Exhibit 4.10
[Face of Note]
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FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, THIS NOTE IS BEING
ISSUED WITH ORIGINAL ISSUE DISCOUNT; YOU MAY CONTACT GREGORY COLE, THE TREASURER
OF XM SATELLITE RADIO INC., AT 1500 ECKINGTON PLACE, N.E., WASHINGTON, D.C.
20002, TELEPHONE NUMBER: (202) 380-4000, WHO WILL PROVIDE YOU WITH ANY REQUIRED
INFORMATION REGARDING THE ORIGINAL ISSUE DISCOUNT.
CUSIP/CINS 98375Y AG 1
14% Senior Secured Discount Notes due 2009
No. 1 $437,956,784
XM SATELLITE RADIO INC.
promises to pay to Cede & Co.
or registered assigns,
the principal sum of Four Hundred Thirty-Seven Million Nine Hundred Fifty-Six
Thousand Seven Hundred Eighty Four
Dollars on December 31, 2009.
Interest Payment Dates: December 31 and June 30 (beginning on June 30, 2006)
Record Dates: December 15 and June 15
Dated: January 28, 2003
XM SATELLITE RADIO INC.
By: /s/ Hugh Panero
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Name: Hugh Panero
Title: President and Chief Executive Officer
By: /s/ Joseph M. Titlebaum
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Name: Joseph M. Titlebaum
Title: Senior Vice President, General Counsel
and Secretary
(SEAL)
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK
as Trustee
By: /s/ John Guiliano
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Authorized Signatory
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
[Back of Note]
14% Senior Secured Discount Notes due 2009
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. XM Satellite Radio Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 14%
per annum from January 1, 2006 until maturity. The Company will pay interest
semi-annually in arrears on December 31 and June 30, of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"); provided that no interest shall be payable prior to
June 30, 2006. Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from January 1,
2006. The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the December 15 or June 15 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium, if any, and interest at the office or agency of the
Company maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest and premium, if any, on
all global Notes and all other Notes the Holders owning $1.0 million or more in
aggregate principal amount thereof which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, The Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
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4. Indenture and Security Agreements. The Company issued the Notes
under an Indenture dated as of January 28, 2003 ("Indenture") between the
Company, the Parent Guarantor named therein, XM Equipment Leasing LLC, any other
Subsidiary Guarantor made a party thereto, and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the indenture shall govern and be controlling. The
Notes are secured obligations of the Company limited to $474,182,582 in
aggregate principal amount at maturity. The Notes are secured by a pledge of the
Collateral pursuant to the Security Agreements referred to in the Indenture.
5. Optional Redemption.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to January 1, 2006.
Thereafter, the Company shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of Accrued Value) set forth below plus accrued
and unpaid interest thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on January 1 of the years indicated
below:
Year Percentage
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2006................................................. 107.000%
2007................................................. 104.667%
2008................................................. 102.333%
2009 and thereafter.................................. 100.000%
(b) At any time prior to January 1, 2006, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount at maturity
of Notes issued under the Indenture at a redemption price of 114% of the
Accreted Value thereof, plus accrued and unpaid interest to the redemption date,
with the net cash proceeds of one or more equity offerings by the Company or any
parent corporation of the Company the net proceeds of which are contributed to
the common equity of the Company (other than an offering of Disqualified Stock);
provided that at least 65% of the aggregate principal amount at maturity of the
Notes issued under this Indenture remains outstanding immediately after the
occurrence of such redemption (excluding Notes held by the Company and its
Subsidiaries) and that such redemption occurs within 90 days of the date of the
closing of such equity offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. Repurchase at Option Holder.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 101% of the Accreted Value thereof plus accrued and unpaid
interest to the date of purchase (the "Change of Control Payment"). Within 30
days following any Change of Control, the Company shall mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sale, within five days of each date on which the aggregate amount of Excess
Proceeds exceeds $10 million, the Company shall commence an Asset Sale Offer
pursuant to Section 3.09 of the Indenture to all Holders of Notes and all
holders of Pari Passu Indebtedness containing provisions similar to those set
forth in the Indenture with respect to offers to purchase
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or redeem with the proceeds of sales of assets to purchase the maximum principal
amount (or, if applicable, accreted value) of Notes and such other Pari Passu
Indebtedness that may be purchased out of the Excess Proceeds at an offer price
in cash in an amount equal to 100% of the Accreted Value thereof (or principal
amount, if applicable, of such other Indebtedness) plus accrued and unpaid
interest to the date fixed for the closing of such offer, in accordance with the
procedures set forth in Section 3.09 of the Indenture. To the extent that the
aggregate Accreted Value of Notes tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, the Company may use such difference for any
purpose not otherwise prohibited by the Indenture. If the aggregate Accreted
Value of Notes and principal amount (or, if applicable, accreted value) of such
other Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other
Pari Passu Indebtedness to be purchased on a pro rata basis based on the
Accreted Value of Notes and principal amount (or, if applicable, accreted value)
of such other Pari Passu Indebtedness tendered. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes.
8. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before the mailing of a notice of redemption of Notes to be redeemed or during
the period between a record date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture, the Notes, the Indenture Guarantees, the Security Agreements and
the Intercreditor Agreements may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount at maturity of the then
outstanding Notes and Additional Notes, if any, voting as a single class, and
any existing default or compliance with any provision of the Indenture, the
Notes, the Indenture Guarantees, the Security Agreements or the Intercreditor
Agreements may be waived with the consent of the Holders of a majority in
principal amount at maturity of the then outstanding Notes and Additional Notes,
if any, voting as a single class. Notwithstanding the foregoing, (a) each of the
Security Agreements may also be amended pursuant to the terms of the applicable
Intercreditor Agreement without the consent of the Holders of at least a
majority in principal amount at maturity of the Notes, and (b) any existing
default or event of default under either of the Security Agreements, and
compliance with any provision of either of the Security Agreements, may be
waived pursuant to the terms of the applicable Intercreditor Agreement without
the consent of the Holders of at least a majority in principal amount at
maturity of the Notes. Without the consent of any Holder of a Note, the
Indenture, the Notes, the Indenture Guarantees, the Security Agreements and the
Intercreditor Agreements may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes or to alter the provisions of Article 2 of the
Indenture (including the related definitions) in a manner that does not
materially adversely affect any Holder, to provide for the assumption of the
Company's obligations to Holders of the Notes by a successor to the Company
pursuant to Article 5 of the Indenture, to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of
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the SEC or in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act, to provide for the Issuance of Additional Notes
in accordance with the limitations set forth in the Indenture, or to add a
Subsidiary Guarantor.
12. Defaults and Remedies. Events of Default include: (i) default for
30 days in the payment when due of interest on the Notes; (ii) default in
payment when due of principal of or premium, if any, on the Notes (including in
connection with an offer to purchase), (iii) failure by the Company to comply
with the provisions of Section 5.01 of the Indenture, the failure by the Company
to make or consummate a Change of Control Offer in accordance with the
provisions of Section 4.14 of the Indenture or the failure of the Company to
make or consummate an Asset Sale Offer in accordance with the provisions of
Section 4.10 of the Indenture; (iv) failure by the Company or any of its
Restricted Subsidiaries, for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in principal amount at maturity of the Notes
(including Additional Notes, if any) then outstanding voting as a single class
to comply with certain other agreements in the Indenture, the Notes, the
Security Agreements or the Intercreditor Agreements; (v) default under certain
other agreements relating to Indebtedness of the Company which default results
in the acceleration of such Indebtedness prior to its express maturity; (vi)
certain final judgments for the payment of money that remain undischarged for a
period of 60 days; (vii) certain events of bankruptcy or insolvency with respect
to the Company or any of its Significant Subsidiaries; (viii) the Security
Agreements or the Intercreditor Agreements shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect and (ix) any Indenture Guarantee shall be held in a
judicial proceeding to be enforceable or invalid or shall cease for any reason
to be in full force and effect. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount at
maturity of the then outstanding Notes may declare the Accreted Value of the
Notes to be due and payable. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, the
Accreted Value of all outstanding Notes will become due and payable without
further action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount at maturity of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount at maturity of
the Notes then outstanding by notice to the Trustee may on behalf of the Holders
of all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
13. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, the Parent Guarantor or any
Subsidiary Guarantor, as such, shall not have any liability for any obligations
of the Company, the Parent Guarantor or such Subsidiary Guarantor under the
Notes, the Indenture, the Indenture Guarantees, the Security Agreements or the
Intercreditor Agreements or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
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17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Parent Guarantor and Subsidiary Guarantors. Payment of Accreted
Value of, premium, if any, and interest (including interest on overdue Accreted
Value, premium, if any, and interest, if lawful) is unconditionally guaranteed
by the Parent Guarantor and each Subsidiary Guarantor pursuant to Article 11 of
the Indenture.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
XM Satellite Radio Inc.
1500 Eckington Place, N.E.
Washington, D.C. 20002
Telecopier No.: (202) 380-4534
Attention: Joseph Titlebaum / General Counsel
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Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
--------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.14 of the Indenture, check the appropriate box below:
[ ]Section 4.10 [ ]Section 4.14
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$_____________
Date: _______________
Your Signature:
--------------------------------
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:
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Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this global Note for an interest in
another global Note or for a definitive Note, or exchanges of a part of another
global Note or definitive Note for an interest in this global Note, have been
made:
Amount of decrease in Amount of increase in Principal Amount
Principal Amount at Principal Amount at at Maturity of this Signature of
Maturity Maturity Global Note following authorized signatory
of this of this such decrease of Trustee or
Date of Exchange Global Note Global Note (or increase) Note Custodian
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