EXECUTION VERSION
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XM Satellite Radio Inc.
12% SENIOR SECURED NOTES DUE 2010
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INDENTURE
Dated as of June 17, 2003
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The Bank of New York
Trustee
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CROSS-REFERENCE TABLE*
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TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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310(a)(1)................................................................. 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 7.10
(b).................................................................... 7.10
(c).................................................................... N.A.
311(a).................................................................... 7.11
(b).................................................................... 7.11
(c).................................................................... N.A.
312(a).................................................................... 2.05
(b).................................................................... 13.03
(c).................................................................... 13.03
313(a).................................................................... 7.06
(b)(1)................................................................. 10.03
(b)(2)................................................................. 7.07
(c).................................................................... 7.06;13.02
(d).................................................................... 7.06
314(a).................................................................... 4.03;13.02
(b).................................................................... 10.02
(c)(1)................................................................. 13.04
(c)(2)................................................................. 13.04
(c)(3)................................................................. N.A.
(d).................................................................... 10.03, 10.04, 10.05
(e).................................................................... 13.05
(f).................................................................... N.A.
315(a).................................................................... 7.01
(b).................................................................... 7.05,13.02
(c).................................................................... 7.01
(d).................................................................... 7.01
(e).................................................................... 6.11
316(a) (last sentence).................................................... 2.09
(a)(1)(A).............................................................. 6.05
(a)(1)(B).............................................................. 6.04
(a)(2)................................................................. N.A.
(b).................................................................... 6.07
(c).................................................................... 2.12
317(a)(1)................................................................. 6.08
(a)(2)................................................................. 6.09
(b).................................................................... 2.04
318(a).................................................................... 13.01
(b).................................................................... N.A.
(c).................................................................... 13.01
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N.A. means not applicable.
* This Cross Reference Table is not part of this Indenture.
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TABLE OF CONTENTS
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ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions...................................................................................1
Section 1.02. Other Definitions............................................................................21
Section 1.03. Incorporation by Reference of Trust Indenture Act............................................22
Section 1.04. Rules of Construction........................................................................22
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating..............................................................................23
Section 2.02. Execution and Authentication.................................................................23
Section 2.03. Registrar and Paying Agent...................................................................24
Section 2.04. Paying Agent to Hold Money in Trust..........................................................24
Section 2.05. Holder Lists.................................................................................24
Section 2.06. Transfer and Exchange........................................................................24
Section 2.07. Replacement Notes............................................................................35
Section 2.08. Outstanding Notes............................................................................35
Section 2.09. Treasury Notes...............................................................................36
Section 2.10. Temporary Notes..............................................................................36
Section 2.11. Cancellation.................................................................................36
Section 2.12. Defaulted Interest...........................................................................36
Section 2.13. CUSIP Numbers................................................................................36
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee...........................................................................37
Section 3.02. Selection of Notes to Be Redeemed............................................................37
Section 3.03. Notice of Redemption.........................................................................37
Section 3.04. Effect of Notice of Redemption...............................................................38
Section 3.05. Deposit of Redemption Price..................................................................38
Section 3.06. Notes Redeemed in Part.......................................................................39
Section 3.07. Optional Redemption..........................................................................39
Section 3.08. Mandatory Redemption.........................................................................39
Section 3.09. Offer to Purchase by Application of Excess Proceeds..........................................39
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.............................................................................41
Section 4.02. Maintenance of Office or Agency..............................................................41
Section 4.03. Reports......................................................................................42
Section 4.04. Compliance Certificate.......................................................................42
Section 4.05. Taxes........................................................................................43
Section 4.06. Stay, Extension and Usury Laws...............................................................43
Section 4.07. Restricted Payments..........................................................................43
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries....................46
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Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock...................................47
Section 4.10. Asset Sales..................................................................................49
Section 4.11. Transactions with Affiliates.................................................................51
Section 4.12. Liens........................................................................................52
Section 4.13. Corporate Existence..........................................................................52
Section 4.14. Offer to Repurchase Upon Change of Control...................................................52
Section 4.15. Sale and Leaseback Transactions..............................................................53
Section 4.16. Limitation on Issuances and Sales of Equity Interests in Restricted Subsidiaries.............53
Section 4.17. Payments for Consent.........................................................................54
Section 4.18. Insurance....................................................................................54
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.....................................................55
Section 5.02. Successor Corporation Substituted............................................................55
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default and Remedies...............................................................56
Section 6.02. Acceleration.................................................................................57
Section 6.03. Other Remedies...............................................................................58
Section 6.04. Waiver of Past Defaults......................................................................58
Section 6.05. Control by Majority..........................................................................59
Section 6.06. Limitation on Suits..........................................................................59
Section 6.07. Rights of Holders of Notes to Receive Payment................................................59
Section 6.08. Collection Suit by Trustee...................................................................59
Section 6.09. Trustee May File Proofs of Claim.............................................................60
Section 6.10. Priorities...................................................................................60
Section 6.11. Undertaking for Costs........................................................................60
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee............................................................................61
Section 7.02. Rights of Trustee............................................................................62
Section 7.03. Individual Rights of Trustee.................................................................63
Section 7.04. Trustee's Disclaimer.........................................................................63
Section 7.05. Notice of Defaults...........................................................................63
Section 7.06. Reports by Trustee to Holders of the Notes...................................................63
Section 7.07. Compensation and Indemnity...................................................................63
Section 7.08. Replacement of Trustee.......................................................................64
Section 7.09. Successor Trustee by Merger, etc.............................................................65
Section 7.10. Eligibility; Disqualification................................................................65
Section 7.11. Preferential Collection of Claims Against Company............................................65
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.....................................65
Section 8.02. Legal Defeasance and Discharge...............................................................66
Section 8.03. Covenant Defeasance..........................................................................66
Section 8.04. Conditions to Legal or Covenant Defeasance...................................................66
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Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions...................................................................................68
Section 8.06. Repayment to Company.........................................................................68
Section 8.07. Reinstatement................................................................................69
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes..........................................................69
Section 9.02. With Consent of Holders of Notes.............................................................70
Section 9.03. Compliance with Trust Indenture Act..........................................................71
Section 9.04. Revocation and Effect of Consents............................................................71
Section 9.05. Notation on or Exchange of Notes.............................................................72
Section 9.06. Trustee to Sign Amendments, etc..............................................................72
ARTICLE 10.
