes by written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest that has become due
solely because of acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.




          SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of or interest on the
Notes or to enforce the performance of any provision of the Notes or this Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Noteholder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of
any other remedy. All available remedies are cumulative.




          SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in principal amount
of the Notes by written notice to the Trustee may waive an existing Default and its consequences
except (a) a Default in the payment of the principal of or interest on a Note (b) a Default arising
from the failure to redeem or purchase any Note when required pursuant to this Indenture or (c) a
Default in respect of a provision that under Section 9.02 cannot be amended without the consent of
each Noteholder affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.




          SECTION 6.05. Control by Majority. The Holders of a majority in principal amount of
the Notes may direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to
Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other Noteholders
or would involve the Trustee in personal liability; provided, however, that the Trustee may take
any other action
deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such action.




          SECTION 6.06. Limitation on Suits. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Noteholder may pursue any remedy with respect
to this Indenture or the Notes unless:





62









 









     (1) the Holder delivers to the Trustee written notice stating that an Event of Default
is continuing;




     (2) the Holders of at least 25% in principal amount of the Notes make a written request
to the Trustee to pursue the remedy;




     (3) such Holder or Holders offer to the Trustee security or indemnity satisfactory to
the Trustee against any loss, liability or expense;




     (4) the Trustee does not comply with the request within 60 days after receipt of the
request and the Trustee has received an offer of security or indemnity; and




     (5) the Holders of a majority in principal amount of the Notes do not give the Trustee
a direction inconsistent with the request thereof during such 60-day period.



          A Noteholder may not use this Indenture to prejudice the rights of another Noteholder or to
obtain a preference or priority over another Noteholder (it being understood that the Trustee does
not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Noteholders). In the event that the Definitive Notes are not issued to any
beneficial owner promptly after the Registrar has received a request from the Holder of a Global
Note to issue such Definitive Notes to such beneficial owner of its nominee, the Company expressly
agrees and acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to
this Indenture, the right of such beneficial holder of Notes to pursue such remedy with respect to
the portion of the Global Note that represents such beneficial holder’s Notes as if such Definitive
Notes had been issued.




          SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of principal of and
interest on the Notes held by such Holder, on or after the respective due dates expressed in the
Notes, or to bring suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.




          SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section
6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust
against the Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section 7.07.




          SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Noteholders allowed in any judicial proceedings relative to the Company, its
creditors or its property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent in writing to the
making of such payments directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and




63









 







advances of the Trustee, its agents and its
counsel, and any other amounts due the Trustee under Section 7.07.




          SECTION 6.10. Priorities. If the Trustee collects any money or property pursuant to
this Article 6, it shall pay out the money or property in the following order:





     FIRST: to the Trustee for amounts due under Section 7.07;




     SECOND: to Noteholders for amounts due and unpaid on the Notes for principal and
interest, ratably, without preference or priority of any kind, according to the amounts due
and payable on the Notes for principal and interest, respectively; and




     THIRD: to the Company.



          The Trustee may fix a record date and payment date for any payment to Noteholders pursuant to
this Section. At least 15 days before such record date, the Company shall mail to each Noteholder
and the Trustee a notice that states the record date, the payment date and amount to be paid.




          SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party litigant (other than
the Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate principal
amount of the Notes.




          SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.




          SECTION 6.13. Sole Remedy for Failure to Report. Notwithstanding any other provision
of this Indenture, the sole remedy for an Event of Default relating to the failure of the Company
to comply with its agreements under Section 4.02(a) of this Indenture will for the 180 calendar
days after the occurrence of such an Event of Default consist exclusively of the right to receive
additional interest (“Reporting Additional Interest”) on the principal amount of the Notes at a
rate equal to 0.50% per annum. This Reporting Additional Interest will be payable in the same
manner and on the same Interest Payment Dates and subject to the same terms as other interest
payable under this Indenture. Reporting Additional Interest will accrue on all outstanding Notes
from and including the date on which such Event of Default relating to a failure to comply with
Section 4.02(a) first occurs to but not including the 180th calendar day thereafter (or such





64









 







earlier date on which the Event of Default relating to a failure to comply with Section 4.02(a)
shall have been cured or waived). On such 180th calendar day (or such earlier date on which the
Event of Default relating to a failure to comply with Section 4.02(a) shall have been cured or
waived), such Reporting Additional Interest will cease to accrue and on such 180th calendar day the
Notes will be subject to acceleration and other remedies as provided in this Article 6 if the Event
of Default is continuing. For the avoidance of doubt, the provisions of this Section 6.13 will not
affect the rights of Holders in the event of the occurrence of any other Event of Default. For the
further avoidance of doubt, the Reporting Additional Interest shall not begin accruing until the
Company fails to comply with Section 4.02(a) for a period of 60 calendar days after written notice
of such failure is given to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of outstanding Notes.




ARTICLE 7




Trustee



          SECTION 7.01. Duties of Trustee.




          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care and skill in its
exercise of those rights and powers as a prudent Person would exercise or use under the
circumstances in the conduct of such Person’s own affairs.




          (b) Except during the continuance of an Event of Default:





     (1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated therein).



          (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:





     (1) this paragraph (c) does not limit the effect of paragraph (b) of this Section;




     (2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and



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     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



          (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.




          (e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.




          (f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.




          (g) The Trustee may refuse to perform any duty or exercise any right or power or extend or
risk its own funds or otherwise incur any financial liability unless it receives indemnity
reasonably satisfactory to it against any loss, liability or expense.




          (h) Every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section.




          SECTION 7.02. Rights of Trustee.




          (a) The Trustee may conclusively rely on and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate any fact or matter stated
in the document.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.




          (c) The Trustee may act directly or indirectly through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed with due care.




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers; provided, however, that the
Trustee’s conduct does not constitute willful misconduct or negligence.




          (e) The Trustee may consult with counsel, and the advice or opinion of counsel with respect to
legal matters relating to this Indenture and the Notes shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.




          (f) Any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.




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          (g) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.




          (h) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.




          (i) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.




          (j) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.




          (k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder;




          (l) The Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture; and




          (m) Neither the Trustee in its individual capacity, nor any of its owners, beneficiaries,
agents, officers, directors, employees, affiliates, successors or assigns will, in the absence of
an express agreement to the contrary, be personally liable for the payment of any amounts required
to be paid under the Notes or for the agreements of the Company contained herein.




          SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Trustee
must comply with Section 7.10.





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          SECTION 7.04. Trustee’s Disclaimer. The recitals contained herein and in the Notes,
except the Trustee’s certificates of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s
use or application of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in connection with the sale of
the Notes or in the Notes other than the Trustee’s certificate of authentication or the
determination as to which beneficial owners are entitled to receive any notices hereunder.




          SECTION 7.05. Notice of Defaults. If a Default occurs, is continuing and is known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default within 90 days after
it occurs or, if later, within 15 days after it is known to the Trustee, unless such Default has
been cured or waived before the giving of such notice. Except in the case of a Default in the
payment of principal of or interest on any Note (including payments pursuant to the mandatory
redemption provisions of such Note, if any), the Trustee may withhold the notice if and so long as
a committee of its Responsible Officers in good faith determines that withholding the notice is not
opposed to the interest of the Noteholder.




          SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, and in any event prior to July 15
in each year, the Trustee shall mail to each Noteholder a brief report dated as of such May 15.




          A copy of each report at the time of its mailing to Noteholders shall be filed with the SEC
and each stock exchange (if any) on which the Notes are listed. The Company agrees to promptly
notify the Trustee in writing whenever the Notes become listed on any stock exchange and of any
delisting thereof.




          SECTION 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from
time to time such compensation for its services as the Company and the Trustee shall from time to
time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all
expenses, disbursements and advances incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants
and experts.




