Indenture (Second Supplemental) - Sirius Satellite Radio Inc., The Bank of New York and HSBC Bank USA
SECOND SUPPLEMENTAL INDENTURE
Second Supplemental Indenture, dated as of March 4, 2003, (this
"Supplemental Indenture"), by and among SIRIUS SATELLITE RADIO INC. (formerly
known as CD RADIO INC.), a corporation duly organized and existing under the
laws of the State of Delaware, having its principal office at 1221 Avenue of the
Americas, 36th Floor, New York, NY 10036 (the "Company"), THE BANK OF NEW YORK
(successor to U.S. Trust Company of Texas, N.A.), a banking corporation duly
organized and existing under the laws of the State of New York, having its
principal corporate trust office at 101 Barclay Street, 8W, New York, New York
10286, as resigning Trustee (the "Resigning Trustee"), and HSBC BANK USA, a
banking corporation and trust company duly organized and existing under the laws
of the State of New York, having its corporate trust office at 10 East 40th
Street, 14th Floor, New York, New York 10016, as successor Trustee (the
"Successor Trustee").
RECITALS
WHEREAS, there is currently authorized and outstanding $16,461,000 in
aggregate principal amount of the Company's 8 3/4% Convertible Subordinated
Notes due 2009 (the "Subordinated Notes") under an Indenture, dated as of
September 29, 1999; and a First Supplemental Indenture, dated as of September
29, 1999 (the "Subordinated Notes Indenture"), between the Company and the
Resigning Trustee, as trustee;
WHEREAS, Section 6.9(b) of the Subordinated Notes Indenture provides
that the Trustee may resign at any time by giving notice of such resignation to
the Company;
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WHEREAS, Section 6.9(e) of the Subordinated Notes Indenture provides
that, if the Trustee shall resign, the Company shall promptly appoint a
successor Trustee;
WHEREAS, Section 6.10 of the Subordinated Notes Indenture provides
that any successor trustee appointed in accordance with the Subordinated Notes
Indenture shall deliver to the Company and to the retiring Trustee a written
acceptance of such appointment under the Subordinated Notes Indenture, and
thereupon the resignation of the retiring Trustee shall become effective and
such successor Trustee shall become vested with all rights, powers and duties of
the Trustee under the Subordinated Notes Indenture;
WHEREAS, Section 6.10 of the Subordinated Notes Indenture provides
that the retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee;
WHEREAS, the Resigning Trustee desires to resign as Trustee, Registrar
and Paying Agent under the Subordinated Notes Indenture;
WHEREAS, the Company desires to appoint the Successor Trustee as
Trustee, Registrar and Paying Agent to succeed the Resigning Trustee under the
Subordinated Notes Indenture; and
WHEREAS, the Successor Trustee is willing to accept such appointment
as Trustee, Registrar and Paying Agent under the Subordinated Notes Indenture;
NOW, THEREFORE, the Company, the Resigning Trustee and the Successor
Trustee, for and in consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby consent and agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
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Section 101. Pursuant to Section 6.9(b) of the Subordinated Notes
Indenture, the Resigning Trustee hereby notifies the Company that the Resigning
Trustee is hereby resigning as Trustee under the Subordinated Notes Indenture.
The Company hereby waives the 30 day notice requirement set forth in Section
6.9(b) of the Subordinated Notes Indenture.
Section 102. The Resigning Trustee hereby represents and warrants to
the Successor Trustee and the Company that:
(a) No covenant or condition contained in the Subordinated Notes
Indenture has been waived by the Resigning Trustee or, to the
best of the knowledge of the responsible officers of the
Resigning Trustee's corporate trust group, by the Holders of the
percentage in aggregate principal amount of the Notes required by
the Subordinated Notes Indenture to effect any such waiver.
(b) There is no action, suit or proceeding pending or, to the best of
the knowledge of the responsible officers of the Resigning
Trustee's corporate trust group, threatened against the Resigning
Trustee before any court or any governmental authority arising
out of any action or omission by the Resigning Trustee as
Trustee, Registrar or Paying Agent under the Subordinated Notes
Indenture.
(c) As of March 3, 2003, the Resigning Trustee holds no property
under the Subordinated Notes Indenture.
(d) $16,461,000 in aggregate principal amount of the Subordinated
Notes is outstanding as of March 3, 2003 and interest has been
paid on the Subordinated Notes through March 29, 2002.