SECURITY AGREEMENTS
Section 10.01. Security Agreements .........................................................................72
Section 10.02. Recording and Opinions.......................................................................73
Section 10.03. Release of Collateral........................................................................73
Section 10.04. Certificates of the Company..................................................................74
Section 10.05. Certificates of the Trustee..................................................................74
Section 10.06. Authorization of Actions to Be Taken by the Trustee Under the Security Agreement.............74
Section 10.07. Authorization of Receipt of Funds by the Trustee Under the Pledge Agreement..................75
Section 10.08. Termination of Security Interest.............................................................75
ARTICLE 11.
INDENTURE GUARANTEES
Section 11.01. Indenture Guarantees ........................................................................75
Section 11.02. Execution and Delivery of Indenture Guarantees...............................................76
Section 11.03. Subsidiary Guarantors may Consolidate, Etc. on Certain Terms.................................77
Section 11.04. Releases Following Sale of Assets............................................................78
Section 11.05. Addition of Subsidiary Guarantors............................................................78
Section 11.06. Limitation of Parent Guarantor's and Subsidiary Guarantor's Liability........................78
Section 11.07. Application of Certain Terms and Provisions to the Parent Guarantor and the Subsidiary
Guarantors...................................................................................79
ARTICLE 12.
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge...................................................................79
Section 12.02. Application of Trust Money...................................................................80
ARTICLE 13.
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.................................................................80
Section 13.02. Notices......................................................................................81
Section 13.03. Communication by Holders of Notes with Other Holders of Notes................................82
Section 13.04. Certificate and Opinion as to Conditions Precedent...........................................82
Section 13.05. Statements Required in Certificate or Opinion................................................82
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Section 13.06. Rules by Trustee and Agents..................................................................83
Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders.....................83
Section 13.08. Governing Law................................................................................83
Section 13.09. No Adverse Interpretation of Other Agreements................................................83
Section 13.10. Successors...................................................................................83
Section 13.11. Severability.................................................................................84
Section 13.12. Counterpart Originals........................................................................84
Section 13.13. Table of Contents, Headings, etc.............................................................84
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EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
Exhibit E FORM OF GENERAL SECURITY AGREEMENT
Exhibit F FORM OF FCC LICENSE SUBSIDIARY PLEDGE AGREEMENT
Exhibit G FORM OF INDENTURE GUARANTEE
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INDENTURE dated as of June 17, 2003 between XM Satellite Radio Inc., a
Delaware corporation (the "COMPANY"), the Parent Guarantor (as defined herein),
each of the Subsidiary Guarantors (as defined herein) made a party hereto
pursuant to Section 11.05 hereof and The Bank of New York, as trustee (the
"TRUSTEE").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Company's 12%
Senior Secured Notes due 2010 (the "NOTES"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL NOTE" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"ACQUIRED DEBT" means, with respect to any specified Person (x)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person or (y)
Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person, provided that, in each case, such Indebtedness or Lien, as applicable,
is not incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Subsidiary of, such specified Person.
"ADDITIONAL NOTES" means additional Notes (other than the Initial Notes)
issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as
part of the same series as the Initial Notes.
"ADJUSTED CONSOLIDATED OPERATING CASH FLOW" means Consolidated Operating
Cash Flow for the latest four fiscal quarters for which consolidated financial
statements of the Company are available, taken as a whole. For purposes of
calculating Consolidated Operating Cash Flow for any four fiscal quarter period
for purposes of this definition, (1) all Restricted Subsidiaries of the Company
on the date of the transaction giving rise to the need to calculate Adjusted
Consolidated Operating Cash Flow (the "Transaction Date") shall be deemed to
have been Restricted Subsidiaries at all times during such four fiscal quarter
period and (2) any Unrestricted Subsidiary on the Transaction Date shall be
deemed to have been an Unrestricted Subsidiary at all times during such four
fiscal quarter period.