          The Company agrees to indemnify and hold harmless the Trustee, the respective affiliates of
the Trustee, any predecessor Trustee, and the respective officers, directors, employees, agents
(including, without limitation each of their counsel), and controlling persons of the Trustee, and
each such affiliate (each, an “Indemnified Party”) from and against any and all claims, actions and
suits whether groundless or otherwise, and from and against any and all liabilities, losses,
damages and costs and expenses (including, without limitation, the reasonable fees and
disbursements of counsel and with respect to the Trustee, reasonably allocated costs and expenses
of in-house counsel and legal staff) of every nature and character arising out of or in connection
with any actual or threatened claim, litigation, investigation or proceeding relating to this
Agreement or the transactions contemplated hereby (other than any such actions or expenses




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resulting, as determined by a final order of a court of competent jurisdiction, from the gross
negligence or willful misconduct of the Indemnified Party seeking indemnification hereunder), in
each case including, without limitation, the reasonable fees and disbursements of counsel and
allocated costs of in-house counsel and legal staff incurred in connection with any such claim
investigation, litigation or other proceeding whether or not such Indemnified Party is a party
thereto, and the Company agrees to reimburse each Indemnified Party, upon demand, for all
out-of-pocket costs and expenses (including, without limitation, the reasonable fees and
disbursements of counsel and with respect to the Trustee, reasonably allocated costs and expenses
of in-house counsel and legal staff) incurred in connection with any of the foregoing. In
litigation, or the preparation therefor, the Indemnified Parties shall each be entitled to select
their own counsel and, in addition to the foregoing indemnity, the Company agrees to pay promptly
the reasonable fees and expenses of such counsel. If, and to the extent that the obligations of
the Company under this Section 7.07 are unenforceable for any reason, the Company hereby agrees to
make the maximum contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.




          The Company shall not make any claim against any Indemnified Party for any special, indirect
or consequential damages in respect of any breach or wrongful conduct (whether the claim therefor
is based in contract, tort or duty imposed by law) in connection herewith, arising out of or in any
way related to the transactions contemplated hereby, or any act, omission or event occurring in
connection herewith, and hereby waives, releases and agrees not to sue upon any such claim for any
such damages, whether or not accrued and whether or not known or suspected to exist in the
Company’s favor.




          The covenants contained in this Section 7.07 shall survive payment or satisfaction in full of
all other of the Obligations under this Indenture.




          To secure the Company’s payment obligations in this Section, the Trustee shall have a lien on
all money or property held or collected by the Trustee other than money or property held in trust
to pay principal of and interest on particular Notes.




          The Company’s payment obligations pursuant to this Section shall survive the discharge of this
Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(7) or (8) with respect to the Company, the
expenses, including the reasonable charges and expenses of its counsel, are intended to constitute
expenses of administration under the Bankruptcy Code.




          SECTION 7.08. Replacement of Trustee. The Trustee may resign at any time by so
notifying the Company, the Paying Agent and the Holders. The Holders of a majority in principal
amount of the Notes at the time outstanding may remove the Trustee by so notifying the Trustee and
the Company in writing and may appoint a successor Trustee. The Company shall remove the Trustee
if:





     (1) the Trustee fails to comply with Section 7.10;




     (2) the Trustee is adjudged bankrupt or insolvent;



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     (3) a receiver or other public officer takes charge of the Trustee or its property; or




     (4) the Trustee otherwise becomes incapable of acting.



          No resignation or removal of the Trustee shall be effective until a successor Trustee has been
appointed. The Company may appoint a temporary trustee until the appointment of such successor
Trustee. If the Trustee resigns, is removed by the Company or by the Holders of a majority in
principal amount of the Notes and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Noteholders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee upon the repayment of all the retiring Trustee’s fees and expenses
then due and payable and, subject to the lien provided for in Section 7.07.




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, at the Company’s expense, or the Holders of 10% in principal
amount of the Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.




          If the Trustee fails to comply with Section 7.10, any Noteholder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.




          SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges
or converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.




          In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall
have.




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          SECTION 7.10. Eligibility; Disqualification. The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent published annual report
of condition.




          SECTION 7.11. Trustee’s Application for Instructions from the Company. Any
application by the Trustee for written instructions from the Company may, at the option of the
Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any officer of
the Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received written instructions in
response to such application specifying the action to be taken or omitted.




ARTICLE 8




Discharge of Indenture; Defeasance



          SECTION 8.01. Discharge of Liability on Notes; Defeasance.




          (a) When (1) the Company delivers to the Trustee all outstanding Notes (other than Notes
replaced pursuant to Section 2.07) for cancellation or (2) all outstanding Notes have become due
and payable, or will become due and payable within one year, in either case, whether at maturity or
on a redemption date as a result of the mailing or delivery in accordance with the applicable
procedures of DTC of a notice of redemption pursuant to Article 3 hereof or otherwise and the
Company or a Subsidiary Guarantor irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Notes, including interest thereon to maturity or such
redemption date (other than Notes replaced pursuant to Section 2.07), and if in either case the
Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to
Section 8.01(c), cease to be of further effect with respect to all the outstanding Notes. The
Trustee shall join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers’
Certificate and an Opinion of Counsel and at the cost and expense of the Company.




          (b) Subject to Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all its
obligations under the Notes and this Indenture (“legal defeasance option”) or (2) its obligations
under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12 and 4.16 and the
operation of Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (but, in the case
of Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) and the limitations
contained in Section 5.01(3) (“covenant defeasance option”). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance option.




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          If the Company exercises its legal defeasance option, (i) payment of the Notes may not be
accelerated because of an Event of Default with respect thereto and (ii) the Note Guarantees in
effect at such time of exercise will terminate. If the Company exercises its covenant defeasance
option, payment of the Notes may not be accelerated because of an Event of Default specified in
Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (but, in the case of Sections
6.01(7) and (8), with respect only to Significant Subsidiaries) or because of the failure of the
Company to comply with Section 5.01(3).




          Upon satisfaction of the conditions set forth herein and upon request of the Company, the
Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.




          (c) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.03,
2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in this Article 8 shall survive until the Notes
have been paid in full. Thereafter, the Company’s obligations in Sections 7.07 and 8.05 shall
survive.




          SECTION 8.02. Conditions to Defeasance. The Company may exercise its legal defeasance
option or its covenant defeasance option only if:





     (1) the Company or a Guarantor irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations for the payment of principal of and interest on the Notes to
redemption or maturity, as the case may be;




     (2) the Company delivers to the Trustee a certificate from a nationally recognized firm
of independent accountants expressing their opinion that the payments of principal and
interest, when due and without reinvestment, on the deposited U.S. Government Obligations,
plus any deposited money without investment, will provide cash at such times and in such
amounts as will be sufficient to pay principal and interest when due on all the Notes to
maturity or redemption, as the case may be;




     (3) 123 days pass after the deposit is made and during the 123-day period no Default
specified in Sections 6.01(7) or (8) with respect to the Company occurs which is continuing
at the end of the period;




     (4) the deposit does not constitute a default under any other agreement binding on the
Company;




     (5) the Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended;




     (6) in the case of the legal defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (B) since the date of this
Indenture there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm that, the
Noteholders will not recognize income, gain or loss for Federal income



72









 







tax purposes as a
result of such deposit and defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
defeasance had not occurred;




     (7) in the case of the covenant defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Noteholders will not recognize
income, gain or loss for Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not occurred;




     (8) the Company delivers to the Trustee an Opinion of Counsel in the jurisdiction or
organization of the Company (if other than the United States) to the effect that (A) Holders
will not recognize income, gain or loss income tax purposes of such jurisdiction as a result
of such deposit and defeasance, and will be subject to income tax of such jurisdiction on
the same amounts, and in the same manner and at the same times as would have been the case
if such deposit and defeasance, had not occurred; and




     (9) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and discharge of the
Notes as contemplated by this Article 8 have been complied with.



          Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for
the redemption of Notes at a future date in accordance with Article 3.




          SECTION 8.03. Application of Trust Money. Subject to Section 8.04, the Trustee shall
hold in trust money or U.S. Government Obligations (including proceeds thereof) deposited with it
pursuant to this Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Notes.




          SECTION 8.04. Repayment to Company. Each of the Trustee and the Paying Agent shall
pay to the Company upon written request any excess money, U.S. Government Obligations or securities
held by them at any time.




          Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon written request any money held by them for the payment of principal or interest
with respect to the Notes that remains unclaimed for two years, and, thereafter, Noteholders
entitled to the money must look to the Company for payment as general creditors, unless an
applicable abandoned property law designates another person and the Trustee and the Paying Agent
shall have no further liability to the Holders with respect to such money for that period
commencing after the return thereof.




          SECTION 8.05. Indemnity for Government Obligations. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited
U.S. Government Obligations or the principal and interest received on such U.S. Government
Obligations.




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          SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under this
Indenture, and the Notes so discharged or defeased shall be revived and reinstated as though no
deposit had
occurred pursuant to this Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance with this Article 8;
provided, however, that, if the Company has made any payment of interest on or principal of any
Notes because of the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.