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(e) This Supplemental Indenture has been duly authorized, executed
and delivered on behalf of the Resigning Trustee and constitutes
a legal, valid and binding obligation of the Resigning Trustee.
(f) To the best of the knowledge of the responsible officers of the
Resigning Trustee's corporate trust group, except for the default
in the payment of the installment of interest which was due and
payable September 29, 2002 with respect to the Subordinated
Notes, no event has occurred and is continuing which is, or after
notice or lapse of time, or both, would become, an Event of
Default under Section 5.1 of the Subordinated Notes Indenture.
(g) The Subordinated Notes Indenture has not been amended or
modified.
Section 103. The Resigning Trustee hereby assigns, transfers, delivers
and confirms to the Successor Trustee all right, title and interest of the
Resigning Trustee in and to the trust under the Subordinated Notes Indenture and
all the rights, powers and duties of the Resigning Trustee as Trustee under the
Subordinated Notes Indenture and all property held by such Resigning Trustee
under the Indenture. The Resigning Trustee shall execute and deliver such
further instruments and shall do such other things as the Successor Trustee may
request so as to more fully and certainly vest and confirm in the Successor
Trustee all the rights, powers and duties hereby assigned, transferred,
delivered and confirmed to the Successor Trustee as Trustee under the
Subordinated Notes Indenture.
Section 104. The Resigning Trustee hereby also resigns as Registrar
and Paying Agent under the Subordinated Notes Indenture.
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Section 105. The Resigning Trustee shall deliver to the Successor
Trustee, as of or immediately after the effective date hereof, all property held
by it as Trustee under the Subordinated Notes Indenture and all of the documents
listed on Exhibit A hereto.
ARTICLE TWO
THE COMPANY
Section 201. The Company hereby certifies that Exhibit C annexed
hereto is a copy of the resolutions which were duly adopted by the Board of
Directors of the Company, which are in full force and effect on the date hereof,
and which authorize officers of the Company to : (a) accept the Resigning
Trustee's resignation as Trustee, Registrar and Paying Agent under the
Subordinated Notes Indenture; (b) appoint the Successor Trustee as Trustee,
Registrar and Paying Agent under the Subordinated Notes Indenture; and (c)
execute and deliver such agreements and other instruments as may be necessary or
desirable to effectuate the succession of the Successor Trustee as Trustee,
Registrar and Paying Agent under the Subordinated Notes Indenture.
Section 202. The Company hereby accepts the resignation of the
Resigning Trustee as Trustee, Registrar and Paying Agent under the Subordinated
Notes Indenture. Pursuant to Section 6.9 of the Subordinated Notes Indenture,
the Company hereby appoints the Successor Trustee as Trustee under the
Subordinated Notes Indenture to succeed to, and hereby vests the Successor
Trustee with, all the rights, powers and duties of the Resigning Trustee under
the Subordinated Notes Indenture with like effect as if originally named as
Trustee under the Subordinated Notes Indenture.
Section 203. The Company hereby represents and warrants to the
Resigning Trustee and the Successor Trustee that:
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(a) The Company is a corporation duly and validly organized and
existing pursuant to the laws of the State of Delaware.
(b) The Subordinated Notes Indenture, when executed and delivered,
was validly and lawfully executed and delivered by the Company,
and the Subordinated Notes, are validly issued securities of the
Company.
(c) Except for the default in the payment of the installment of
interest which was due and payable September 29, 2002 with
respect to the Subordinated Notes, no event has occurred and is
continuing which is, or after notice or lapse of time, or both,
would become, an Event of Default under Section 5.1 of the
Subordinated Notes Indenture.
(d) There is no action, suit or proceeding pending or, to the best of
the Company's knowledge, threatened against the Company before
any court or any governmental authority arising out of any action
or omission by the Company under the Subordinated Notes
Indenture.
(e) This Supplemental Indenture has been duly authorized, executed
and delivered on behalf of the Company and constitutes a legal,
valid and binding obligation of the Company.
(f) The Subordinated Notes Indenture has not been amended or
modified.
(g) All conditions precedent relating to the appointment of HSBC Bank
USA, as successor Trustee, Registrar and Paying Agent under the
Subordinated Notes Indenture have been complied with by the
Company.
Section 204. The Company hereby appoints the Successor Trustee as
Registrar and Paying Agent under the Subordinated Notes Indenture.