In addition, for purposes of calculating Adjusted Consolidated Operating
Cash Flow:
(1) acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the calculation
date shall be given pro forma effect as if they had occurred on the first day of
the four-quarter reference period and Adjusted Consolidated Operating Cash Flow
for such reference period shall be calculated on a pro forma basis but without
giving effect to clause (3) of the proviso set forth in the definition of
Consolidated Net Income; and
(2) the Consolidated Operating Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the calculation date, shall be excluded.
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"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 purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; PROVIDED that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any assets;
PROVIDED that the sale, conveyance or other disposition of all or substantially
all of the assets of the Company and its Restricted Subsidiaries taken as a
whole will be governed by the provisions of Sections 4.14 and 5.01 of this
Indenture and not by the provisions of Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries.
Notwithstanding the preceding, the following items shall not be deemed
to be Asset Sales:
(1) any single transaction or series of related transactions that
involves assets having a fair market value or that involve net proceeds of less
than $1.0 million;
(2) a transfer of assets between or among the Company and its Wholly
Owned Restricted Subsidiaries (other than XM Leasing);
(3) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary;
(4) the sale or lease of equipment, inventory, accounts receivable
or other assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) a Restricted Payment or Permitted Investment that is permitted
by Section 4.07 hereof;
(7) any issuance or sale of Equity Interests of an Unrestricted
Subsidiary; and
(8) any Qualified Sale and Leaseback Transaction.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value
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shall be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors of the
corporation;
(2) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and
(3) with respect to any other Person, the board or committee of such
Person serving a similar function.
"BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors or a committee of the Board of Directors in the case of Holdings,
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted and to be in full force and effect on the date of such
certification.
"BROKER-DEALER" has the meaning set forth in the Registration Rights
Agreement.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CASH EQUIVALENTS" means:
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(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof (PROVIDED
that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than six months from the date of
acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any domestic commercial bank having capital and
surplus in excess of $500.0 million;
(4) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications specified
in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from Moody's Investors Service, Inc. or Standard & Poor's Rating
Services and in each case maturing within six months after the date of
acquisition; and
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through (5) of
this definition.
"CLEARSTREAM" means Citibank, N.A., as operator of Clearstream.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) 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 to any "person"
(as that term is used in Section 13(d)(3) of the Exchange Act) other than a
Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as that term is used in Section 13(d)(3) of the Exchange Act), other
than the Principals and their Related Parties, becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of Holdings or the
Company, measured by voting power rather than number of shares;
(4) the first day on which a majority of the members of the Board of
Directors of the Company or Holdings are not Continuing Directors; or
(5) the first day on which the Company ceases to be a Wholly Owned
Restricted Subsidiary of Holdings.
Notwithstanding the foregoing, neither the January 2003 Financing
Transactions nor a Parent Company Merger shall constitute a Change of Control.
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"COLLATERAL" means (1) the Collateral (as defined in the General
Security Agreement), and (2) the Collateral (as defined in the FCC License
Subsidiary Pledge Agreement).
"COLLATERAL AGENT" means the Collateral Agent under the applicable
Intercreditor Agreement.
"COMPANY" means XM Satellite Radio Inc. and any and all successors
thereto.
"CONSOLIDATED NET INCOME" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Wholly Owned Restricted
Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded to
the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded; and
(4) the cumulative effect of a change in accounting principles shall
be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any specified Person as
of any date, the sum of:
(1) the consolidated equity of the common stockholders of such
Person and its consolidated Restricted Subsidiaries as of such date; plus
(2) the respective amounts reported on such Person's balance sheet
as of such date with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to the
extent of any cash received by such Person upon issuance of such preferred
stock.
"CONSOLIDATED OPERATING CASH FLOW" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period PLUS:
(1) an amount equal to any extraordinary loss plus any net loss
realized by such Person or any of its Restricted Subsidiaries in connection with
an Asset Sale, to the extent such losses were deducted in computing such
Consolidated Net Income; PLUS
(2) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income; PLUS
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(3) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, 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), to the extent that any such expense
was deducted in computing such Consolidated Net Income; PLUS
(4) depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net Income; MINUS
(5) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of business, in
each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other non-cash
expenses of, a Restricted Subsidiary of the Company shall be added to
Consolidated Net Income to compute Consolidated Operating Cash Flow of the
Company only to the extent that a corresponding amount would be permitted at the
date of determination to be dividended to the Company by such Restricted
Subsidiary without prior governmental approval (that has not been obtained), and
without direct or indirect restriction pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date hereof; 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.
"CORE XM RADIO ASSETS" means XM Radio Assets reasonably necessary to
operate the XM Radio Business.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"CUMULATIVE AVAILABLE CASH FLOW" means, as at any date of determination,
the positive cumulative Consolidated Operating Cash Flow realized during the
period commencing on the beginning of the first fiscal quarter following the
date hereof and ending on the last day of the most recent fiscal quarter
immediately preceding the date of determination for which consolidated financial
information of the Company is available or, if such cumulative Consolidated
Operating Cash Flow for such period is negative, the negative amount by which
cumulative Consolidated Operating Cash Flow is less than zero.