ARTICLE 9




Amendments



          SECTION 9.01. Without Consent of Holders. The Company, the Guarantors and the Trustee
may amend this Indenture, the Notes or the Note Guarantees without notice to or consent of any
Noteholder:





     (1) to cure any ambiguity, omission, defect or inconsistency;




     (2) to comply with Article 5;




     (3) to provide for uncertificated Notes in addition to or in place of certificated
Notes; provided, that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated Notes are described
in Section 163(f)(2)(B) of the Code;




     (4) to add Guarantees with respect to the Notes, including any Subsidiary Guarantees,
or to secure the Notes;




     (5) to add to the covenants of the Company or any of its Restricted Subsidiaries for
the benefit of the Holders or to surrender any right or power herein conferred upon the
Company or any of its Restricted Subsidiaries;




     (6) to make any change that does not adversely affect the rights of any Noteholder;




     (7) to release a Guarantor from its obligations under its Guarantee or this Indenture
in accordance with the applicable provisions of this Indenture;




     (8) to conform the text of this Indenture, the Notes or the Note Guarantees to any
provision in the Offering Memorandum under the heading “Description of notes”; or




     (9) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Notes; provided, however, that (a) compliance with this Indenture as so
amended would not result in Notes being transferred in violation of the



74









 







Securities Act or
any other applicable securities law and (b) such amendment does not materially and adversely
affect the rights of Holders to transfer Notes.



          After an amendment under this Section becomes effective, the Company shall mail to Noteholders
a notice briefly describing such amendment. The failure to give such notice to all Noteholders, or
any defect therein, shall not impair or affect the validity of an amendment under this Section.




          SECTION 9.02. With Consent of Holders. The Company, the Guarantors and the Trustee
may amend this Indenture, the Notes or the Note Guarantees with the written consent of the Holders
of at least a majority in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes) and any past default or
compliance with any provisions may also be waived with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding (including consents obtained in
connection with a tender offer or exchange offer for the Notes). However, without the consent of
each Noteholder affected thereby, an amendment or waiver may not, among other things:





     (1) reduce the amount of Notes whose Holders must consent to an amendment;




     (2) reduce the rate of or extend the time for payment of interest on any Note;




     (3) reduce the principal of or change the Stated Maturity of any Note;




     (4) reduce the amount payable upon the redemption of any Note or change the time at
which any Note may be redeemed as described in Article 3 hereto or paragraph 6 of the Notes;




     (5) make any Note payable in money other than that stated in the Note;




     (6) make any changes in the ranking or priority of any Note that would adversely affect
the Noteholders;




     (7) make any change in Section 6.04 or 6.07 or this second sentence of this Section
9.02;




     (8) impair the right of any holder of the Notes to receive payment of principal of and
interest on such holder’s Notes on or after the due dates therefor or to institute suit for
the enforcement of any payment on or with respect to such holder’s Notes; or




     (9) release any Guarantor from its Guarantee under this Indenture except in accordance
with this Indenture.



          It shall not be necessary for the consent of the Holders under this Section to approve the
particular form of any proposed amendment, but it shall be sufficient if such consent approves the
substance thereof.




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          After an amendment under this Section 9.02 becomes effective, the Company shall mail to
Noteholders a notice briefly describing such amendment. The failure to give such
notice to all Noteholders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.02.




          SECTION 9.03. Revocation and Effect of Consents and Waivers. A consent to an
amendment or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of
that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even
if notation of the consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note
if the Trustee receives the written notice of revocation before the date the amendment or waiver
becomes effective. After an amendment or waiver becomes effective, it shall bind every Noteholder.
An amendment or waiver becomes effective upon (i) receipt by the Company or the Trustee of consents
by the Holders of the requisite principal amount of securities, (ii) satisfaction of conditions to
effectiveness as set forth in this Indenture and any indenture supplemental hereto containing such
amendment or waiver and (iii) the execution of such amendment or waiver by the Trustee.




          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Noteholders entitled to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be entitled to give
such consent or to revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.




          SECTION 9.04. Notation on or Exchange of Notes. If an amendment, supplement or waiver
changes the terms of a Note, the Trustee or the Company may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the
changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a
new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a
new Note shall not affect the validity of such amendment.




          SECTION 9.05. Trustee To Sign Amendments. The Trustee shall sign any amendment,
supplement or waiver to this Indenture authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing such amendment the Trustee shall be entitled to
receive indemnity reasonably satisfactory to it and to receive, and (subject to Section 7.01) shall
be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that
such amendment, supplement or waiver is authorized or permitted by this Indenture.




          SECTION 9.06. Payment for Consent. Neither the Company nor any Affiliate of the Company shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such



76









 






consideration is offered to all Holders and is paid to all
Holders that so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.




ARTICLE 10




Guarantee



          SECTION 10.01. Guarantee.




          (a) Subject to this Article 10, each of the Guarantors shall, jointly and severally,
unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:





     (1) the principal of, premium and interest on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if lawful, and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid
in full or performed, all in accordance with the terms hereof and thereof; and




     (2) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise.



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.



          (b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenant that this Note Guarantee will
not be discharged except by complete performance of the obligations contained in the Notes and
this Indenture.




          (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to the



77









 






Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force
and effect.




          (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under this Note Guarantee.




          SECTION 10.02. Limitation on Guarantor Liability. Each Guarantor, and by its
acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that
this Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar federal or state law to the extent applicable to any Note Guarantee. To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably
agree that the Obligations of such Guarantor will be limited to the maximum amount that will, after
giving effect to such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other Guarantor in
respect of the Obligations of such other Guarantor under this Article 10, result in the Obligations
of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.




          SECTION 10.03. Delivery of Note Guarantee.




     The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Note Guarantee set forth in this Indenture or any supplemental
indenture on behalf of the Guarantors. Neither the Company nor any Guarantor shall be required to
make a notation on the Notes to reflect any Note Guarantee or any such release, termination or
discharge thereof.



     In the event that the Company or any of its Restricted Subsidiaries creates or acquires any
Material Subsidiary after the date of this Indenture, if required by Section 10.06 hereof, the
Company will cause such Material Subsidiary to comply with the provisions of Section 10.06 hereof
and the other Sections of this Article 10, to the extent applicable.



          SECTION 10.04. Guarantors May Consolidate, etc., on Certain Terms.




     Except as otherwise provided in Section 10.05 hereof, no Person that becomes a Guarantor may
at any time on or after the date hereof sell or otherwise dispose of all or



78









 




substantially all of
its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor, unless:




          (a) immediately after giving effect to such transaction, no Default or Event of Default
exists; and




          (b) either:





     (1) the Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger (the “Successor Guarantor”) assumes
all the Obligations of that Guarantor under this Indenture and its Note Guarantee pursuant
to agreements satisfactory to the Trustee; or




     (2) the Net Available Cash of such sale or other disposition is applied in accordance
with the applicable provisions of this Indenture, including without limitation, Section 4.06
hereof.



     In case of any such consolidation, merger, sale or conveyance and upon the assumption by the
successor Person pursuant to Section 10.04(b)(1) above, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of this Note Guarantee and the
due and punctual performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor. All Note Guarantees
so issued will in all respects have the same legal rank and benefit under this Indenture as the
Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as
though all of such Note Guarantees had been issued at the date of the execution hereof.



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding Section 10.04(b)(1) and
(b)(2) above, nothing contained in this Indenture or in any of the Notes will prevent any
consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will
prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.



     The Trustee, subject to the provisions of Section 11.03 hereof, will receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale or conveyance, and any such assumption of Obligations, comply with the provisions
of this Section 10.04 hereof. Such certificate and opinion will comply with the provisions of
Section 11.04.



          SECTION 10.05. Releases




          (a) In the event of any sale or other disposition of all or substantially all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all
of the Capital Stock of any Guarantor, in each case to a Person that is not (either before or after
giving effect to such transactions) the Company or a Restricted Subsidiary of the Company, then
such Guarantor (in the event of a sale or other disposition, by way of




79









 







merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Note Guarantee; provided that
the Net Available Cash of such sale or other disposition is applied in accordance with the
applicable provisions of this Indenture, including without limitation Section 4.06 hereof. Upon
delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.06 hereof, the Trustee will
execute any documents reasonably required in order to evidence the release of any Guarantor from
its obligations under its Note Guarantee.




          (b) Upon designation of any Guarantor as an Unrestricted Subsidiary in accordance with the
terms of this Indenture, such Guarantor will be released and relieved of any obligations under its
Note Guarantee.




          (c) If the legal defeasance option is exercised or this Indenture is otherwise discharged in
accordance with Article 8 hereof, each Guarantor will be released and relieved of any obligations
under its Note Guarantee.




