Indenture (Supplemental) - Sirius Satellite Radio Inc. and The Bank of New York
EXECUTION COPY
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is made as
of the 7th day of March 2003, between Sirius satellite radio inc., (formerly
known as CD Radio Inc.) (the "Company") and The Bank of New York (successor to
United States Trust Company of New York), as trustee (the "Trustee").
WHEREAS, the Company and the Trustee are parties to an indenture, dated
as of May 15, 1999 (the "Indenture");
WHEREAS, pursuant to the Indenture, the Company has issued the 14 1/2%
Senior Secured Notes due 2009 (the "Securities");
WHEREAS, Section 9.02 of the Indenture provides that with the consent
of the Holders of not less than a majority in principal amount of the
outstanding Securities, by act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a resolution of the Board of Directors,
and the Trustee may amend the Indenture;
WHEREAS, the Company has heretofore delivered or is delivering
contemporaneously herewith to the Trustee a copy of the Officers' Certificate of
the Company authorizing the execution, delivery and performance of this
Supplemental Indenture; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Supplemental Indenture and to make this Supplemental Indenture
valid and binding have been complied with or have been done or performed;
NOW, THEREFORE, in consideration of the foregoing and notwithstanding
any provision of the Indenture which, absent this Supplemental Indenture, might
operate to limit such action, the Company and the Trustee agree as follows for
the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS
Section 1.01 General. For all purposes of the Indenture and this
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the words "herein", "hereof' and "hereunder" and other
words of similar import refer to the Indenture and this
Supplemental Indenture as a whole and not to any particular
Article, Section or subdivision; and
(b) capitalized terms used but not defined herein shall have
the meanings assigned to them in the Indenture.
ARTICLE II
AMENDMENTS
Section 2.01 Amendments. The Indenture is hereby amended in the
following respects:
(a) Section 1.01 is hereby amended by deleting the references
to Section 10.16 in the definition of "Asset Sale" and
replacing them with Section "10.08".
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(b) Section 1.01 is hereby amended by deleting the words
"Section 10.11 and Section 10.12 and" from the second to
last sentence of the definition of "Indebtedness".
(c) Section 1.01 is hereby amended by deleting the words "as
referred to under Section 10.12" from clause (2) of the
definition of "Net Cash Proceeds".
(d) Section 1.01 is hereby amended by deleting the references
to Sections 10.10 and 10.16 in the definition of
"Redeemable Capital Stock" and replacing them with Sections
"10.07" and "10.08", respectively.
(e) Section 1.01 is hereby amended by deleting the words
"permitted by clause (b) of the definition of Permitted
Liens" from the definition of "Secured Debt".
(f) Section 1.01 is hereby amended by deleting the words
"permitted by clause (b) of the definition of Permitted
Liens" from the definition of "Secured Party".
(g) Section 1.01 is hereby amended by deleting the words "and
the Company could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section
10.11" from the last sentence of the definition of
"Unrestricted Subsidiary".
(h) Section 1.02 is hereby amended by deleting the words
"(other than pursuant to Section 10.08(a))" from the first
sentence of the second paragraph therein.
(i) Section 3.01 is hereby amended by deleting the references
to Sections 10.10 and 10.16 therein and replacing them with
Sections "10.07" and "10.08", respectively.
(j) Section 3.05 is hereby amended by deleting the references
to Sections 10.10 and 10.16 therein and replacing them with
Sections "10.07" and "10.08", respectively.
(k) Section 5.01 is hereby amended by deleting the references
to Sections 10.10 and 10.16 in clause (3) thereof and
replacing them with Sections "10.07" and "10.08",
respectively.
(l) Section 8.01 is hereby amended by deleting clause (iii)
thereof in its entirety.
Section 8.01 is further amended by deleting clause (iv)
thereof in its entirety.
Section 8.01 is further amended by adding the word "and" at
the end of clause (ii) and renumbering clause (v) as (iii).
(m) Section 8.03 is hereby amended by deleting the clause
"unless such Lien could be created pursuant to Section
10.15 without equally and ratably securing the Notes,".
(n) Section 9.02 is hereby amended by deleting the reference to
Section 10.18 in clause (iii) thereof and replacing it with
Section "10.09".
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(o) Section 10.05 is hereby deleted in its entirety.
(p) Section 10.06 is hereby amended by renumbering such Section
as 10.05.
Section 10.06 is further amended by deleting the reference
to Section 10.06 therein and replacing it with Section
"10.05".
(q) Section 10.07 is hereby deleted in its entirety.
(r) Section 10.08 is hereby deleted in its entirety.
(s) Section 10.09 is hereby amended by renumbering such Section
as 10.06.
(t) Section 10.10 is hereby amended by renumbering such Section
as 10.07.
Section 10.10 is further amended by deleting the references
to Section 10.10 therein and replacing them with Section
"10.07".
(u) Section 10.11 is hereby deleted in its entirety.
(v) Section 10.12 is hereby deleted in its entirety.
(w) Section 10.13 is hereby deleted in its entirety.