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ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to
the Resigning Trustee and to the Company that:
(a) The Successor Trustee is qualified and eligible under the
provisions of Section 6.8 of the Subordinated Notes Indenture to
act as Trustee under the Subordinated Notes Indenture.
(b) This Supplemental Indenture has been duly authorized, executed
and delivered on behalf of the Successor Trustee and constitutes
a legal, valid and binding obligation of the Successor Trustee.
Section 302. The Successor Trustee hereby accepts its appointment as
successor Trustee under the Subordinated Notes Indenture and accepts the rights,
powers and duties of the Resigning Trustee as Trustee under the Subordinated
Notes Indenture, upon the terms and conditions set forth therein, with like
effect as if originally named as Trustee under the Subordinated Notes Indenture.
Section 303. References in the Subordinated Notes Indenture to
"corporate trust office" or other similar terms shall be deemed to refer to the
corporate trust office of the Successor Trustee at 10 East 40th Street, 14th
Floor, New York, New York 10016 (mailing address: 452 Fifth Avenue, New York,
New York 10018, Attention: Issuer Services) or any other office of the Successor
Trustee at which, at any particular time, its corporate trust business shall be
administered.
Section 304. The Successor Trustee hereby accepts its appointment as
Registrar and Paying Agent under the Subordinated Notes Indenture.
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Section 305. Promptly after the date of this Supplemental Indenture,
the Successor Trustee shall cause notices, substantially in the form of Exhibit
B annexed hereto, to be sent to each Holder of the Subordinated Notes in
accordance with the provisions of Section 6.9(f) of the Subordinated Notes
Indenture.
ARTICLE FOUR
MISCELLANEOUS
Section 401. Except as otherwise expressly provided herein or unless
the context otherwise requires, all capitalized terms used herein which are
defined in the Subordinated Notes Indenture shall have the meaning assigned to
them in the Subordinated Notes Indenture.
Section 402. This Supplemental Indenture and the resignation,
appointment and acceptance effected hereby shall be effective as of the close of
business on the date first set forth herein above; provided that the resignation
of the Resigning Trustee and the appointment of the Successor Trustee as
Registrar and Paying Agent under the Subordinated Notes Indenture shall be
effective on the date first above written.
Section 403. Notwithstanding the resignation of the Resigning Trustee
effected hereby, the Company shall remain obligated under Section 6.7 of the
Subordinated Notes Indenture to compensate, reimburse and indemnify the
Resigning Trustee in connection with its prior trusteeship under the
Subordinated Notes Indenture. The Company also acknowledges its obligations to
the Successor Trustee as set forth in Section 6.7 of the Subordinated Notes
Indenture, which obligations shall survive the execution hereof.
Section 404. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the jurisdiction which governs the
Subordinated Notes Indenture.
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Section 405. This Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 406. The Company, the Resigning Trustee and the Successor
Trustee hereby acknowledge receipt of an executed counterpart of this
Supplemental Indenture and the effectiveness hereof.
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IN WITNESS WHEREOF, the parties hereby have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
SIRIUS SATELLITE RADIO INC.
By: /s/ Patrick L. Donnelly
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Name: Patrick L. Donnelly
Title: Executive Vice President,
General Counsel and Secretary
THE BANK OF NEW YORK, as Resigning Trustee
By: /s/ Michele Russo
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Name: Michele Russo
Title: Assistant Vice President
HSBC BANK USA, as Successor Trustee
By: /s/ Robert A. Conrad
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Name: Robert A. Conrad
Title: Vice President
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EXHIBIT A
Documents to be delivered to the Successor Trustee
1. Executed copies of the Subordinated Notes Indenture.
2. Conformed copies of the Subordinated Notes Indenture.
3. Files of closing documents.
4. Copies of the most recent of each of the SEC reports delivered by the
Company pursuant to the Subordinated Notes Indenture.
5. Copies of the most recent Compliance Certificates delivered pursuant to the
Subordinated Notes Indenture.
6. Copies of any official notices sent by the Trustee to all the Holders of
the Subordinated Notes pursuant to the terms of the Subordinated Notes
Indenture during the past twelve months and a copy of the most recent
Trustee's Annual Report to Holders, if any.
7. Certified Lists of Holders as of the date of this Supplemental Indenture,
certificate detail and all "stop transfers" and the reason for such "stop
transfers" (or, alternatively, if there are a substantial number of
registered Holders, the computer tape reflecting the identity, address, tax
identification number and detailed holdings of each such Holder).