     Any Guarantor not released from its obligations under its Note Guarantee as provided in this
Section 10.05 will remain liable for the full amount of principal of and interest and premium, if
any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided
in this Article 10.



          SECTION 10.06. Addition of Guarantors.




          (a) At any time on or after the Issue Date, (i) the Company shall cause any Person that
becomes a Material Subsidiary of the Company to become, and (ii) any successors or assigns of the
Company or any other Guarantor, including in connection with a Company-Sirius Merger, shall become,
a Guarantor hereunder as set forth in Section 10.06(b) below; provided, however, that if any such
new Material Subsidiary is an FCC License Subsidiary, it shall become a Subsidiary Guarantor
hereunder only to the extent permitted under applicable law, rules or regulations, including rules
and regulations of the Federal Communications Commission.




          (b) If any Guarantor that is not a Subsidiary of the Company or the Company is required to
cause a Subsidiary to become a Guarantor pursuant to Section 10.06(a), such Guarantor that is not a
Subsidiary of the Company or the Company will cause such Subsidiary to (1) reasonably promptly
execute and deliver to the Trustee a supplemental indenture substantially in the form of Exhibit 2
hereto pursuant to which such Subsidiary will unconditionally Guarantee all of the Company’s
Obligations under the Notes on the terms set forth in this Indenture and (2) deliver to the Trustee
an Opinion of Counsel reasonably satisfactory to the Trustee that such supplemental indenture has
been duly executed and delivered by such Subsidiary; provided however, that if such new Material
Subsidiary is an FCC License Subsidiary, the supplemental indenture shall state that the FCC
License Subsidiary shall Guarantee all of the Company’s Obligations under the Notes on the terms
set forth in this Indenture only to the extent permitted under applicable law, rules or
regulations, including rules and regulations of the Federal Communications Commission.





80











 





ARTICLE 11




Miscellaneous



                         SECTION 11.01. Notices. Unless otherwise specified herein, any notice or
communication given pursuant to this Indenture shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) in person or mailed by first-class
mail by a courier guaranteeing overnight delivery, sent to a party and its legal counsel at the
address set forth below for such party and its legal counsel hereto, with a copy of such
communication being sent via email to the email addresses set forth below for such party and its
legal counsel.


If to the Company:



XM Satellite Radio Inc.

1221 Avenue of the Americas, 36th Floor

New York, NY 10020

Attention: Patrick L. Donnelly, Secretary

Email: patrick.donnelly@siriusxm.com


with a copy to:


Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017

Attention: Gary Sellers, Esq.

Email: gsellers@stblaw.com




if to the Trustee:



U.S. Bank Corporate Trust Services

100 Wall Street, Suite 1600

New York, NY 10005

Attention: Thomas E. Tabor

Email: Thomas.Tabor@usbank.com




                         The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.



                         Any notice or communication mailed to a Noteholder shall be mailed to the Noteholder at the
Noteholder’s address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.



                         Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders.



81









 





                         SECTION 11.02. Communication by Holders with Other Holders. Noteholders may
communicate with other Noteholders with respect to their rights under this Indenture or the Notes.



                         SECTION 11.03. Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee, if requested by the Trustee:




                    (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and




                    (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have been
complied with.



                         SECTION 11.04. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture
shall include:




                    (1) a statement that the individual making such certificate or opinion has read such
covenant or condition;




                    (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




                    (3) a statement that, in the opinion of such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and




                    (4) a statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with; provided, however, that with respect to matters of
fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public
officials.



                         SECTION 11.05. When Notes Disregarded. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only Notes
outstanding at the time shall be considered in any such determination.



82









 





                         SECTION 11.06. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of Noteholders. The Registrar and the Paying Agent may
make reasonable rules for their functions.



                         SECTION 11.07. Legal Holidays. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on any
amount that would have been otherwise payable on such payment date if it were not a legal holiday
for the intervening period. If a regular record date is a Legal Holiday, the record date shall not
be affected.



                         SECTION 11.08. Governing Law, Submission to Jurisdiction. This Indenture and the
Notes shall be governed by, and construed in accordance with, the laws of the State of New York.



                         The Company submits to the non-exclusive jurisdiction of the courts of the State of New York
and the courts of the United States of America, in each case located in the Borough of Manhattan,
New York, New York over any suit, action or proceeding arising under or in connection with this
Indenture or the transactions contemplated hereby or the Notes or the Note Guarantees. The Company
waives, to the fullest extent permitted by applicable law, any objection that it may have to the
venue of any suit, action or proceeding arising under or in connection with this Indenture or the
transactions contemplated hereby or the Notes or the Note Guarantees in the courts of the State of
New York or the courts of the United States of America, in each case located in the Borough of
Manhattan, New York, New York, or that such suit, action or proceeding brought in the courts of the
State of New York or the courts of the United States of America, in each case located in the
Borough of Manhattan, New York, New York, was brought in an inconvenient court and agrees not to
plead or claim the same.



                         SECTION 11.09. No Recourse Against Others. No director, officer, employee or
stockholder, as such, of the Company, any of its Restricted Subsidiaries or Sirius XM Radio Inc.
shall have any liability for any obligations of the Company, any of its Restricted Subsidiaries or
any Guarantor under the Notes or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each Noteholder shall waive and
release all such liability. The waiver and release shall be part of the consideration for the issue
of the Notes.



                         SECTION 11.10. Successors. All agreements of the Company in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its
successors.



                         SECTION 11.11. Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.



                         SECTION 11.12. Table of Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.



83









 





                         SECTION 11.13. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.



                         SECTION 11.14. Force Majeure. In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



 









 





                         IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date
first written above.



	 	 	 	 	 
	 	





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 	 
	 



[XM Satellite Radio Inc. Indenture]





 









 





	 	 	 	 	 
	 	XM CAPITAL RESOURCES INC.

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

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



[XM Satellite Radio Inc. Indenture]





 









 





                         IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date
first written above.



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

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



[XM Satellite Radio Inc. Indenture]





 











 





RULE 144A/REGULATION S/IAI APPENDIX



PROVISIONS RELATING TO THE NOTES,



          1. Definitions.




          1.1. Definitions.




          For the purposes of this Appendix the following terms shall have the meanings indicated below:





     “Definitive Note” means a certificated Note bearing, if required, the
appropriate restricted securities legend set forth in Section 2.3(d).




     “Depository” means The Depository Trust Company, its nominees and their
respective successors.




     “Distribution Compliance Period”, with respect to any Notes, means the period
of 40 consecutive days beginning on and including the later of (i) the day on which such
Notes are first offered to Persons other than distributors (as defined in Regulation S under
the Securities Act) in reliance on Regulation S and (ii) the issue date with respect to such
Notes.




     “IAI” means an institutional “accredited investor”, as defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Securities Act.




     “Initial Purchasers” means (1) with respect to the Notes issued on the Issue
Date, J.P. Morgan Securities LLC, UBS Securities LLC, Morgan Stanley & Co. Incorporated and
Banc of America Securities LLC, and (2) with respect to each issuance of Additional Notes,
the Persons purchasing such Additional Notes under the related Purchase Agreement.




     “Notes” means the 7.625% Senior Notes due 2018.




     “Notes Custodian” means the custodian with respect to a Global Note (as
appointed by the Depository), or any successor Person thereto and shall initially be the
Trustee.




     “Purchase Agreement” means (1) with respect to the Notes issued on the Issue
Date, the Purchase Agreement dated October 13, 2010, among the Company and the Initial
Purchasers, and (2) with respect to each issuance of Additional Notes, the purchase
agreement or underwriting agreement among the Company and the Person(s) purchasing such
Additional Notes.




     “QIB” means a “qualified institutional buyer” as defined in Rule 144A.









 



 


2 





     “Rule 144A Notes” means all Notes offered and sold to QIBs in reliance on Rule
144A.




     “Securities Act” means the Securities Act of 1933.




     “Transfer Restricted Notes” means Notes that bear or are required to bear the
legend relating to restrictions on transfer relating to the Securities Act set forth in
Section 2.3(d) hereto.