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"CUSTODIAN" means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.07 of
this Indenture.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the Euroclear
system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in the
Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries in existence on the date hereof, including the
Indebtedness incurred or to be incurred pursuant to the January 2003 Financing
Transactions, until such amounts are repaid.
"FCC LICENSE SUBSIDIARY" means XM Radio Inc., a wholly owned subsidiary
of the Company that owns all of the Company's FCC licenses to provide satellite
digital radio service in the United States.
"FCC LICENSE SUBSIDIARY PLEDGE AGREEMENT" means the Amended and Restated
Security Agreement, dated as of January 28, 2003, between the Company and the
Collateral Agent, providing for
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the pledge of the Capital Stock of FCC License Subsidiary as security for the
Notes and certain other Indebtedness.
"FCC LICENSE SUBSIDIARY PLEDGE INTERCREDITOR AGREEMENT" means the
Intercreditor and Collateral Agency Agreement (FCC License Subsidiary Pledge
Agreement), dated as of January 28, 2003, pursuant to which the collateral agent
thereunder is appointed on behalf of the various secured creditor parties to
serve as Collateral Agent under the FCC License Subsidiary Pledge Agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"GENERAL SECURITY INTERCREDITOR AGREEMENT" means the Intercreditor and
Collateral Agency Agreement (General Security Agreement), dated as of January
28, 2003, pursuant to which the collateral agent thereunder is appointed on
behalf of the various secured creditor parties to serve as collateral agent
under the General Security Agreement.
"GENERAL SECURITY AGREEMENT" means the Security Agreement, dated as of
January 28, 2003, (as amended) among the Company, the Parent Guarantor, the
Collateral Agent and the other parties thereto, providing for a grant of a
security interest in certain assets of the Company as security for the Notes and
certain other indebtedness.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"GUARANTEE" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"GUARANTORS" means the Parent Guarantor and the Subsidiary Guarantors.
"HEDGING OBLIGATIONS" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency values.
"HOLDER" means a Person in whose name a Note is registered.
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"HOLDINGS" means XM Satellite Radio Holdings Inc. and any and all
successors thereto.
"HUGHES REPEATER CONTRACT" means the Contract for the Design,
Development and Purchase of Terrestrial Repeater Equipment by and between the
Company and Hughes Electronics Corporation, dated February 14, 2000 as amended
from time to time provided that such amendments, taken as a whole, shall not be
materially adverse to the Company.
"HUGHES REPEATER ESCROW AGREEMENT" means the agreement between the
Company and Hughes Electronics Corporation, dated as of March 2, 2000, providing
for the escrow of funds payable under the Hughes Repeater Contract.
"HUGHES SATELLITE AGREEMENT" means the Satellite Purchase Agreement
between the Company and Hughes Space and Communications Inc., dated July 21,
1999, as in effect on the date hereof and as it may be amended from time to time
in any respect other than with respect to the terms or scope of the security
interest granted by the Company thereunder.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) banker's acceptances;
(4) representing Capital Lease Obligations;
(5) the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade
payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of the specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" shall include (a) all Indebtedness of others secured by a Lien on
any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person), (b) to the extent not otherwise included, the
Guarantee by the specified Person of any indebtedness of any other Person and
(c) all Attributable Debt of such Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
(2) the principal amount thereof, together with any interest thereon
that is more than 30 days past due, in the case of any other Indebtedness.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
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"INDENTURE GUARANTEES" means the Guarantee of the Parent Guarantor and
of the Subsidiary Guarantors pursuant to the terms hereof and substantially in
the form set out in Exhibit G hereto, and "Indenture Guarantee" means any of
them.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in
a Global Note through a Participant.
"INITIAL NOTES" means the first $175,000,000 aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"INTERCREDITOR AGREEMENTS" means the General Security Intercreditor
Agreement and the FCC License Subsidiary Pledge Intercreditor Agreement.
"INVESTMENTS" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the form
of loans (including Guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers,
directors and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the
fair market value of the Equity Interests of such Restricted Subsidiary not sold
or disposed of in an amount determined as provided in the final paragraph of
Section 4.07 hereof. The acquisition by the Company or any Restricted Subsidiary
of the Company of a Person that holds an Investment in a third Person shall be
deemed to be an Investment by the Company or such Restricted Subsidiary in such
third Person in an amount equal to the fair market value of the Investment held
by the acquired Person in such third Person determined as provided in the final
paragraph of Section 4.07 hereof.