8. Securities debt service records.
9. Trust account statements for a one-year period preceding the date of this
Supplemental Indenture.
10. All unissued Subordinated Notes inventory or DTC FAST held global
certificates.
11. Such other documents as the Successor Trustee may reasonably require in
order to transfer the appointment to it.
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EXHIBIT B
[HSBC LETTERHEAD]
NOTICE
To the Holders of Sirius Satellite Radio Inc.'s, (formerly CD Radio Inc.) (the
"Company") 83/4% Convertible Subordinated Notes due 2009:
NOTICE IS HEREBY GIVEN, pursuant to Section 6.9 (b) of the Indenture, as amended
(the "Indenture"), dated as of September 29, 1999, between the Company and The
Bank of New York (successor to U.S. Trust Company of Texas, N.A.), as trustee,
that The Bank of New York has resigned as Trustee under the Indenture.
Pursuant to Sections 6.9 and 6.10 of the Indenture, the Company has appointed
HSBC Bank USA, a banking corporation and trust company duly organized and
existing under the laws of the State of New York, as Trustee under the
Indenture, which appointment has been accepted and has become effective. The
address of the Corporate Trust Office of HSBC Bank USA is 10 East 40th Street,
14th Floor, New York, New York 10016 (mailing address: 452 Fifth Avenue, New
York, New York 10018, Attention: Issuer Services).
HSBC BANK USA, as successor Trustee
Dated: __________________, 2003
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EXHIBIT C
CERTIFIED COPY OF RESOLUTIONS
OF THE BOARD OF DIRECTORS OF
SIRIUS SATELLITE RADIO INC
The undersigned, _______________, hereby certifies that he is the duly
appointed, qualified and acting Secretary of Sirius Satellite Radio Inc., a
Delaware corporation (the "Corporation"), and further certifies that the
following is a true and correct copy of certain resolutions duly adopted by the
Board of Directors of the Corporation on _______________ and that said
resolutions have not been amended, modified or rescinded:
RESOLVED, that the Corporation appoint HSBC BANK USA (the "Successor
Trustee") as successor Trustee, Registrar and Paying Agent and the
office or agency where notices and demands to or upon the Corporation
in respect of the Securities (as defined below) and the Subordinated
Notes Indenture (as defined below) may be served under the
Subordinated Notes Indenture, dated as of September 29, 1999 (as
supplemented, the "Subordinated Notes Indenture"), by and between the
Corporation and The Bank of New York (the "Resigning Trustee"), as
Trustee, pursuant to which the Corporation has an aggregate principal
amount outstanding of $16,461,000 of its 8 3/4% Convertible
Subordinated Notes due 2009, and that the Corporation accepts the
resignation of the Resigning Trustee as Trustee, Registrar and Paying
Agent under the Subordinated Notes Indenture, such resignation to be
effective upon the execution and delivery by the Successor Trustee to
the Corporation of an instrument or instruments accepting such
appointment as successor Trustee, Registrar and Paying Agent under the
Subordinated Notes Indenture;
RESOLVED, that the President and Chief Executive Officer, any Vice
President or any Assistant Treasurer of the Corporation be, and each
of them hereby is, authorized, empowered and directed to execute and
deliver in the name and on behalf of the Corporation an instrument or
instruments appointing the Successor Trustee as the successor Trustee,
Registrar and Paying Agent and accepting the resignation of the
Resigning Trustee; and
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RESOLVED, that the proper officers of the Corporation are hereby
authorized, empowered and directed to do or cause to be done all such
acts or things, and to execute and deliver, or cause to be executed or
delivered, any and all such other agreements, amendments, instruments,
certificates, documents or papers (including, without limitation, any
and all notices and certificates required or permitted to be given or
made on behalf of the Corporation to the Successor Trustee or to the
Resigning Trustee), under the terms of any of the executed instruments
in connection with the resignation of the Resigning Trustee, and the
appointment of the Successor Trustee, in the name and on behalf of the
Corporation as any of such officers, in his discretion, may deem
necessary or advisable to effectuate or carry out the purposes and
intent of the foregoing resolutions; and to exercise any of the
Corporation's obligations under the instruments and agreements
executed on behalf of the Corporation in connection with the
resignation of the Resigning Trustee and the appointment of the
Successor Trustee.
IN WITNESS WHEREOF, I have hereunto set my hand as Secretary and have
affixed the seal of the Corporation this ___ day of March, 2003.
By:
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Name:
Title: Secretary
[SEAL]