          1.2. Other Definitions




	 	 	 	 	 
	Term	 	Defined In Section:
	“Agent Members”
	 	 	2.1	(b)
	“Global Notes”
	 	 	2.1	(a)
	“IAI Global Note”
	 	 	2.1	(a)
	“Regulation S”
	 	 	2.1	(a)
	“Regulation S Global Note”
	 	 	2.1	(a)
	“Rule 144A”
	 	 	2.1	(a)
	“Rule 144A Global Note”
	 	 	2.1	(a)






          2. The Notes.




          2.1. (a) Form and Dating. The Notes will be offered and sold by the Company
pursuant to a Purchase Agreement. The Notes will be resold initially only to (i) QIBs in reliance
on Rule 144A under the Securities Act (“Rule 144A”) and (ii) Persons other than U.S. Persons (as
defined in Regulation S) in reliance on Regulation S under the Securities Act (“Regulation S”). The
Notes may thereafter be transferred to, among others, QIBs, IAIs and purchasers in reliance on
Regulation S, subject to the restrictions on transfer set forth herein. The (A) Notes initially
resold pursuant to Rule 144A shall be issued initially in the form of one or more permanent global
Notes in definitive, fully registered form (collectively, the “Rule 144A Global Note”); (B) Notes
initially resold to IAIs shall be issued initially in the form of one or more permanent global
Notes in definitive, fully registered form (collectively, the “IAI Global Note”); and (C) Notes
initially resold pursuant to Regulation S shall be issued initially in the form of one or more
Regulation S global notes in registered, global form (collectively, the “Regulation S Global
Note”), and in each of cases (A), (B) and (C) without interest coupons and with the global
securities legend and the applicable restricted securities legends set forth in Exhibit 1 hereto,
which shall be deposited on behalf of the purchasers of the Notes represented thereby with the
Notes Custodian and registered in the name of the Depository or a nominee of the Depository, duly
executed by the Company and authenticated by the Trustee as provided in this Indenture. Except as
set forth in this Section 2.1(a), beneficial ownership interests in the Regulation S Global Note
will not be exchangeable for interests in the Rule 144A Global Note, the IAI Global Note, or any
other Note prior to the expiration of the Distribution Compliance Period and then, after the
expiration of the Distribution Compliance Period, may be exchanged for interests in a Rule 144A
Global Note or an IAI Global Note only upon certification in form reasonably satisfactory to the
Trustee that (i) beneficial ownership interests in such Regulation S Global Note are owned either
by non-U.S. persons or U.S. persons who purchased such interests in a










 



3

transaction that did not require registration under the Securities Act and (ii) in the case of
an exchange for an IAI Global Note, certification that the interest in the Regulation S Global Note
is being transferred to an institutional “accredited investor” under the Securities Act that is an
institutional accredited investor acquiring the securities for its own account or for the account
of an institutional accredited investor.




          Beneficial interests in Regulation S Global Notes or IAI Global Notes may be exchanged for
interests in Rule 144A Global Notes if (1) such exchange occurs in connection with a transfer of
Notes in compliance with Rule 144A and (2) the transferor of the beneficial interest in the
Regulation S Global Note or the IAI Global Note, as applicable, first delivers to the Trustee a
written certificate (in a form satisfactory to the Trustee) to the effect that the beneficial
interest in the Regulation S Global Note or the IAI Global Note, as applicable, is being
transferred to a Person (a) who the transferor reasonably believes to be a QIB, (b) purchasing for
its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and
(c) in accordance with all applicable securities laws of the States of the United States and other
jurisdictions.




          Beneficial interests in Regulation S Global Notes and Rule 144A Global Notes may be exchanged
for an interest in IAI Global Notes if (1) such exchange occurs in connection with a transfer of
the securities in compliance with an exemption under the Securities Act and (2) the transferor of
the Regulation S Global Note or Rule 144A Global Note, as applicable, first delivers to the Trustee
a written certificate (substantially in the form of Exhibit 2) to the effect that (A) the
Regulation S Global Note or Rule 144A Global Note, as applicable, is being transferred (a) to an
“accredited investor” within the meaning of 501(a)(1), (2), (3) and (7) under the Securities Act
that is an institutional investor acquiring the securities for its own account or for the account
of such an institutional accredited investor, in each case in a minimum principal amount of the
securities of $250,000, for investment purposes and not with a view to or for offer or sale in
connection with any distribution in violation of the Securities Act and (B) in accordance with all
applicable securities laws of the States of the United States and other jurisdictions.




          Beneficial interests in a Rule 144A Global Note or an IAI Global Note may be transferred to a
Person who takes delivery in the form of an interest in a Regulation S Global Note, whether before
or after the expiration of the Distribution Compliance Period, only if the transferor first
delivers to the Trustee a written certificate (in the form provided in this Indenture) to the
effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule
144 (as applicable) and that, if such transfer occurs prior to the expiration of the Distribution
Compliance Period, the interest transferred will be held immediately thereafter through Euroclear
or Clearstream.




          The Rule 144A Global Note, the IAI Global Note or and the Regulation S Global Note are
collectively referred to herein as “Global Notes”. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee as hereinafter provided.













 



4




          (b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Note
deposited with or on behalf of the Depository.




          The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b) and
Section 2.2, authenticate and deliver initially one or more Global Notes that (a) shall be
registered in the name of the Depository for such Global Note or Global Notes or the nominee of
such Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such
Depository’s instructions or held by the Trustee as custodian for the Depository.




          Members of, or participants in, the Depository (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the Depository or by the
Trustee as the custodian of the Depository or under such Global Note, and the Company, the Trustee
and any agent of the Company or the Trustee shall be entitled to treat the Depository as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the operation of customary
practices of such Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.




          (c) Definitive Notes. Except as provided in this Section 2.1 or Section 2.3 or 2.4,
owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery
of Definitive Notes.




          2.2. Authentication. The Trustee shall authenticate and deliver: (1) on the Issue
Date, 7.625% Senior Notes due 2018 with an aggregate principal amount of $700,000,000 and (2) any
Additional Notes for an original issue in an aggregate principal amount specified in the written
order of the Company pursuant to Section 2.02 of this Indenture, in each case upon a written order
of the Company signed by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company. Such order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of Notes is to be authenticated.




          2.3. Transfer and Exchange. (a) Transfer and Exchange of Definitive Notes.
When Definitive Notes are presented to the Registrar with a request:





     (i) to register the transfer of such Definitive Notes; or




     (ii) to exchange such Definitive Notes for an equal principal amount of
Definitive Notes of other authorized denominations,


the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Definitive Notes surrendered
for transfer or exchange:





     (1) shall be duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or its attorney duly authorized in writing; and









 



5



     (2) if such Definitive Notes are required to bear a restricted securities
legend, they are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act, pursuant to Section 2.3(b) or
pursuant to clause (A), (B) or (C) below, and are accompanied by the following
additional information and documents, as applicable:




     (A) if such Definitive Notes are being delivered to the Registrar by
a Holder for registration in the name of such Holder, without transfer, a
written certification from such Holder to that effect; or




     (B) if such Definitive Notes are being transferred to the Company, a
written certification to that effect; or




     (C) if such Definitive Notes are being transferred (x) pursuant to an
exemption from registration in accordance with Rule 144A, Regulation S or
Rule 144 under the Securities Act; or (y) in reliance upon another exemption
from the requirements of the Securities Act: (i) a written certification to
that effect (in the form set forth on the reverse of the Note) and (ii) if
the Company so requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions set forth in
the legend set forth in Section 2.3(d)(i).



          (b) Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global
Note. A Definitive Note may not be exchanged for a beneficial interest in a Rule 144A Global
Note, an IAI Global Note or a Regulation S Global Note except upon satisfaction of the requirements
set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee, together with:





     (i) certification, in the form set forth on the reverse of the Note, that
such Definitive Note is either (A) being transferred to a QIB in accordance with
Rule 144A, (B) being transferred to an IAI or (C) being transferred after expiration
of the Distribution Compliance Period by a Person who initially purchased such Note
in reliance on Regulation S to a buyer who elects to hold its interest in such Note
in the form of a beneficial interest in the Regulation S Global Note; and




     (ii) written instructions directing the Trustee to make, or to direct the
Notes Custodian to make, an adjustment on its books and records with respect to such
Rule 144A Global Note (in the case of a transfer pursuant to clause (b)(i)(A)), IAI
Global Note (in the case of a transfer pursuant to clause (b)(1)(B)) or Regulation S
Global Note (in the case of a transfer pursuant to clause (b)(i)(C)) to reflect an
increase in the aggregate principal amount of the Notes represented by the Rule 144A
Global Note, IAI Global Note or Regulation S Global Note, as applicable, such
instructions to contain information regarding the Depository account to be credited
with such increase,









 



6



(iii) then the Trustee shall cancel such Definitive Note and cause, or direct
the Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Notes Custodian, the aggregate
principal amount of Notes represented by the Rule 144A Global Note, IAI Global Note
or Regulation S Global Note, as applicable, to be increased by the aggregate
principal amount of the Definitive Note to be exchanged and shall credit or cause to
be credited to the account of the Person specified in such instructions a beneficial
interest in the Rule 144A Global Note, IAI Global Note or Regulation S Global Note,
as applicable, equal to the principal amount of the Definitive Note so canceled. If
no Rule 144A Global Notes, IAI Global Notes or Regulation S Global Notes, as
applicable, are then outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officers’
Certificate of the Company, a new Rule 144A Global Note, IAI Global Note or
Regulation S Global Note, as applicable, in the appropriate principal amount.