"JANUARY 2003 FINANCING TRANSACTIONS" means (1) the issuance to General
Motors Corporation or affiliates thereof (collectively, "GM") of the Company's
and Holdings' Series GM Senior Secured Convertible Note due 2009 (the "GM Note")
in the principal amount of $89,042,387 in lieu of certain guaranteed payments
due to GM during the period from 2003 to 2006 under the Company's Distribution
Agreement with GM (the "Distribution Agreement"), (2) the amendment of the
Distribution Agreement to provide for, among other things, the issuance of the
GM Notes and the payment of up to $35,000,000 in subscriber acquisition payments
in the form of Class A Common Stock of Holdings (the "Class A Common Stock"),
(3) the issuance of the Company's and Holdings' 10% Senior Secured Discount
Convertible Notes due 2009 and common stock to certain investors, (4) the
Company's and Holdings' $100,000,000 Senior Secured Credit Facility with GM to
finance certain revenue share payments owed to GM under the Distribution
Agreement or other amounts which may be owing from time to time to GM, (5) the
issuance of a warrant to GM to purchase 10,000,000 shares of Class A Common
Stock at an exercise price of $3.18 per share, (6) the issuance and sale to U.S.
Trust Company of 5,555,556 shares of Class A Common Stock and the issuance of a
warrant to R. Steven Hicks to purchase 900,000 shares of Class A Common Stock at
an exercise price of $3.18 per share in accordance with Section 4(2) of the
Securities Act, and (7) the execution, delivery and performance of all
agreements, documents and instruments evidencing the transactions described in
clauses (1) through (6) above and all arrangements contemplated thereby, in each
case as reflected in such agreements, documents and instruments as in
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effect on the date of the indenture with such amendments that do not (w) have a
materially adverse effect on the rights of the trustee or the Holders of the
Notes under the Notes, the Indenture Guarantees, the Security Agreements or the
Intercreditor Agreements, taken as a whole (x) increase the principal amount (or
accreted value, as applicable) or shorten the fixed maturity of any
Indebtedness, or advance the dates or reduce the price with respect to the
redemption of the Indebtedness, or (y) increase the rate or change the time of
payment of interest, including default interest, on any Indebtedness.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"LIQUIDATED DAMAGES" means all liquidated damages then owing pursuant to
Section 5 of the Registration Rights Agreement.
"MATERIAL SUBSIDIARY" means, a Restricted Subsidiary (other than XM
Equipment Leasing LLC) that has Guaranteed any Indebtedness or other Obligation
of the Company or any Restricted Subsidiary represented by clauses (1) or (3) of
the definition of the "January 2003 Transactions."
"NET INCOME" means, with respect to any specified Person, the net income
(loss) of such Person and its Restricted Subsidiaries, determined in accordance
with GAAP and before any reduction in respect of preferred stock dividends,
excluding, however:
(1) any gain or loss, together with any related provision for taxes
on such gain or loss, realized in connection with: (a) any Asset Sale; or (b)
the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any related
provision for taxes on such extraordinary gain or loss.
"NET PROCEEDS" means the aggregate cash proceeds received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale or other
transaction (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale), net
of the direct costs relating to such Asset Sale or other transaction, including,
without limitation, legal, accounting and investment banking fees, and sales
commissions, and any relocation expenses incurred as a result thereof, taxes
paid or payable as a result thereof, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets that were the subject of
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such Asset Sale or other transaction and any reserve for adjustment in respect
of the sale price of such asset or assets established in accordance with GAAP.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness) or (b) is directly
or indirectly liable as a guarantor or otherwise;
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder of any
other Indebtedness of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity; and
(3) as to which the definitive documentation therefor specifies that
the lenders thereunder will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" means any of the securities, as defined in the first paragraph
of the recitals hereof, that are authenticated and delivered under this
Indenture. For all purposes of this Indenture, the term "Notes" shall include
the Notes initially issued on the date hereof, any Exchange Notes to be issued
and exchanged for any Notes pursuant to the Registration Rights Agreement and
this Indenture and any Additional Notes issued after the date hereof under this
Indenture, unless the context otherwise requires. For purposes of this
Indenture, all Notes shall vote together as one series of Notes under this
Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, that meets the requirements of Section 12.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
13.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"PARENT COMPANY MERGER" means (a) a merger or consolidation of the
Company with or into Holdings or a merger or consolidation of Holdings with or
into the Company or (b) any assignment, transfer, conveyance or other
disposition of all or substantially all of the properties or assets of the
Company to Holdings or of Holdings to the Company.
"PARENT GUARANTOR" means Holdings, in its capacity as a guarantor of the
Obligations under the Notes pursuant to Article 11.
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"PARI PASSU INDEBTEDNESS" means Indebtedness of the Company that is pari
passu in right of payment to the Notes or, in the case of a Subsidiary
Guarantor, that is pari passu in right of payment to its Indenture Guarantee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"PERMITTED BUSINESS" means any of the lines of business conducted by the
Company and its Restricted Subsidiaries on the date hereof and any business
similar, ancillary or related thereto or that constitutes a reasonable extension
or expansion thereof, including in connection with the Company's existing and
future technology, trademarks and patents.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Company or in a Wholly Owned Restricted
Subsidiary of the Company (other than XM Leasing);
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment:
(a) such Person becomes a Wholly Owned Restricted Subsidiary of the
Company; or
(b) such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Wholly Owned Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.10;
(5) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company;
(6) Hedging Obligations;
(7) Investments in existence on the date hereof and modifications
thereof;
(8) Investments in securities of trade creditors or customers
received in compromise of obligations of such Person incurred in the ordinary
course of business, including under any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such Person;
(9) loans and advances to officers, directors and employees of the
Company or any of its Restricted Subsidiaries in the ordinary course of business
not to exceed $2.0 million at any time outstanding;
(10) Investments indirectly acquired by the Company or any of its
Restricted Subsidiaries through a direct Investment in another Person made in
compliance with this Indenture, provided that such Investments existed prior to
and were not made in contemplation of such acquisition;
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(11) Investments in a joint venture with Sirius Satellite Radio Inc.