(x) Section 10.14 is hereby deleted in its entirety.
(y) Section 10.15 is hereby deleted in its entirety.
(z) Section 10.16 is hereby amended by renumbering such section
as 10.08.
Section 10.16 is further amended by deleting the reference
to Section 10.16 therein and replacing it with Section
"10.08".
(aa) Section 10.17 is hereby deleted in its entirety.
(bb) Section 10.18 is hereby amended by renumbering such Section
as 10.09.
Section 10.18 is further amended by deleting the words
"Section 8.03, Sections 10.07 or 10.09 through 10.17"
therein and replacing them with "Section 8.03 and Sections
10.06 through 10.08".
(cc) Section 10.19 is hereby amended by renumbering such Section
as 10.10.
(dd) Section 10.20 is hereby amended by renumbering such Section
as 10.11.
(ee) Section 10.21 is hereby deleted in its entirety.
(ff) Section 10.22 is hereby amended by renumbering such Section
as 10.12.
(gg) Section 13.03 is hereby amended by deleting the reference
to "Sections 10.07 through 10.17" therein and replacing it
with "Sections 10.06 through 10.08."
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(hh) Exhibit 1 - Form of Face of Initial Note is hereby amended
by deleting the references to Sections 10.10 and 10.16
therein and replacing them with Sections "10.07" and
"10.08", respectively.
(ii) Exhibit A - Form of Face of Exchange Note is hereby amended
by deleting the references to Sections 10.10 and 10.16
therein and replacing them with Sections "10.07" and
"10.08", respectively.
(jj) Defined Terms; Related Amendments. Any and all defined
terms used solely in the sections, subsections,
subparagraphs or provisions of the Indenture deleted by
Sections 2.01 (m), (o), (q) through (r), (u) through (y),
(aa), and (ee) of this Supplemental Indenture are also
hereby deleted. Any provisions contained in the Securities
that relate to any sections of the Indenture that are
amended by this Supplemental Indenture shall be likewise
amended so that any such provisions contained in the
Securities will conform to and be consistent with such
amended provisions of the Indenture.
ARTICLE III
WAIVERS
Section 3.01 Waiver of Defaults and Events of Default. The Company
represents and warrants to the Trustee that Holders of the Securities issued
under the Indenture have irrevocably and unconditionally waived, in accordance
with the terms of the Indenture, (1) any failure by the Company to comply with
any term, covenant, provision or condition of the Indenture and (2) any defaults
and events of default under the Indenture (other than, with respect to those
Holders of the Securities who have not waived their right to receive the payment
of such interest, interest payment defaults, which unwaived interest payment
defaults the Company shall remedy within 10 days after the date hereof), in
existence at the time of the filing of the Registration Statement on Form S-4
(File No. 333-101317), as amended (the "Registration Statement"), including
those arising from representations and warranties made or affirmed in connection
with the delivery of compliance certificates, whether or not such defaults and
events of default are related to the restructuring (as described in the
Registration Statement) or caused by the recapitalization plan (as described in
the Registration Statement).
ARTICLE IV
MISCELLANEOUS
Section 4.01 Effectiveness. This Supplemental Indenture shall become
effective upon its execution and delivery by the Company and the Trustee. Upon
the execution and delivery of this Supplemental Indenture by the Company and the
Trustee, the Indenture shall be supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder of Securities heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby.
Section 4.02 Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 4.03 Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
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Section 4.04 Confirmation and Preservation of Indenture. The Indenture
as supplemented by this Supplemental Indenture is in all respects confirmed and
preserved.
Section 4.05 Conflict with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision of
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), that is
required under the Trust Indenture Act to be part of and govern any provision of
this Supplemental Indenture, the provision of the Trust Indenture Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of the Trust Indenture Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this Supplemental Indenture, as
the case may be.
Section 4.06 Severability. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 4.07 Headings. The Article and Section headings of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 4.08 Benefits of Supplemental Indenture, etc. Nothing in this
Supplemental Indenture or the Securities, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of the Securities, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Securities.
Section 4.09 Successors. All agreements of the Company in this
Supplemental Indenture shall bind its successors. All agreements of the Trustee
in this Supplemental Indenture shall bind its successors.
Section 4.10 Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company and the Trustee
assumes no responsibility for their correctness. The Trustee shall not be liable
or responsible for the validity or sufficiency of this Supplemental Indenture.
Section 4.11 Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability or affording protection to the Trustee, whether or not elsewhere
herein so provided.
Section 4.12 Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS SUPPLEMENTAL INDENTURE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS, WHICH WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
Section 4.13 Counterpart Originals. The Company and the Trustee may
sign any number of copies of this Supplemental Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date and year first above written.
SIRIUS SATELLITE RADIO INC.
By: /s/ Patrick Donnelly
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Name: Patrick Donnelly
Title: Executive Vice President, General
Counsel and Secretary
THE BANK OF NEW YORK as Trustee
By: /s/ Patricia Gallagher
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Name: Patricia Gallagher
Title: Vice President
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