          (c) Transfer and Exchange of Global Notes. (i) The transfer and exchange of Global
Notes or beneficial interests therein shall be effected through the Depository, in accordance with
this Indenture (including applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depository therefor. A transferor of a beneficial interest in a Global Note shall
deliver to the Registrar a written order given in accordance with the Depository’s procedures
containing information regarding the participant account of the Depository to be credited with a
beneficial interest in the Global Note. The Registrar shall, in accordance with such instructions
instruct the Depository to credit to the account of the Person specified in such instructions a
beneficial interest in the Global Note and to debit the account of the Person making the transfer
the beneficial interest in the Global Note being transferred.





     (ii) If the proposed transfer is a transfer of a beneficial interest in one
Global Note to a beneficial interest in another Global Note, the Registrar shall
reflect on its books and records the date and an increase in the principal amount of
the Global Note to which such interest is being transferred in an amount equal to
the principal amount of the interest to be so transferred, and the Registrar shall
reflect on its books and records the date and a corresponding decrease in the
principal amount of the Global Note from which such interest is being transferred.




     (iii) Notwithstanding any other provisions of this Appendix (other than the
provisions set forth in Section 2.4), a Global Note may not be transferred as a
whole except by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository.




     (iv) In the event that a Global Note is exchanged for Definitive Notes
pursuant to Section 2.4 of this Appendix, such Notes may be exchanged only in
accordance with such procedures as are substantially consistent with the provisions
of this Section 2.3 (including the certification requirements set forth on









 



7



the reverse of the Notes intended to ensure that such transfers comply with
Rule 144A, Regulation S or another applicable exemption under the Securities Act, as
the case may be) and such other procedures as may from time to time be adopted by
the Company.



          (d) Legend. (i) Except as permitted by the following paragraph (ii), each Note
certificate evidencing the Global Notes (and all Notes issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the following form:





THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE
“RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES AND IAI
NOTES: ONE YEAR] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE
ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (1) (a)
FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE UNDER RULE 144A, TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d)
TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (a) (1), (2), (3) OR (7)
OF THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO XM SATELLITE RADIO INC. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF XM SATELLITE
RADIO INC. SO REQUESTS), (2) TO XM









 



8



SATELLITE RADIO INC. OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.




Each Definitive Note shall also bear the following additional legend:




IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.




     (ii) Upon any sale or transfer of a Transfer Restricted Note (including any
Transfer Restricted Note represented by a Global Note) pursuant to Rule 144 under
the Securities Act, the Registrar shall permit the transferee thereof to exchange
such Transfer Restricted Note for a certificated Note that does not bear the legend
set forth above and rescind any restriction on the transfer of such Transfer
Restricted Note, if the transferor thereof certifies in writing to the Registrar
that such sale or transfer was made in reliance on Rule 144 (such certification to
be in the form set forth on the reverse of the Note).



          (e) Cancellation or Adjustment of Global Note. At such time as all beneficial
interests in a Global Note have either been exchanged for Definitive Notes, redeemed, purchased or
canceled, such Global Note shall be returned to the Depository for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for certificated Notes, redeemed, purchased or canceled, the principal
amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on
the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with
respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.




          (f) No Obligation of the Trustee.





     (i) The Trustee shall have no responsibility or obligation to any beneficial
owner of a Global Note, a member of, or a participant in the Depository or other
Person with respect to the accuracy of the records of the Depository or its nominee
or of any participant or member thereof, with respect to any ownership interest in
the Notes or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depository) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to such
Notes. All notices and communications to be given to the Holders and all payments to
be made to Holders under the Notes shall be given or made









 



9



only to or upon the order of the registered Holders (which shall be the
Depository or its nominee in the case of a Global Note). The rights of beneficial
owners in any Global Note shall be exercised only through the Depository subject to
the applicable rules and procedures of the Depository. The Trustee may conclusively
rely and shall be fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any beneficial owners.




     (ii) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in
any Note (including any transfers between or among Depository participants, members
or beneficial owners in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by, and
to do so if and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the express
requirements hereof.



          2.4. Definitive Notes.




          (a) A Global Note deposited with the Depository or with the Trustee as Notes Custodian for
the Depository pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the
form of Definitive Notes in an aggregate principal amount equal to the principal amount of such
Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.3
hereof and (i) the Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Note and the Depository fails to appoint a successor depository or if at
any time such Depository ceases to be a “clearing agency” registered under the Exchange Act, in
either case, and a successor depository is not appointed by the Company within 90 days of such
notice, or (ii) an Event of Default has occurred and is continuing or (iii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the issuance of Definitive
Notes under this Indenture.




          (b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this
Section 2.4 shall be surrendered by the Depository to the Trustee located at its principal
corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in
whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to
this Section 2.4 shall be executed, authenticated and delivered only in denominations of $2,000
principal amount and any integral multiple of $1,000 in excess of $2,000 and registered in such
names as the Depository shall direct. Any Definitive Note delivered in exchange for an interest in
the Transfer Restricted Note shall, except as otherwise provided by Section 2.3(e) hereof, bear the
applicable restricted securities legend and definitive securities legend set forth in Exhibit 1
hereto.




          (c) Subject to the provisions of Section 2.4(b) hereof, the registered Holder of a Global
Note shall be entitled to grant proxies and otherwise authorize any Person, including









 



10

Agent Members and Persons that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Notes.




          (d) In the event of the occurrence of one of the events specified in Section 2.4(a) hereof,
the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes in
definitive, fully registered form without interest coupons. In the event that such Definitive Notes
are not issued, the Company expressly acknowledges, with respect to the right of any Holder to
pursue a remedy pursuant to Section 6.06 of this Indenture, the right of any beneficial owner of
Notes to pursue such remedy with respect to the portion of the Global Note that represents such
beneficial owner’s Notes as if such Definitive Notes had been issued.

















 





EXHIBIT 1




to

RULE 144A/REGULATION S/IAI APPENDIX




[FORM OF FACE OF NOTE]




[Global Notes Legend]


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.




[Restricted Notes Legend]



THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN
THE CASE OF RULE 144A NOTES AND IAI NOTES: ONE YEAR] [IN THE CASE OF REGULATION S NOTES: 40 DAYS]
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY
(1) (a) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE UNDER RULE 144A, TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED












 



2



INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (a) (1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
“INSTITUTIONAL ACCREDITED INVESTOR”)) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO XM SATELLITE RADIO INC. THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF XM
SATELLITE RADIO INC. SO REQUESTS), (2) TO XM SATELLITE RADIO INC. OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.




[Definitive Notes Legend]



IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.














 



3




CUSIP No. (144A) 98375YAZ9; (Reg S) U98408AF1; (IAI) 98375YBA3

ISIN No. (144A) US98375YAZ97; (Reg S) USU98408AF16; (IAI) US98375YBA38




	 	 	 

	No.                    

	 	$                    






7.625% Senior Notes due 2018




          XM Satellite Radio Inc., a Delaware corporation, promises to pay to                     , or registered
assigns, the principal sum of                      Dollars on November 1, 2018.




          Interest Payment Dates: May 1 and November 1.




          Record Dates: [April 15 and October 15]* [the last Business Day prior to the
applicable interest payment date]**.




          Additional provisions of this Note are set forth on the other side of this Note.




Dated: October 27, 2010




	 	 	 	 	 
	 	XM SATELLITE RADIO INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



TRUSTEE’S CERTIFICATE OF

AUTHENTICATION




U.S. BANK NATIONAL ASSOCIATION




as Trustee, certifies that this is one of the

Notes referred to in the Indenture




Dated:




	 	 	 	 	 

	By
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Authorized Signatory	 	 








 




			
	*	 	Include for Definitive Notes.
	 