or an Affiliate or successor thereof, the proceeds of which Investments are used
solely to develop interoperable radio technology capable of receiving and
processing radio system signals broadcast by both the Company and Sirius
Satellite Radio Inc., for the licensing of other satellite radio technology from
the Company and Sirius Satellite Radio Inc. in connection therewith and for
activities reasonably ancillary thereto in accordance with the Joint Development
Agreement between the Company and Sirius Satellite Radio Inc., as in effect on
the date hereof or as it may be amended in a manner not materially adverse to
the Company;
(12) from and after any Parent Company Merger, Investments of
Holdings in existence on the date hereof;
(13) other Investments in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (13) since the date hereof that are at
the time outstanding not to exceed $10.0 million; and
(14) Investments in XM Leasing when taken together with all amounts
permitted by Clause (15) of the second paragraph of Section 4.09 not exceeding
$5.0 million outstanding at any time.
"PERMITTED LIENS" means:
(1) Liens on any assets of the Company or its Restricted
Subsidiaries securing Pari Passu Indebtedness incurred pursuant to clause (1) of
the second paragraph of Section 4.09 hereof or Permitted Refinancing
Indebtedness in respect thereof; provided, that the Notes shall be equally and
ratably secured by such assets;
(2) Liens in favor of the Company;
(3) Liens on property, or on shares of stock or Indebtedness, of a
Person existing at the time such Person is merged with or into or consolidated
with the Company or any Restricted Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company or the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary of the Company, PROVIDED that such
Liens were not incurred in contemplation of such acquisition;
(5) Liens to secure the performance of bids, tenders, leases,
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (6) of the second paragraph of Section 4.09
hereof covering only the assets acquired with such Indebtedness;
(7) Liens existing on the date hereof (including Liens arising
hereunder in favor of the Trustee and including Liens under the Hughes Repeater
Escrow Agreement) and Liens securing Indebtedness incurred pursuant to the
January 2003 Financing Transactions;
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(8) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(9) Liens securing the Notes;
(10) Liens incidental to the conduct of the Company's or a Restricted
Subsidiary's business or the ownership of its property and assets not securing
Indebtedness, and which do not in the aggregate materially detract from the
value of the assets or property of the Company and its Restricted Subsidiaries
taken as a whole, or materially impair the use thereof in the operation of its
business;
(11) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security;
(12) judgment Liens not giving rise to an Event of Default;
(13) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company or any
of its Restricted Subsidiaries;
(14) any interest or title of a lessor under any Capital Lease
Obligation;
(15) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its Restricted
Subsidiaries;
(16) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(17) Liens in favor of customs and revenue authorities arising as a
mater of law to secure payment of customer duties in connection with the
importation of goods;
(18) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business that are not delinquent or remain payable without penalty;
(19) Liens securing Hedging Obligations which Hedging Obligations
relate to Indebtedness that is otherwise permitted under this Indenture;
(20) Liens encumbering property or other assets under construction in
the ordinary course of business arising from progress or partial payments by a
customer of the Company or its Restricted Subsidiaries relating to such property
or other assets;
(21) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business;
(22) Liens on the Company's interests in satellites and its
terrestrial repeater network, including the Hughes Satellite Agreement,
subsequent satellite procurement or launch contracts and the Hughes Repeater
Contract;
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(23) Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary with respect to obligations that do not exceed
$10.0 million at any one time outstanding; and
(24) Liens on Qualified Receivables securing Indebtedness permitted
by clause (xii) of the second paragraph of Section 4.09 hereof;
(25) from and after any Parent Company Merger, Liens of Holdings in
existence on the date hereof;
(26) Liens relating to Satellite Vendor Indebtedness incurred
pursuant to Clause (i) of the second paragraph of Section 4.09 or Permitted
Refinancing Indebtedness in respect thereof;
(27) Liens securing Indebtedness permitted under Clause (vii) of the
second paragraph of Section 4.09; provided that such Liens are no more extensive
than the liens securing the Indebtedness so refunded, refinanced or replaced
thereby;
(28) Liens on the assets of the Company or any Restricted
Subsidiaries (other than XM Leasing) securing indebtedness incurred in any
Qualified Sale and Leaseback Transaction; and
(29) Liens on the assets of XM Leasing securing Indebtedness
permitted under Clause (xv) of the second paragraph of Section 4.09.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); PROVIDED that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest thereon and
the amount of all expenses, consent fees and premiums incurred in connection
therewith);
(2) (A) if such Permitted Refinancing Indebtedness has a Weighted
Average Life to Maturity shorter than that of the Notes or a final maturity date
earlier than the final maturity date of the Notes, such Permitted Refinancing
Indebtedness shall have a Weighted Average Life to Maturity no shorter than the
remaining Weighted Average Life to Maturity of the debt so extended, refinanced,
renewed, replaced, defeased or refunded and a final Stated Maturity no earlier
than the final maturity date of the debt so extended, refinanced, renewed,
replaced, defeased or refunded or (B) in all other cases, such Permitted
Refinancing Indebtedness shall have a final maturity date later than the final
maturity date of, and shall have a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Notes;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness is subordinated in right of payment to,
the Notes on terms at least as favorable to the Holders of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
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"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"PRINCIPALS" means American Honda Motor Company, Inc., General Motors
Corporation, DIRECTV Enterprises, Inc. and Clear Channel Investments, Inc.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUALIFIED RECEIVABLES" means the aggregate amount of accounts
receivables of the Company determined in accordance with GAAP that are not more
than 90 days past due.
"QUALIFIED SALE AND LEASEBACK TRANSACTION" means a sale and leaseback
transaction (1) involving one or more satellites of the Company or any
Restricted Subsidiary of the Company (other than XM Leasing) and (2) the Net
Proceeds of which, together with the aggregate Net Proceeds from all other sale
and leaseback transactions involving satellites consummated after the date
hereof (including any subsequent replacements, amendments or modifications
thereof), do not exceed $150,000,000.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of June 17, 2003, by and among the Company and the other parties named
on the signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or
more registration rights agreements between the Company and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Company to the purchasers of Additional
Notes to register such Additional Notes under the Securities Act.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means a global note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"RELATED PARTY" means:
(1) any controlling stockholder, 80% (or more) owned Subsidiary, or
immediate family member (in the case of an individual) of any Principal; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of any one or more Principals
and/or such other Persons referred to in the immediately preceding clause (1).
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the Private
Placement Legend.
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"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED INVESTMENT" means any Investment other than a Permitted
Investment.
"RESTRICTED PERIOD" means the 40-day distribution compliance period as
defined in Regulation S.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SATELLITE VENDOR INDEBTEDNESS" means Indebtedness of the Company
provided by a satellite or satellite launch vendor or Affiliate thereof for 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 radio service as a replacement for a satellite that is retired,
relocated within the existing service area or reasonably determined by the
Company to no longer meet the requirements for such service, or (ii) a ground
spare intended for future use as the same.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY AGREEMENTS" means the General Security Agreement and the FCC
License Subsidiary Pledge Agreement.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBSCRIBER" means 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.
"SUBSIDIARY" means, with respect to any specified Person:
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(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and
(2) any partnership, trust or limited liability company (a) the sole
general partner, the managing general partner, or the sole manager or trustee of
which is such Person or a Subsidiary of such Person or (b) the only general
partners or managing members of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"SUBSIDIARY GUARANTOR" means any Restricted Subsidiary of the Company
that has executed an Indenture Guarantee and the General Security Agreement.
"TAX SHARING AGREEMENT" means the tax sharing agreement dated March 15,
2000 between Holdings, the Company and XM Radio Inc., as in effect on the date
hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA, except as provided in Section 9.03 hereof.
"TOTAL CONSOLIDATED INDEBTEDNESS" means, at any date of determination,
an amount equal to the aggregate amount of all Indebtedness of the Company and
the Restricted Subsidiaries, determined on a consolidated basis in accordance
with GAAP, outstanding as of the date of determination.
"TOTAL INCREMENTAL EQUITY" means, at any date of determination, the sum
of, without duplication: (1) the aggregate cash proceeds received by the Company
since January 29, 2003 from the issuance or sale of Capital Stock of the Company
(other than Disqualified Stock but including Capital Stock issued upon the
conversion of convertible Indebtedness or from the exercise of options, warrants
or rights to purchase Capital Stock of the Company other than Disqualified
Stock), or of contributions to the equity capital of the Company by Holdings or
the fair market value of the consideration (if other than cash) from the
issuance or sale of Equity Interests (other than Disqualified Stock) of the
Company or of actual or deemed capital contributions to the common equity
capital of the Company by Holdings from the issuance of Equity Interests of
Holdings in exchange for the retirement of Pari Passu Indebtedness of the
Company since January 29, 2003, to any Person other than a Restricted
Subsidiary; plus (2) an amount equal to the sum of (a) the net reduction in
Investments in any Person (other than Permitted Investments) resulting from the
payment in cash of dividends, repayments of loans or advances or other transfers
of assets, in each case to the Company or any Restricted Subsidiary after the
date of Issuance of the Initial Notes from such Person and (b) the portion
(proportionate to the Company's equity interest in such Restricted Subsidiary)
of the fair market value of the net assets of any Unrestricted Subsidiary at the
time such Unrestricted Subsidiary is designated a Restricted Subsidiary;
provided, however, that in the case of (a) or (b) above, the foregoing sum shall
not exceed the amount of Investments previously made (and treated as a
Restricted Payment) by the Company or any Restricted Subsidiary in such Person
or Unrestricted Subsidiary and that constitutes a Restricted Payment that has
been deducted from Total Incremental Equity pursuant to clause (3) below; minus
(3) the aggregate amount of all Restricted Payments declared or made on or after
the date of Issuance of the Initial Notes (including the aggregate amount paid
pursuant to clauses (1), (2), (3), (4), (5), (6) and (8) of the second paragraph
of Section 4.07).
"TRUSTEE" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
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"UNRESTRICTED GLOBAL NOTE" means a permanent global Note substantially
in the form of Exhibit A attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company (other
than the FCC License Subsidiary) that is designated by the Board of Directors as
an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the
extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company;
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.07 hereof. If, at any time,
any Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as
if such designation had occurred at the beginning of the four-quarter reference
period; and (2) no Default or Event of Default would be in existence following
such designation.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness or Disqualified Stock at any date, the number of years obtained by
dividing:
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(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal (or liquidation preference, as applicable),
including payment at final maturity, in respect thereof, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by
(2) the then outstanding principal amount (or liquidation
preference) of such Indebtedness (or Disqualified Stock, as applicable).
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any specified Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
"XM LEASING" means XM Equipment Leasing LLC, a Delaware limited
liability company, and any and all of the Company's Subsidiary successors
thereto, for so long as XM Leasing is not a Subsidiary Guarantor and is a
guarantor of, or provides security for, other Indebtedness of the Company and/or
its Restricted Subsidiaries represented by clauses (1) or (3) of the definition
of the "January 2003 Transactions;" provided, that after XM Leasing ceases to
satisfy these criteria all references to XM Leasing shall be deemed deleted and
of no further force or effect.
"XM RADIO ASSETS" means all assets, rights, services and properties,
whether tangible or intangible, used or intended for use in connection with an
XM Radio Business, including satellites, terrestrial repeating stations, FCC
licenses, uplink facilities, musical libraries and other recorded programming,
furniture, fixtures and equipment and telemetry, tracking, monitoring and
control equipment.
"XM RADIO BUSINESS" means the business of transmitting digital radio
programming throughout the United States by satellite and terrestrial repeating
stations to be received by subscribers, including any business in which the
Company was engaged on the date hereof, and any business reasonably related
thereto.
"XM RADIO SERVICE" means digital radio programming transmitted by
satellites and terrestrial repeating stations to vehicle, home and portable
radios in the United States.
SECTION 1.02. OTHER DEFINITIONS.
<Table>
<Caption>
Defined in
Term Section
---- -------
<S> <C>
"AFFILIATE TRANSACTION"................................. 4.11
"ASSET SALE OFFER"...................................... 3.09
"AUTHENTICATION ORDER".................................. 2.02
"BANKRUPTCY LAW"........................................ 4.01
"BENEFITED PARTY"....................................... 11.01
"CHANGE OF CONTROL OFFER"............................... 4.14
"CHANGE OF CONTROL PAYMENT"............................. 4.14
"CHANGE OF CONTROL PAYMENT DATE"........................ 4.14
"COVENANT DEFEASANCE"................................... 8.03
"EVENT OF DEFAULT"...................................... 6.01
"EXCESS PROCEEDS"....................................... 4.10
</Table>
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<Table>
<Caption>
Defined in
Term Section
---- -------
<S> <C>
"INCUR"................................................. 4.09
"LEGAL DEFEASANCE"...................................... 8.02
"OFFER AMOUNT".......................................... 3.09
"OFFER PERIOD".......................................... 3.09
"PAYING AGENT".......................................... 2.03
"PERMITTED DEBT"........................................ 4.09
"PURCHASE DATE"......................................... 3.09
"REGISTRAR"............................................. 2.03
"RESTRICTED PAYMENTS"................................... 4.07
</Table>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes means the Company and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
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ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) GLOBAL NOTES. Notes issued in global form shall be substantially
in the form of Exhibit A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or facsimile
signature. The Company's seal shall be reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "AUTHENTICATION ORDER"), authenticate Notes for original issue up
to the aggregate principal amount stated in paragraph 4 of the Notes.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. 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 an Agent to deal with Holders or an
Affiliate of the Company.
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SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company, the Parent Guarantor or
any Subsidiary Guarantor in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) shall have no further liability for
the money. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
SECTION 2.05. HOLDER 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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
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 the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
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Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
NOTE. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; PROVIDED, HOWEVER, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation S
Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL
INTERESTS IN GLOBAL NOTES. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
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(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Global Note, then
the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof;
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the
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Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for
a Restricted Definitive Note or to transfer such beneficial interest to
a Person who takes delivery thereof in the form of a Restricted
Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
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(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Note in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to
a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note
that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the
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Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive Note,
then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(iii) shall be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii)
shall not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable;
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(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, and the 144A Global Note, in the case of clause (C)
above.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the
Securities Act.
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Upon satisfaction of the conditions of any of the subparagraphs
in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive
Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange
or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.