	**	 	Include for Global Notes.










 



4






[FORM OF REVERSE SIDE OF NOTE]

7.625% Senior Note due 2018




1. Interest




          XM Satellite Radio Inc., a Delaware corporation (such corporation and its successors and
assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises
to pay interest on the principal amount of this Note at the rate per annum shown above. The Company
will pay interest semiannually on May 1 and November 1 of each year, commencing May 1, 2011.
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if
no interest has been paid, from October 27, 2010. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company will pay interest on overdue principal at the
rate borne by this Note plus 1.0% per annum, and it will pay interest on overdue installments of
interest at the same rate to the extent lawful.




2. Maturity




          The Notes will mature on November 1, 2018.




3. Method of Payment




          The Company will pay interest on the Notes (except defaulted interest) to the Persons who are
registered holders of Notes at the close of business on the April 15 or October 15 next preceding
the interest payment date even if Notes are canceled after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United States that at the
time of payment is legal tender for payment of public and private debts. Payments in respect of the
Notes represented by a Global Note (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The Depository Trust Company.
The Company will make all payments in respect of a certificated Note (including principal, premium
and interest) at the office of the Paying Agent, except that, at the option of the Company, payment
of interest may be made by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on a certificated Note will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).




4. Paying Agent and Registrar




          Initially, U.S. Bank National Association, a New York banking corporation (the “Trustee”),
will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.




5. Indenture













 



5




          The Company issued the Notes under an Indenture dated as of October 27, 2010 (the
“Indenture”), among the Company, the Guarantors and the Trustee. The terms of the Notes include
those stated in the Indenture. Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and
Noteholders are referred to the Indenture for a statement of those terms.




          The Notes are general unsecured senior obligations of the Company. The Company shall be
entitled, subject to its compliance with Section 4.03 of the Indenture, to issue Additional Notes
pursuant to Section 2.13 of the Indenture. The Notes issued on the Issue Date and any Additional
Notes will be treated as a single class for all purposes under the Indenture. The Indenture
contains covenants that limit the ability of the Company and its subsidiaries to incur additional
indebtedness; pay dividends or distributions on, or redeem or repurchase capital stock; make
investments; issue or sell capital stock of subsidiaries; engage in transactions with affiliates;
create liens on assets; transfer or sell assets; guarantee indebtedness; restrict dividends or other
payments of subsidiaries; consolidate, merge or transfer all or substantially all of its assets and
the assets of its subsidiaries; change its business; and engage in sale/leaseback transactions.
These covenants are subject to important exceptions and qualifications.



6. Optional Redemption




     At any time prior to November 1, 2013, the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price
equal to 107.625% of the principal amount thereof, plus accrued and unpaid interest, if any, to the
redemption date (subject to the rights of Holders on the relevant record date to receive interest
on the relevant interest payment date), with the Net Cash Proceeds from the issuance or sale of
Capital Stock of the Company or a contribution to the Company’s common equity capital made with the
Net Cash Proceeds from a concurrent issuance or sale of Capital Stock by the Company’s direct or
indirect parent; provided that:




	 	(i)    at least 65% of the aggregate principal amount of Notes originally issued under the
Indenture (excluding Notes held by the Company and its Affiliates) remains outstanding
immediately after the occurrence of such redemption; and
	 
	 	(ii)    the redemption occurs within 45 days of the date of the closing of such issuance or
sale of Capital Stock.





     At any time prior to November 1, 2014, the Company, at its option, may redeem all, or from
time to time, any part of the Notes on not less than 30 days nor more than 60 days notice as
provided in the Indenture (except that, notwithstanding the provisions of Section 3.02 of the
Indenture, any notice of redemption for the Notes given pursuant to said Section need not set forth
the redemption price but only the manner of calculation thereof) at a Make Whole Redemption Price
equal to the greater of the following amounts:




	 	(i)	 	100% of the principal amount of the Notes then outstanding to be so redeemed; and










 




6


	 	(ii)    the present value of the sum of the redemption price of the Notes at November 1, 2014
(such redemption price being set forth in the table appearing below hereunder) and the
remaining scheduled payments of interest on the Notes to be redeemed, to, but excluding
November 1, 2014, discounted to the applicable redemption date in accordance with customary
market practice on a semi-annual basis at a rate equal to the sum of the Treasury Rate plus
0.50%




plus, in either of the above cases, accrued and unpaid, if any, on the principal amount being
redeemed to the applicable redemption date.




     The Make Whole Redemption Price for the Notes will be calculated by the Independent Investment
Banker assuming a 360-day year consisting of twelve 30-day months.



     For purposes of calculating the Make Whole Redemption Price pursuant to the foregoing optional
redemption provisions, the following terms will have the meanings set forth below.



     “Comparable Treasury Issue” means the U.S. Treasury security or securities selected by the
Independent Investment Banker as having an actual or interpolated maturity most nearly equal to the
period from the redemption date to November 1, 2014; provided, that if the period from the
redemption date to November 1, 2014 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will be used.



     “Comparable Treasury Price” means, with respect to any redemption date:




(i) the average of the Reference Treasury Dealer Quotations for that redemption date, after
excluding the highest and lowest of the Reference Treasury Dealer Quotations;




(ii) if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the
average of all Reference Treasury Dealer Quotations so received; or




(iii) if only one Reference Treasury Dealer Quotation is received, such quotation.



     “Independent Investment Banker” means one of the Reference Treasury Dealers selected by the
Company.



     “Reference Treasury Dealer” means each of four primary U.S. Government securities dealers in
New York City (each a “Primary Treasury Dealer”), consisting of (i) J.P. Morgan Securities LLC (or
its affiliate), and (ii) three other nationally recognized investment banking firms (or their
affiliates) that the Company selects in connection with the particular redemption, and their
respective successors, provided that if any of them ceases to be a Primary Treasury Dealer, the
Company will substitute another nationally recognized investment banking firm (or its affiliate)
that is a Primary Treasury Dealer.



     “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Independent Investment Banker, of the
bid and asked prices for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) quoted in writing to the Independent Investment Banker by









 



7


     such Reference Treasury Dealer at
3:30 p.m., New York City time, on the third Business Day preceding that redemption date.



     “Treasury Rate” means, with respect to any redemption date, the rate per year equal to the
semi-annual equivalent yield to maturity or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, calculated on the third Business Day preceding the applicable redemption
date, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for that redemption date.



     Except pursuant to this Section 6, the Notes shall not be redeemable at the Company’s option
prior to November 1, 2014.



     On or after November 1, 2014, the Company may on any one or more occasions redeem all or a
part of the Notes on not less than 30 days nor more than 60 days notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest
and additional interest, if any, on the Notes redeemed, to, but excluding, the applicable
redemption date, if redeemed during the twelve-month period beginning on November 1 of the years
indicated below, subject to the rights of Holders on the relevant record date to receive interest
and additional interest, if any, on the relevant interest payment date:



	 	 	 	 	 
	Year	 	Percentage
	2014
	 	 	103.813	%
	 
	 	 	 	 
	2015
	 	 	101.906	%
	 
	 	 	 	 
	2016 and thereafter
	 	 	100.000	%






     Unless the Company defaults in the payment of the applicable redemption price, on or after the
applicable redemption date, interest will cease to accrue on the Notes or portions of the Notes
called for redemption.



     If the optional redemption date is after an interest record date and on or before the related
interest payment date, the accrued and unpaid interest, if any, will be paid to the person in whose
name the Note is registered at the close of business, on such record date.



7. Notice of Redemption




          Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60
days before the redemption date to each Holder of Notes to be redeemed at his registered address.
Notes in denominations larger than $2,000 principal amount may be redeemed in part but only in
whole multiples of $1,000 in excess of $2,000. If money sufficient to pay the redemption price of
and accrued interest on all Notes (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption










 



8



date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.




8. Put Provisions




          Upon a Change of Control, any Holder of Notes will have the right to cause the Company to
repurchase all or any part of the Notes of such Holder at a repurchase price equal to 101% of the
principal amount of the Notes to be repurchased plus accrued and unpaid, if any, interest to the
date of repurchase (subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date) as provided in, and subject to the terms
of, the Indenture.




9. Denominations; Transfer; Exchange




          The Notes are in registered form without coupons in denominations of $2,000 principal amount
and any integral multiple of $1,000 in excess of $2,000. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part,
the portion of the Note not to be redeemed) or any Notes for a period of 15 days before a selection
of Notes to be redeemed or 15 days before an interest payment date.




10. Persons Deemed Owners




          The registered Holder of this Note may be treated as the owner of it for all purposes.




11. Unclaimed Money




          If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look only
to the Company and not to the Trustee for payment.




12. Discharge and Defeasance




          Subject to certain conditions, the Company at any time shall be entitled to terminate some or
all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of principal and interest on the Notes to
redemption or maturity, as the case may be.



13. Amendment; Waiver




          Subject to certain exceptions set forth in the Indenture, (a) the Indenture and the Notes may
be amended with the written consent of the Holders of at least a majority in principal










 



9



amount
outstanding of the Notes (including consents obtained in connection with a tender offer or exchange
offer for the Notes) and (b) any past default or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount outstanding of the Notes
(including consents obtained in connection with a tender offer or exchange offer for the Notes).
Subject to certain exceptions set forth in the Indenture, without the consent of any Noteholder,
the Company, and the Trustee shall be entitled to amend the Indenture or the Notes to cure any
ambiguity, omission, defect or inconsistency, or to comply with Article 5 of the Indenture, or to
provide for uncertificated Notes in addition to or in place of certificated Notes, or to add
guarantees with respect to the Notes, or to add additional covenants or surrender rights and powers conferred on the Company, or to
comply with any requirement of the SEC in connection with qualifying the Indenture under the Act,
or to make any change that does not adversely affect the rights of any Noteholder, or to make
amendments to provisions of the Indenture relating to the transfer and legending of the Notes.



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 or purchase Notes when required; (c) failure by the Company to comply with other agreements
in the Indenture or the Notes, in certain cases subject to notice and lapse of time; (d) certain
accelerations (including failure to pay within any grace period after final maturity) of other
Indebtedness of the Company if the amount accelerated (or so unpaid) exceeds $25 million; (e)
certain events of bankruptcy or insolvency with respect to the Company and the Significant
Subsidiaries; and (f) certain judgments or decrees for the payment of money in excess of $25
million. 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.




          Noteholders may not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or
security satisfactory to it. Subject to certain limitations, Holders of a majority in principal
amount of the Notes may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in the interest of the Holders.



15. Trustee Dealings with the Company




          Subject to certain limitations imposed by the Act, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal
with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were not Trustee.



16. No Recourse Against Others











 



10




          A director, officer, employee, incorporator or stockholder, as such, of the Company, any of
its Restricted Subsidiaries, Sirius XM Radio Inc. or the Trustee shall not have any liability for
any obligations of the Company under the Notes or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a Note, each Noteholder
waives and releases all such liability. The waiver and release are part of the consideration for
the issue of the Notes.



17. Authentication




          This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the other side of this
Note.



18. Abbreviations




          Customary abbreviations may be used in the name of a Noteholder or an assignee, such as TEN
COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights
of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).



19. CUSIP Numbers




          Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification
Procedures the Company has caused CUSIP numbers to be printed on the Notes and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to Noteholders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification numbers placed
thereon.



20. Governing Law




THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.




          The Company will furnish to any Noteholder upon written request and without charge to the Note
holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may
be made to:



XM Satellite Radio Inc.

1221 Avenue of the Americas, 36th Floor

New York, NY 10020

Attention: Patrick L. Donnelly, Secretary



 

ASSIGNMENT FORM




          To assign this Note, fill in the form below:









 



11



          I or we assign and transfer this Note to:




 





(Print or type assignee’s name, address and zip code)




 





(Print or type assignee’s name, address and zip code)




(Insert assignee’s soc. sec. or tax I.D. No.)




          and irrevocably appoint            agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him.




	 	 	 	 	 	 	 

	 
	 

	 	 	 	Your	 	 
	Date:

	 	 	 	Signature:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 




Sign exactly as your name appears on the other side of this Note.




OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.06
(Asset Sale) or 4.10 (Change of Control) of the Indenture, check the box:




Asset Sale
           
     Change of Control
           





          If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.06 or 4.10 of the Indenture, state the amount in principal amount:




$                                                            




	 	 	 	 	 	 	 

	 
	 

	 	 	 	Your	 	 
	Dated:

	 	 	 	Signature:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Sign exactly as your name appears
on the other side of this Note.)






	 	 	 

	Signature Guarantee:
	 	 
	 

	 	 
	 

	 	(Signature must be guaranteed)






          Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Note Transfer Agent
Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with the Notes Exchange
Act of 1934, as amended.

















 





EXHIBIT 2 to Rule 144A/REGULATION S/IAI APPENDIX




Form of

Transferee Letter of Representation



XM Satellite Radio Inc.

1221 Avenue of the Americas, 36th Floor

New York, NY 10020

Attention: Patrick L. Donnelly, Secretary




In care of

U.S. Bank Corporate Trust Services

100 Wall Street, Suite 1600

New York, NY 10005

Attention: Thomas E. Tabor




Ladies and Gentlemen:




          This certificate is delivered to request a transfer of $[ ] principal amount of the 7.625%
Senior Notes due 2018 (the “Notes”) of XM Satellite Radio Inc. (the “Company”).




          Upon transfer, the Notes would be registered in the name of the new beneficial owner as
follows:




Name:________________________

Address:______________________

Taxpayer ID Number:___________




          The undersigned represents and warrants to you that:




          1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own
account or for the account of such an institutional “accredited investor” at least $250,000
principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we invest in or purchase securities similar to
the Notes in the normal course of our business. We, and any accounts for which we are acting, are
each able to bear the economic risk of our or its investment.




          2. We understand that the Notes have not been registered under the Securities Act and, unless
so registered, may not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date that is one year after the later of the date of
original issue and the last date on which the Company or any affiliate of the Company was the owner
of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only (i) to
the Company, (ii) in the United States to a person whom the seller reasonably believes is a
qualified institutional buyer in a transaction meeting the requirements of




 









 





2



Rule 144A, (iii) to an institutional “accredited investor” within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is an institutional accredited investor
purchasing for its own account or for the account of an institutional accredited investor, in each
case in a minimum principal amount of the Notes of $250,000, (iv) outside the United States in a
transaction complying with the provisions of Rule 904 under the Securities Act, (v) pursuant to an
exemption from registration under the Securities Act provided by Rule 144 (if available) or (vi)
pursuant to an effective registration statement under the Securities Act, in each of cases (i)
through (vi) subject to any requirement of law that the disposition of our property or the property
of such investor account or accounts be at all times within our or their control and in compliance
with any applicable state securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Notes
is proposed to be made pursuant to clause (iii) above prior to the Resale Restriction Termination
Date, the transferor shall deliver a letter from the transferee substantially in the form of this
letter to the Company and the Trustee, which shall provide, among other things, that the transferee
is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Notes for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and
the Trustee reserve the right prior to the offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Notes pursuant to clause (iii), (iv) or (v) above to require
the delivery of an opinion of counsel, certifications or other information satisfactory to the
Company and the Trustee.




	 	 	 

	 

	 	TRANSFEREE                                        
	 

	 	By:                                                            






 









 






EXHIBIT 2




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




     SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of  , 20_, among  (the “Guarantor”),
[a subsidiary of] XM Satellite Radio Inc. (or its permitted successor), a Delaware corporation (the
“Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and
U.S. Bank National Association, as trustee under the Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of October 27, 2010 providing for the issuance of 7.625% Senior Notes due
2018 (the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guarantor will execute
and deliver to the Trustee a supplemental indenture pursuant to which the Guarantor will
unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the
terms and conditions set forth herein (the “Note Guarantee”); and



     WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders as follows:



     1. CAPITALIZED TERMS. Capitalized terms used herein without definition will have the meanings
assigned to them in the Indenture.



     2. AGREEMENT TO GUARANTEE. The Guarantor hereby agrees to provide an unconditional Guarantee
on the terms and subject to the conditions set forth in this Note Guarantee and in the Indenture
including but not limited to Article 10 thereof [Add the following if the Material Subsidiary is
the FCC License Subsidiary: ; provided, however, that the Guarantor is providing such Guarantee
only to the extent permitted under applicable law, rules or regulations, including rules and
regulations of the Federal Communications Commission].



     4. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guarantor, as such, will have any liability for any
obligations of the Company or any Guarantor under the Notes, any Note Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for issuance of the
Notes.



 









 





     5. GOVERNING LAW. This Supplemental Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.



     6. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy will be an original, but all of them together represent the same agreement.



     7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and will not
affect the construction hereof.



     8. THE TRUSTEE. The Trustee will not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guarantor and the Company.



     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed all as of the date first above written.



     Dated:                     , 20___.



	 	 	 	 	 	 	 

	 	 	[GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[COMPANY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[EXISTING GUARANTORS]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,
as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title: