CREDIT AGREEMENT

Exhibit 10.29

EXECUTION COPY

 

$150,000,000

CREDIT AGREEMENT

dated as of

February 17, 2009

among

XM SATELLITE RADIO INC.,

XM SATELLITE RADIO HOLDINGS INC.,

The Lenders Party Hereto,

and

LIBERTY MEDIA CORPORATION

as Administrative Agent

 

TABLE OF CONTENTS

 

CREDIT AGREEMENT dated as of February 17, 2009 (this “ Agreement ”), among XM SATELLITE RADIO INC., XM SATELLITE RADIO HOLDINGS INC., the LENDERS party hereto, and LIBERTY MEDIA CORPORATION, as Administrative Agent.

The parties hereto agree as follows:

ARTICLE I.

Definitions

SECTION 1.01 Defined Terms . As used in this Agreement, the following terms have the meanings specified below:

“ 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 or in contemplation of the acquisition of such assets by such specified Person.

“ Act ” means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).

“ Additional Term Loan ” has the meaning assigned to such term in Section 2.01

“ Administrative Agent ” means Liberty Media Corporation, in its capacity as administrative agent for the Lenders hereunder, or its successors in such capacity.

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“ 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. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” shall have correlative meanings.

“ Affiliate Transaction ” has the meaning assigned to such term in Section 6.07(a).

“ Agreement ” has the meaning assigned to such term in the introductory paragraph of this Agreement and includes all Exhibits and Schedules hereto.

“ Ancillary XM-4 Satellite Collateral ” means any assets, licenses and/or usage rights associated specifically with the XM-4 Satellite; provided , however , to the extent that any such assets, licenses and/or usage rights are also associated with one or more other satellites used or to

be used by a Loan Party (prior to the Holdings Covenant and Collateral Release Date) or by the Borrower or the Subsidiary Loan Parties (after the Holdings Covenant and Collateral Release Date) or other property or assets material to the business of such party, only that portion, if any, of such assets, licenses and/or usage rights that is divisible and separately conveyable shall constitute Ancillary XM-4 Satellite Collateral.

“ Applicable Percentage ” means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment (or, if the Commitments have terminated or expired, the percentage of the total Loans represented by such Lender’s Loan).

“ Asset Sale ” means (a) the sale, lease (as lessor), license, conveyance or other disposition of any assets; and (b) the issuance of Equity Interests in any of the Borrower’s Subsidiaries or the sale of Equity Interests in any of its Subsidiaries (including in connection with the merger or consolidation of any Subsidiary with or into another Person that results in the direct or indirect ownership by the Borrower of less of the Equity Interests of such Subsidiary than prior to such merger or consolidation).

Notwithstanding the foregoing, the following items shall not be deemed to be Asset Sales:

(i) any single transaction or series of related transactions that involves assets having a fair market value or that involve net proceeds of less than $5,000,000;

(ii) a transfer of assets between or among the Borrower and the Borrower’s Wholly Owned Subsidiary Guarantors;

(iii) an issuance of Equity Interests by a Wholly Owned Subsidiary Guarantor to the Borrower or to another Wholly Owned Subsidiary Guarantor;

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

(v) the sale or other disposition of cash or Cash Equivalents;

(vi) a Restricted Payment or Permitted Investment that is permitted under Section 6.06;

(vii) a single Qualified Sale and Leaseback Transaction; and

(viii) the non-exclusive license of Intellectual Property in the ordinary course of business.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

 

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“ 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 shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.

“ Available Commitment ” shall mean, with respect to any Lender at any time, an amount equal to the excess, if any, of (a) the amount of the Commitment of such Lender at such time over (b) the aggregate principal amount of all Loans made by such Lender prior to such time.

“ Beneficial Interest ” has the meaning assigned to such term in the Participation Agreement.

“ Beneficial Interest Purchase Date ” means any date on which the Borrower and/or Holdings is required to purchase any or all of the Beneficial Interest pursuant to the terms of the XM-4 Sale and Leaseback Offer to Purchase or Refinance and in accordance with the terms of the Participation Agreement and this Agreement; provided, however, that if the Beneficial Interest is purchased for a note or other evidence of Indebtedness permitted to be incurred under the Credit Agreement (including any Permitted Beneficial Interest Indebtedness), the Beneficial Interest Purchase Date shall not occur until the date on which any or all of the principal amount of such Indebtedness shall have been paid.

“ 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 ” means the Board of Governors of the Federal Reserve System of the United States of America.

“ Board of Directors ” means (a) with respect to a corporation, the board of directors of the corporation; (b) with respect to a partnership, the board of directors of the general partner of the partnership (if a corporation); and (c) with respect to any other Person, the board or committee of such Person serving a similar function.

“ Borrower ” means XM Satellite Radio Inc., a Delaware corporation.

“ Borrower Obligations ” means the Credit Agreement Obligations.

“ Borrowing Request ” means a request by the Borrower for a Loan in accordance with Section 2.03.

“ Borrower-SIRIUS Merger ” means (a) a merger or consolidation of the Borrower with or into SIRIUS or a merger or consolidation of SIRIUS with or into the Borrower or (b) any assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower to SIRIUS or of SIRIUS to the Borrower

 

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“ Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

“ 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.

“ Cash Equivalents ” means:

(a) United States dollars;

(b) 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;

(c) 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 $500,000,000;

(d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above;

(e) 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

(f) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (a) through (e) of this definition.

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

(i) SIRIUS shall cease to beneficially own and control at least 100% on a fully diluted basis of the economic interests and voting power in the Equity Interests of Holdings;

(ii) Holdings shall cease to beneficially own and control at least 100% on a fully diluted basis of the economic interests and voting power in the Equity Interests of the Borrower;

(iii) 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 Borrower and its Material Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act);

 

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(iv) the adoption of a plan relating to the liquidation or dissolution of the Borrower;

(v) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is or becomes the Beneficial Owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of SIRIUS, Holdings or the Borrower (other than SIRIUS or a Wholly Owned Subsidiary thereof) (for the purposes of this clause (v), such other person shall be deemed to beneficially own any Voting Stock of a Person held by any other Person (the “parent entity”), if such other person is the Beneficial Owner, directly or indirectly, of more than 50% of the voting power of the Voting Stock of such parent entity); or

(vi) any “change of control” or similar event under the Senior Fixed Rate Notes, the XM Escrow Senior Notes, the Existing XM Facilities, any Material Indebtedness (other than the Existing 10% Notes, to the extent they constitute Material Indebtedness), and/or any Material Indebtedness of SIRIUS, including in each case any Permitted Refinancing Indebtedness in respect thereof.

Notwithstanding the foregoing, none of a Parent Company Merger, a Borrower-SIRIUS Merger or a XM-SIRIUS Merger shall constitute a Change in Control.

“ Change in Control Offer ” has the meaning assigned to such term in Section 2.10(d).

“ Closing Date ” means the date on or after February 28, 2009 on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

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

“ Collateral ” means any and all “Collateral” as defined in any applicable Security Document; provided that if at any time none of the obligations in respect of the Existing 10% Notes, the Existing Loan Documents and the Distribution and Credit Agreement (including if any release of such Liens with respect to the obligations in respect of the Distribution and Credit Agreement occurs concurrently with the automatic release referred to below) are secured by the XM-4 Satellite Collateral, then such XM-4 Satellite Collateral shall be automatically released from the Collateral without any further consent of the Administrative Agent and/or the Lenders in connection with the consummation of the XM-4 Sale and Leaseback Transaction.

“ Collateral Agency Agreement ” means the Collateral Agency Agreement, dated as of June 26, 2008, as amended, restated, supplemented or otherwise modified from time to time, among the “Administrative Agent” (as defined in the Revolving Facility Agreement), the First Lien Collateral Agent, the Revolving Credit Facility Administrative Agent and the other parties from time to time party thereto.

 

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“ Collateral and Guarantee Requirement ” means the requirement that:

(a) on the Closing Date, the Administrative Agent shall have received from Holdings and each Material Subsidiary a counterpart of the Guarantee and Collateral Agreement duly executed and delivered on behalf of such person;

(b) in the case of any person that becomes a Subsidiary Loan Party after the Closing Date, the Administrative Agent shall have received a supplement to the Guarantee and Collateral Agreement, in the form specified therein, duly executed and delivered by such Subsidiary Loan Party;

(c) (i) all the outstanding Equity Interests of any Person that is or becomes a Subsidiary Loan Party on or after the Closing Date and (ii) all the Equity Interests that are owned by a Loan Party (other than XM Investment LLC and XM 1500 Eckington LLC) shall have been pledged pursuant to the Guarantee and Collateral Agreement (or, in the case of Foreign Subsidiaries, at the request of the Administrative Agent, pursuant to a Foreign Pledge Agreement) ( provided that (x) the Equity Interests in any Foreign Subsidiary shall be pledged unless such pledge would result in adverse tax consequences to the Borrower, in which case such pledge shall be limited to 65% of the Voting Stock and 100% of the non-Voting Stock of such Foreign Subsidiary, (y) minority Equity Interests shall be pledged unless such pledge would result in a breach or violation of contracts or agreements to which a Loan Party is party or would trigger rights of first refusal, call rights or other similar provisions thereunder or result in the loss of director appointment rights or other penalty or loss of rights under such contracts or agreements and (z) from and after the Holdings Covenant and Collateral Release Date, Holdings shall be required to pledge only those Equity Interests that constitute Holdings Collateral) and, to the extent required under the Guarantee and Collateral Agreement, the Administrative Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto duly endorsed in blank;

(d) on the Closing Date and at any time thereafter that any other Security Document shall be executed and delivered, except as set forth pursuant to Section 3.15 or as otherwise contemplated by the applicable Security Document, all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Administrative Agent to be filed, registered, recorded, executed or possessed to create the Liens intended to be created by the applicable Security Documents in favor of Administrative Agent, for the benefit of the Secured Parties, and to perfect such Liens to the extent required by, and with the priority required by, the applicable Security Documents and this Agreement, shall have been filed, registered, recorded (or delivered to the Administrative Agent for filing, registration or recording) or executed and delivered; and

(e) except as set forth pursuant to Section 3.03 or as otherwise contemplated by any Security Document, each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with (i) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (ii) the performance of its obligations thereunder.

 

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“ Commitment ” means, with respect to each Lender at any time, the commitment of such Lender to make Loans hereunder in the amount of such Lender’s Commitment as set forth on Schedule 2.01 under the caption “Commitment”, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable, at such time, as such amount may be reduced at or prior to such time pursuant to Section 2.10(e). The aggregate amount of the Lenders’ Commitments as of the date hereof is $150,000,000.

“ Commitment Fee ” has the meaning provided in Section 2.11.

“ Consent Period ” means the period commencing on the date that is three Business Days following the Closing Date and ending on the Date that is twenty Business Days following the Closing Date.

“ Consolidated Net Income ” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Material Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(a) the Net Income (but not loss) of any Person that is not a Material 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 Subsidiary Guarantor thereof;

(b) the Net Income of any Material Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Material 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 Material Subsidiary or its stockholders;

(c) 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

(d) 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:

(a) the consolidated equity of the common stockholders of such Person and its consolidated Material Subsidiaries as of such date; plus

(b) 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.

 

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“ Consolidated Total Debt ” means, as at any date of determination, an amount equal to the aggregate amount of all outstanding Indebtedness of Holdings and its Subsidiaries determined on a consolidated basis in accordance with GAAP.

“ Consolidated Total Senior Debt ” means, as at any date of determination, Consolidated Total Debt, less any Indebtedness subordinated in right of payment and interest to any other Indebtedness of Holdings and its Subsidiaries in accordance with the terms of this Agreement.

“ Credit Agreement Obligations ” means the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Administrative Agent or to any Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.

“ Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

“ Disqualified Stock ” means any Equity Interest 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 Maturity Date. Notwithstanding the preceding sentence, any Equity Interest that would constitute Disqualified Stock solely because the holders thereof have the right to require the Borrower to repurchase such Equity Interests upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Equity Interests provide that the Borrower may not repurchase or redeem any such Equity Interests pursuant to such provisions unless such repurchase or redemption complies with Section 6.06.

“ Distribution and Credit Agreement ” means the Third Amended and Restated Distribution and Credit Agreement dated on or about February 6, 2008 by and among GM, Holdings and the Borrower, as amended, supplemented or otherwise modified from time to time, which shall not have principal amounts outstanding thereunder that exceed $150,000,000 in the aggregate at any time outstanding, provided that the Distribution and Credit Agreement shall at all times be on terms and conditions not materially less favorable to the Borrower and its Subsidiaries, taken as a whole, than the terms and conditions of the GM Credit Agreement dated as of January 28, 2003 among the Borrower, Holdings, GM and the other parties named therein, as amended, restated, supplemented or otherwise modified from time to time, as in effect on the Revolving Facility Closing Date.

 

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“ dollars ” or “ $ ” refers to lawful money of the United States of America.

“ Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, common law, injunctions, notices or binding agreements issued, promulgated or entered into by or on behalf of any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of, or non-compliance with, any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, 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, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ ERISA Event ” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the failure of the Borrower or any ERISA Affiliate to make any required contribution under any Multiemployer Plan; (g) the incurrence by the Borrower or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal

 

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Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (i) the occurrence of an act or omission which could give rise to the imposition of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (k) or Section 4071 of ERISA in respect of any Plan; (j) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Code with respect to any Plan; or (k) the occurrence of any event with respect to any Plan similar to the events described in any of the subsections (a) through (j) hereof which would cause liability to arise to the Borrower or any ERISA Affiliate.

“ Event of Default ” has the meaning assigned to such term in Article VII.

“ Excess Proceeds ” means any Net Proceeds from any Asset Sale that are not finally applied or invested in accordance with the Borrower’s Reinvestment Right.

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

“ Excluded Entities ” means, collectively, (a) any Subsidiary of Holdings (other than the Borrower or a Subsidiary of the Borrower) that has as its principal asset real estate that is leased to Holdings or the Borrower, including XM 1500 Eckington LLC and XM Investment LLC, (b) companies that are not Subsidiaries of Holdings, the Borrower or a Subsidiary of the Borrower, including WorldSpace, Inc. and Canadian Satellite Radio Holdings Inc., (c) WCS Wireless Inc. (as long as it is not a Subsidiary of the Borrower) and (d) any Subsidiary of Holdings (other than the Borrower or a Subsidiary of the Borrower) formed to hold and operate the assets of WCS Wireless Inc.

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on (or measured by) its net income, including franchise taxes imposed in lieu of net income taxes, by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.16(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.16(a).

“ Existing 10% Notes ” has the meaning assigned to such term in clause (b) of the definition of “January 2003 Financing Transactions”.

“ Existing 10% Notes Change of Control Offer ” means a Change of Control Offer (as defined in the Noteholders Agreement) with respect to the Existing 10% Notes made by the Borrower in connection with the Merger and/or any Merger Related Event pursuant to the terms of Section 8.7 of the Noteholders Agreement.

 

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“ Existing 10% Notes Extension ” means each extension, in accordance with the terms of the Note Purchase Agreement, of the date on which the Borrower is required to make a Change of Control Offer (as defined in the Noteholders Agreement) with respect to all of the Existing 10% Notes as a result of any Change of Control (under and as defined in the Note Purchase Agreement) that occurs or will occur in connection with the Merger and/or any Merger Related Event.

“ Existing 10% Notes Waiver ” means a waiver, in accordance with the terms of the Note Purchase Agreement, of any Change of Control (under and as defined in the Note Purchase Agreement) with respect to all of the Existing 10% Notes that occurs or will occur in connection with the Merger and/or any Merger Related Event and the consequences of such Change of Control (including the requirement that the Borrower make a Change of Control Offer (as defined in the Noteholders Agreement)).

“ Existing Collateral ” means the “Collateral” under and as defined in (a) the Existing General Security Agreement and (b) the Existing FCC License Subsidiary Pledge Agreement.

“ Existing Collateral Documents ” means, collectively, (a) the Existing Intercreditor Agreements, (b) the Existing General Security Agreement and (c) the Existing FCC License Subsidiary Pledge Agreement.

“ Existing Loan Documents ” means, collectively, the Revolving Credit Facility Documents and the Term Loan Documents.

“ Existing XM Facilities ” means, collectively, the Revolving Credit Facility Agreement and the Term Loan Agreement.

“ Existing FCC License Subsidiary Pledge Agreement ” means the Amended and Restated FCC License Subsidiary Pledge Agreement, dated as of January 28, 2003, among the Borrower, as pledgor, and The Bank of New York, as First Lien Collateral Agent, as may be amended, restated, supplemented or otherwise modified from time to time.

“ Existing General Security Agreement ” means the Security Agreement, dated as of January 28, 2003, among the Borrower, Holdings and XM Equipment Leasing LLC, as grantors, and The Bank of New York, as First Lien Collateral Agent, as may be amended, restated, supplemented or otherwise modified from time to time.

“ Existing Holdings Indebtedness ” means the Obligations of Holdings in respect of the Existing 10% Notes.

“ Existing Indebtedness ” means Indebtedness of the Borrower and its Material Subsidiaries in existence on May 5, 2006 and any Permitted Refinancing Indebtedness in respect thereof to the extent permitted to the terms of this Agreement, including Existing 10% Notes, in each case until such amounts are repaid or, in the case of Indebtedness incurred under a facility that permits repayment and reborrowing, until the commitment(s) for such facility have terminated or are released.

 

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“ Existing Intercreditor Agreements ” means, collectively, (a) the Intercreditor and Collateral Agency Agreement (FCC License Subsidiary Pledge Agreement), dated as of January 28, 2003, among the Noteholders named in schedule I thereto, The Bank of New York, as Original Trustee, The Bank of New York, as New Trustee, GM, The Bank of New York, as First Lien Collateral Agent and the Additional Creditors from time to time party thereto and (b) the Intercreditor and Collateral Agency Agreement (General Security Agreement), dated as of January 28, 2003, among the Noteholders named in schedule I thereto, The Bank of New York, as New Trustee, GM, The Bank of New York, as First Lien Collateral Agent and the Additional Creditors from time to time party thereto, in each case, as may be amended, restated, supplemented or otherwise modified from time to time.

“ Existing Obligations ” means, collectively, the Revolving Credit Facility Obligations and the Term Loan Obligations.

“ Existing Secured Parties ” means the holders of the Existing 10% Notes, the Term Loan Secured Parties, the Revolving Credit Facility Secured Parties and any other Person identified as a secured party under the Existing Collateral Documents other than any Additional Creditors (as defined in the Existing Intercreditor Agreements) that were not parties thereto immediately prior to the date hereof.

“ Existing Security Interest ” means the security interest of the First Lien Collateral Agent for the benefit of the holders of the Existing 10% Notes, the Term Loan Secured Parties, the Revolving Credit Facility Secured Parties and each Additional Creditor (as defined in the Existing Intercreditor Agreements) in the Existing Collateral pursuant to the terms of the Existing Collateral Documents.

“ FCC ” means the Federal Communications Commission, and any successor entity performing similar functions.

“ FCC License Subsidiary ” means XM Radio Inc., a wholly owned subsidiary of the Borrower that holds all of the FCC licenses with respect to the provision of satellite digital radio service in the United States by the Borrower or any of its Subsidiaries.

“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“ Financial Officer ” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.

 

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“ First Lien Collateral Agent ” means (i) prior to the Release Date, The Bank of New York or such other Person then serving as Collateral Agent under the Existing Collateral Documents and (ii) at any time thereafter JPMorgan Chase Bank, N.A., in its capacity as a collateral agent under the Collateral Agency Agreement or such other person then serving as collateral agent under the Collateral Agency Agreement.

“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia.

“ Foreign Pledge Agreement ” means a pledge agreement with respect to the Equity Interests of a Foreign Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent.

“ Foreign Subsidiary ” means any Subsidiary that is organized under the laws of a jurisdiction other than that in which the Borrower is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“ 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.

“ GM ” means General Motors Corporation or one or more of its wholly-owned subsidiaries.

“ GM Liens ” means the second priority Liens granted by the Loan Parties on all or any portion of the Collateral in support of the Borrower’s and Holdings’ Obligations in respect of the Distribution and Credit Agreement, which Liens shall be subordinated to the Liens securing the Borrower Obligations pursuant to the Second Lien Intercreditor Agreement.

“ Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“ Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition

 

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or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

“ Guarantee and Collateral Agreement ” means the Guarantee and Collateral Agreement, dated as of the Closing Date, in substantially the form of Exhibit C , among Holdings, each Subsidiary Loan Party and the Administrative Agent.

“ Guarantor Obligations ” means with respect to any Guarantor, all obligations and liabilities of such Guarantor which may arise under or in connection with the Guarantee and Collateral Agreement (including, without limitation, Section 2 thereof) or any other Loan Document to which such Guarantor is a party, in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to any Secured Party that are required to be paid by such Guarantor pursuant to the terms of any Loan Document).

“ Guarantors ” means, collectively, (a) Holdings and (b) each Subsidiary Loan Party.

“ Hazardous Materials ” means all explosive or radioactive materials, substances or wastes and all hazardous or toxic materials, substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon, infectious or medical wastes and all other materials, substances or wastes of any nature regulated pursuant to any Environmental Law.

“ Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person under (a) interest rate Swap Agreements; and (b) other agreements or arrangements designed to protect such Person against fluctuations in interest rates or currency values.

“ Holdings ” means XM Satellite Radio Holdings Inc., a Delaware corporation.

“ Holdings Collateral ” has the meaning assigned to such term in the Guarantee and Collateral Agreement.

“ Holdings Collateral Transfer ” has the meaning assigned to such term in Section 9.05.

“ Holdings Covenant and Collateral Release Date ” has the meaning assigned to such term in Section 9.05.

“ Holdings Covenant and Collateral Release Notice ” has the meaning assigned to such term in Section 9.05.

“ Holdings Satellite Vendor Indebtedness ” means Indebtedness of Holdings to a satellite or satellite launch vendor or Affiliate thereof consisting of or otherwise financing the deferral of payments required to be made by Holdings to the vendor in respect of the construction, launch and/or insurance of all or part of the XM-5 Satellite but not beyond the date on which either Holdings or the Borrower shall have legal title to the XM-5 Satellite or the date the XM-5 satellite launches, as applicable.

 

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“ Immaterial Subsidiary ” means each Subsidiary of the Borrower that is not a Material Subsidiary.

“ Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent, (a) in respect of borrowed money; (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (c) in respect of banker’s acceptances; (d) representing Capital Lease Obligations; (e) consisting of 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 (f) 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 specific Person prepared in accordance with GAAP. In addition, the term “Indebtedness” shall include (i) 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), (ii) to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person and (iii) 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;

(2) the face amount thereof, in the case of letters of credit, banker’s acceptances and similar obligations;

(3) the net obligations of such Person in respect thereof, in the case of Hedging Obligations;

(4) the present value of the obligation of the lessee for net rental payments, in the case of Attributable Debt, as set forth in the definition thereof; and

(5) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

“ Indivisible Ancillary XM-4 Satellite Collateral ” means any assets, licenses and/or usage rights associated specifically with the XM-4 Satellite to the extent not constituting (or the portion thereof that is not) Ancillary XM-4 Satellite Collateral because not divisible or separately conveyable.

“ Initial Term Loan ” has the meaning assigned to such term in Section 2.01.

“ Intellectual Property ” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, state, multinational or foreign laws or otherwise, including (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all provisionals, reissuances,

 

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continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, brand names, trade names, domain names and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith, (c) all copyrightable works and protectable designs, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, drawings, designs, specifications, research records, records of inventions, test information, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) any rights in or licenses to or from a third party in any of the foregoing, and (g) any past, present, or future claims or causes of actions arising out of or related to any infringement, misappropriation, dilution or other violation of any of the foregoing, including the right to receive all proceeds and damages therefrom.

“ Investment Agreement ” means the Investment Agreement dated as of the date hereof between the Borrower and Liberty.

“ 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 Borrower or any Material Subsidiary of the Borrower sells or otherwise disposes of any Equity Interests of any direct or indirect Material Subsidiary of the Borrower such that, after giving effect to any such sale or disposition, such Person is no longer a Material Subsidiary of the Borrower, the Borrower 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 Subsidiary not sold or disposed of in an amount determined as provided under Section 6.06(c). The acquisition by the Borrower or any Material Subsidiary of the Borrower of a Person that holds an Investment in a third Person shall be deemed to be an Investment by the Borrower or such Material 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 Section 6.06(c).

“ January 2003 Financing Transactions ” means (a) the amendment and restatement of the Distribution Agreement dated as of January 28, 2003 to provide for 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 ” ), (b) the issuance of the Borrower’s and Holdings’ 10% Senior Secured Convertible Discount Notes due 2009 and common stock to certain investors (the “ Existing 10% Notes ”) pursuant to the Note Purchase Agreement, (c) borrowings of up to $150,000,000 at any time outstanding under the Distribution and Credit Agreement to finance certain revenue share payments owed to GM under the Distribution and Credit Agreement or other amounts which may be owing from time to time to GM, (d) the execution, delivery and performance of all agreements, documents and instruments evidencing the transactions described

 

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in clauses (a) through (c) above and all arrangements contemplated thereby, in each case as reflected in such agreements, documents and instruments as in effect on May 5, 2006 with such amendments that do not (x) have a materially adverse effect on the rights of the Administrative Agent or the Lenders or the Loan Parties or (y) increase the principal amount (or accreted value, as applicable) or shorten the fixed maturity of any Indebtedness.

“ Lenders ” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

“ Liberty ” means Liberty Media Corporation.

“ Liberty Parties ” shall have the meaning ascribed to such term in the Investment Agreement.

“ Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

“ Loan Documents ” means this Agreement, the Security Documents, and any promissory note issued under Section 2.09(c).

“ Loan Parties ” means the Borrower, Holdings and the Subsidiary Loan Parties.

“ Loans ” has the meaning assigned to such term in Section 2.01.

“ Margin Regulations ” means Regulations T, U and X of the Board.

“ Margin Stock ” shall have the meaning assigned to such term in Regulation U.

“ Material Adverse Effect ” means a material adverse effect on (a) the business, assets, operations or financial condition of the Borrower and the Subsidiaries taken as a whole, (b) the ability of the Loan Parties to perform any of their respective obligations under this Agreement or the other Loan Documents or (c) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder.

“ Material Indebtedness ” means Indebtedness (other than the Loans), or obligations in respect of one or more Swap Agreements, of any one or more of Holdings, the Borrower and its Subsidiaries in an aggregate principal amount exceeding $25,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of Holdings, the Borrower or any such Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Holdings, the Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

 

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“ Material Subsidiary ” means each Subsidiary of the Borrower having assets (on a consolidated basis including its Subsidiaries) with a value in excess of 2% of the Total Assets or 2% of total revenues of the Borrower and its Subsidiaries taken as a whole as of any date; provided that (i) in no event may the assets or revenues of all Immaterial Subsidiaries have a value in excess of 10% of the Total Assets or 10% of the total revenues of the Borrower and its Subsidiaries taken as a whole as of any date (and, in such case, Subsidiaries specified by the Borrower (and if the Borrower fails to so specify, specified by the Administrative Agent) shall be deemed to be Material Subsidiaries notwithstanding the foregoing to the extent necessary to satisfy this proviso) and (ii) to the extent permitted by applicable law, rules or regulations, including rules and regulations of the Federal Communications Commission, the FCC License Subsidiary shall at all times be a Material Subsidiary.

“ Maturity Date ” means March 1, 2011.

“ Merger ” means the combination of the businesses of Holdings and SIRIUS through a merger of Holdings and a newly formed, wholly owned subsidiary of SIRIUS, on the terms and conditions set forth in the Merger Agreement.

“ Merger Agreement ” means that certain Agreement and Plan of Merger between Holdings and SIRIUS, dated as of February 19, 2007 and filed by Holdings with the SEC on February 21, 2007 as Exhibit 2.1 to the Form 8-K filed on such date, together with any amendments, supplements or modifications thereto that would not have an adverse effect on the interests of the Lenders.

“ Merger Related Event ” means any event or condition directly related to, and that occurs or will occur as a result of, the Merger (including, without limitation, changes in the composition of the Board of Directors of the Borrower and/or Holdings) that would constitute a “Change of Control” under and as defined in each of the Senior Notes Indentures, the Note Purchase Agreement and/or the Participation Agreement.

“ MLB ” means Major League Baseball Clubs.

“ MLB Contract ” means the Letter Agreement and Binding Term Sheet, dated as of October 15, 2004 (the “ MLB Letter Agreement ”), between the Borrower and the Office of the Commissioner of Baseball, as agent for MLB, together with all agreements subsequently entered into between the Borrower and MLB, or any of their respective affiliates, regarding the broadcast of Major League Baseball games and related programming on XM Radio Service, the creation of liens on an escrow account to hold funds payable to MLB in an amount not to exceed $120,000,000 or other matters contemplated by the MLB Letter Agreement.

“ MLB Intellectual Property ” means any intellectual property rights which were to be the subject of a non-exclusive license under the MLB Contract but which the Borrower is deemed to own, by operation of law or otherwise, and as to which MLB would be retaining a security interest (and any products and proceeds thereof) under the MLB Contract.

 

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“ MLB Letter of Credit ” means each letter of credit that is issued in connection with the MLB Contract for the benefit of MLB and/or the other MLB-related counterparties to the MLB Contract.

“ MLB Letter of Credit Cash Collateral ” means cash of the Borrower that is deposited with the issuer of an MLB Letter of Credit while such MLB Letter of Credit is outstanding to secure the reimbursement obligations of the Borrower under such MLB Letter of Credit in an aggregate amount for all such MLB Letters of Credit not to exceed $126,000,000 (plus any interest thereon accrued with respect to such amount over a period not to exceed three months) at any time.

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“ Net Income ” means, with respect to any specified Person, the net income (loss) of such Person and its Material Subsidiaries, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:

(a) any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with: (i) any Asset Sale; or (ii) the disposition of any securities by such Person or any of its Material Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Material Subsidiaries; and

(b) 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 Borrower or any of its Material 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, and 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 (other than the Credit Agreement Obligations) secured by a Lien on the asset or assets that were the subject of 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.

“ New Debt Securities ” shall have the meaning assigned to such term in Section 9.04(b).

“ New Senior Notes ” means the Senior Floating Rate Notes and the Senior Fixed Rate Notes.

“ New Senior Notes Change of Control Offer ” means each Change of Control Offer (as defined in the Senior Notes Indentures) with respect to the Senior Notes made by the Borrower in connection with the Merger and/or any Merger Related Event pursuant to the terms of Section 4.14 of each Senior Notes Indenture.

 

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“ New Senior Notes Change of Control Offer Payment Date ” means each “Change of Control Offer Payment Date” as defined in Section 4.14 of each Senior Notes Indenture with respect to the Senior Notes and set forth in each New Senior Notes Change of Control Offer.

“ New Senior Notes Extension ” means each extension, in accordance with the terms of the Senior Notes Indentures, of the date on which the Borrower is required to make a Change of Control Offer (as defined in the Senior Notes Indentures) with respect to all of the New Senior Notes as a result of any Change of Control (under and as defined in the Senior Notes Indentures) that occurs or will occur in connection with the Merger and/or any Merger Related Event.

“ New Senior Notes Waiver ” means a waiver, in accordance with the terms of the Senior Notes Indentures, of any Change of Control (under and as defined in the Senior Notes Indentures) with respect to all of the New Senior Notes that occurs or will occur in connection with the Merger and/or any Merger Related Event and the consequences of such Change of Control (including the requirement that the Borrower make a Change of Control Offer (as defined in the Senior Notes Indentures)).

“ Note Purchase Agreement ” means the Note Purchase Agreement dated as of December 21, 2002, among the Borrower, Holdings and the investors party thereto, providing for the sale and issuance of the Existing 10% Notes, as may be amended, restated, supplemented or otherwise modified from time to time.

“ Noteholders Agreement ” means that certain Third Amended and Restated Shareholders and Noteholders Agreement, dated as of June 16, 2003, by and among Holdings and the other parties named on the signature pages thereof, as such agreement has been or may be amended, modified or supplemented from time to time.

“ Obligations ” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“ Organizational Documents ” means (i) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by laws, as amended, (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.

“ Other Taxes ” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.

 

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“ Owner Trustee ” has the meaning assigned to such term in the defined term “Participation Agreement.”

“ Owner Trustee Indenture ” means that certain Indenture dated as of February 13, 2007, between the Owner Trustee and The Bank of New York, a New York banking corporation, not in its individual capacity, except as otherwise expressly set forth therein, but solely as Indenture Trustee under the Indenture, as such Indenture may be amended, modified or supplemented from time to time.

“ Owner Trustee Notes ” means the Notes issued by the Owner Trustee pursuant to the Owner Trustee Indenture.

“ Owner Trustee Notes Repurchase Date ” means any date on which the Borrower or Holdings is required to repurchase any or all of the outstanding Owner Trustee Notes pursuant to the terms of the XM-4 Sale and Leaseback Offer to Purchase or Refinance and in accordance with the terms of the Participation Agreement and this Agreement.

“ Parent Company Merger ” means (a) a merger or consolidation of the Borrower with or into Holdings or a merger or consolidation of Holdings with or into the Borrower or (b) any assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower to Holdings or of Holdings to the Borrower.

“ Pari Passu Indebtedness ” means Indebtedness of the Borrower that is pari passu in right of payment to the Loans or, in the case of a Subsidiary Loan Party, that is pari passu in right of payment to the Guarantee of the Loans.

“ Participant ” has the meaning set forth in Section 9.04(c).

“ Participation Agreement ” means that certain Participation Agreement dated as of February 13, 2007 among Holdings, as Seller, the Borrower, as Lessee, Satellite Leasing (702–4), LLC, a Delaware limited liability company, as Owner Participant, Wells Fargo Bank Northwest, National Association, a national banking association, not in its individual capacity, except as otherwise expressly set forth therein, but solely in its capacity as Owner Trustee (the “Owner Trustee”) and as Lessor, The Bank of New York, a New York banking corporation, as Indenture Trustee, and the purchasers identified on the signature pages thereto, as initial purchasers of the Owner Trustee Notes, entered into in connection with that certain XM-4 Sale and Leaseback Transaction, as such agreement may be amended, modified or supplemented from time to time.

“ Payment Date ” means the last day of each March, June, September and December and, with respect to any loan, the date of any repayment or prepayment made in respect of such Loan.

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

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“ Perfection Certificate ” means a certificate in the form of Exhibit F or any other form approved by the Administrative Agent.

“ Permitted Beneficial Interest Indebtedness ” means any Indebtedness of the Borrower or any of its Material Subsidiaries the net proceeds of which are used to purchase, refinance or replace the Beneficial Interest; provided that:

(a) the aggregate principal amount (or accreted value, if applicable) of such Permitted Beneficial Interest Indebtedness does not exceed $85.0 million;

(b) such Permitted Beneficial Interest Indebtedness shall have a final maturity date later than the final maturity date of the Loans, and shall not require payment of any or all of the principal amount of such Permitted Beneficial Interest Indebtedness prior to the final maturity date of the Loans; and

(c) such Permitted Beneficial Interest Indebtedness is either unsecured or is secured on terms at least as favorable to the Lenders as those contained in the documentation governing the Beneficial Interest.

“ Permitted Business ” means (i) with respect to Holdings, any of the lines of business conducted by Holdings and its Material Subsidiaries as of May 5, 2006, the provision of communications or media services using the wireless spectrum licenses of WCS Wireless, any other line of business involving the transmission or delivery of audio, data, video or other content through currently existing or future technology, and any business similar, ancillary or related thereto or that constitutes a reasonable extension or expansion thereof, including in connection with Holdings’ or its Material Subsidies’ existing and future technology, trademarks and patents and (ii) with respect to the Borrower or any of its Subsidiaries, any of the lines of business conducted by the Borrower and its Material Subsidiaries on May 5, 2006, and any business similar, ancillary or related thereto or that constitutes a reasonable extension or expansion thereof, including in connection with the Borrower’s existing and future technology, trademarks and patents.

“ Permitted Debt ” has the meaning assigned to such term in Section 6.01(b).

“ Permitted Holder ” means (a) any Liberty Party and (b) any other Person, directly or indirectly, controlled by any of the foregoing.

“ Permitted Holdings Debt ” means:

(a) Indebtedness incurred by Holdings in connection with the purchase by Holdings of buildings for use in the satellite radio business, which Indebtedness may be secured by Liens on such buildings;

(b) Indebtedness incurred by Holdings in connection with a single Qualified Sale and Leaseback Transaction, which Indebtedness may be secured by the XM-4 Satellite Collateral;

 

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(c) Indebtedness (other than Credit Agreement Obligations and Existing Obligations) secured by Liens on the assets of Holdings (other than any Holdings Collateral) in an aggregate principal amount not to exceed $50,000,000;

(d) Holdings Satellite Vendor Indebtedness or guarantees by Holdings of Satellite Vendor Indebtedness in respect of the XM-5 Satellite; and

(e) Existing Holdings Indebtedness and any other Indebtedness agreed to by the Required Lenders.

“ Permitted Investments ” means:

(a) any Investment in the Borrower or in a Wholly Owned Subsidiary Guarantor;

(b) any Investment in Cash Equivalents;

(c) any Investment by the Borrower or any Subsidiary of the Borrower in a Person, if as a result of such Investment:

(i) such Person becomes a Wholly Owned Subsidiary Guarantor; or

(ii) 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 Borrower or a Wholly Owned Subsidiary Guarantor;

(d) 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 6.03;

(e) any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of Holdings;

(f) Hedging Obligations;

(g) Investments in existence on May 5, 2006 and modifications thereof;

(h) 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;

(i) loans and advances to officers, directors and employees of the Borrower or any of its Material Subsidiaries in the ordinary course of business not to exceed $2,000,000 at any time outstanding;

(j) Investments indirectly acquired by the Borrower or any of its Material Subsidiaries through a direct Investment in another Person made in compliance with this Agreement, provided that such Investments existed prior to and were not made in contemplation of such Investment;

 

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(k) from and after any Parent Company Merger, Borrower-SIRIUS Merger or, prior to the Holdings Covenant and Collateral Release Notice, XM-SIRIUS Merger, Investments of Holdings or SIRIUS, as the case may be, that become an Investment of the Borrower as a result thereof; and

(l) 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 (l) since May 5, 2006 that are at the time outstanding, not to exceed $125,000,000.

“ Permitted Liens ” means:

(a) Liens in favor of the Borrower;

(b) Liens on property of a Person (including shares of stock or Indebtedness owned by such Person), existing at the time such Person is merged with or into or consolidated with the Borrower or any Material Subsidiary of the Borrower; 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 Borrower or the Material Subsidiary of the Borrower;

(c) Liens on property existing at the time of acquisition thereof by the Borrower or any Material Subsidiary of the Borrower; provided that such Liens were not incurred in contemplation of such acquisition;

(d) 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;

(e) [intentionally omitted];

(f) (x) Liens existing on May 5, 2006 set forth on Schedule 6.02 and (y) the GM Liens;

(g) 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;

(h) Liens incidental to the conduct of the business of the Borrower or a Material Subsidiary of the Borrower 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 Borrower and its Material Subsidiaries taken as a whole, or materially impair the use thereof in the operation of its business;

 

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(i) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security;

(j) judgment Liens not giving rise to an Event of Default;

(k) 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 Borrower or any of its Material Subsidiaries;

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

(m) leases or subleases granted to others that do not materially interfere with the ordinary course of business of the Borrower and its Material Subsidiaries;

(n) Liens arising from filing Uniform Commercial Code financing statements regarding leases;

(o) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customer duties in connection with the importation of goods;

(p) 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;

(q) Liens securing Specified Hedging Agreements with Qualified Counterparties that relate to Indebtedness that is otherwise permitted under this Agreement and Liens securing Specified Cash Management Arrangement Agreements with Qualified Counterparties; provided that in no event shall such Liens secure Obligations (as defined in the Second Lien Intercreditor Agreement) outstanding under such Specified Agreements in an amount that exceeds the Cap Amount (as defined in the Second Lien Intercreditor Agreement) minus the sum of (i) the aggregate amount of the loans outstanding under the Term Loan Agreement, any undrawn Commitments under the Revolving Credit Facility Agreement and any other Obligation (as defined in the Second Lien Intercreditor Agreement) hereunder and under the other First Lien Documents (as defined in the Second Lien Intercreditor Agreement) and (ii) the Obligations (as defined in the Second Lien Intercreditor Agreement) which are outstanding from time to time under the Existing 10% Notes;

(r) 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 Borrower or the Borrower’s Subsidiaries relating to such property or other assets;

 

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(s) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any of its Material Subsidiaries in the ordinary course of business;

(t) Liens securing Indebtedness in an aggregate amount not to exceed $20,000,000 at any one time outstanding;

(u) [intentionally omitted];

(v) from and after any Parent Company Merger, Borrower-SIRIUS Merger or, prior to the Holdings Covenant and Collateral Release Notice, XM-SIRIUS Merger, Liens of Holdings or SIRIUS, as the case may be, that become a Lien of the Borrower as a result thereof;

(w) Liens relating to Satellite Vendor Indebtedness, Holdings Satellite Vendor Indebtedness or Permitted Refinancing Indebtedness in respect thereof covering only (i) the assets acquired, constructed, or improved with such Indebtedness, (ii) the contract of the Borrower or Holdings with the satellite or satellite launch vendor or Affiliate thereof relating to the manufacture of such assets (in so far as such contract relates to such assets), (iii) any insurance policies covering such asset while under construction, and (iv) any proceeds of any of the foregoing;

(x) Liens securing Indebtedness permitted under Section 6.01(b)(vi); provided that such Liens are no more extensive than the liens securing the Indebtedness so refunded, refinanced or replaced thereby;

(y) Liens on the assets of the Borrower or any Material Subsidiary securing indebtedness incurred in a single Qualified Sale and Leaseback Transaction, which shall be limited to the XM-4 Satellite Collateral;

(z) Liens (i) either (x) on cash in an amount not to exceed $120,000,000 (plus any interest thereon accrued with respect to such amount over a period not to exceed three months) at any time that is deposited into an escrow account to serve as credit enhancement for the Borrower’s obligations under the MLB Contract or (y) in respect of the MLB Letter of Credit Cash Collateral and (ii) on the MLB Intellectual Property, in each case, incurred in connection with the MLB Contract while such agreement is in effect;

(aa) Liens in favor of the First Lien Collateral Agent and/or the Administrative Agent for the benefit of the Secured Parties; and

(bb) Liens securing the Existing Obligations and, subject to Section 6.02, any Permitted Refinancing Indebtedness in respect thereof.

“ Permitted Refinancing Indebtedness ” means any Indebtedness of the Borrower or any of its Material 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 Borrower or any of its Material Subsidiaries (other than intercompany Indebtedness or the Existing 10% Notes); provided that:

(a) 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);

 

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(b) (i) if such Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity shorter than that of the Loans or a final maturity date earlier than the Maturity Date, 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 (ii) 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 Loans;

(c) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Loans, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Loans on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

(d) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is unsecured or secured with a Lien that is subordinated to the Liens created under the Loan Documents, such Permitted Refinancing Indebtedness is equally unsecured or subordinated, as applicable, on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and

(e) to the extent otherwise permitted hereunder, any Liens securing Permitted Refinancing Indebtedness in respect of the Existing XM Facilities shall rank equally and ratably with the Liens securing the Credit Agreement Obligations on terms reasonably satisfactory to the Administrative Agent or, in the Borrower’s sole discretion, be subordinated to the Liens securing the Credit Agreement Obligations;

(f) such Indebtedness is incurred either by the Borrower or by the Material Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

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“ Plan ” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, Borrower, or in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“ Pledged Collateral ” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

“ Potential Default ” means the potential Default under clause (f)(ii) of Article VII that would occur as a result of the Borrower being required to (a) make a “Change of Control Offer” under the New Senior Notes and the Existing 10% Notes or (b) make an “Offer to Purchase or Refinance” pursuant to Section 11.07 of the Participation Agreement, in each case as a result of the Merger and/or as a result of any Merger Related Event.

“ Pre-Marketing Cash Flow ” means, for any period, the Consolidated Net Income of Holdings, plus , without duplication and to the extent reflected as a charge in the statements of such Consolidated Net Income, the sum of (a) income taxes (or provision for income taxes); (b) interest expenses, losses from de-leveraging or other one time transactions, and other expenses considered part of the other expenses category in the consolidated financial statements contained in the reports of Holdings filed with the Securities and Exchange Commission (the “ Holdings Statements ”) and therefore non-operational; (c) losses associated with investments in non-consolidated Persons; (d) depreciation (including amounts related to research and development) and amortization expenses; (e) compensation expenses associated with equity-based compensation for employees and third parties pursuant to SFAS No. 123R, calculated in the same manner and using the same designated line items as in the Holdings Statements; (f) all marketing, advertising, subscriber acquisition and distribution expenses; and (g) expenses related to the sales of merchandise; and minus , without duplication and to the extent included in the statements of such Consolidated Net Income, the sum of (a) interest income, gains from de-leveraging or other one time transactions and other gains considered part of the other income category in the Holdings Statements and therefore non-operational; (b) all revenues associated with investments in non-consolidated Persons; and (c) all gains relating to the sales of merchandise.

“ Principals ” means American Honda Motor Company, Inc. and GM.

“ Principal Related Parties ” means (a) any controlling stockholder, 80% (or more) owned Subsidiary, or immediate family member (in the case of an individual) of any Principal; or (b) 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 (a).

“ Proceeds ” means, with respect to any issuance or sale of Equity Interests or Indebtedness or contribution to capital, (a) the cash proceeds of such issuance or sale or contribution net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in

 

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connection with such issuance or sale and net of taxes paid or payable as a result thereof or (b) the fair market value of any assets or securities that constitute proceeds of such issuance or sale or contribution, provided that the fair market value of such assets or securities shall be determined by the Board of Directors whose good faith resolution with respect thereto shall be conclusive and shall be delivered to the Administrative Agent, provided further, that the Board of Directors’ determination must be based on an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing (or, in the case of assets such as satellites or network components generally found only in the satellite industry, an appraiser or other professional with expertise in the valuation of assets of such type) if the fair market value exceeds $20,000,000.

“ Qualified Counterparty ” shall mean, with respect to any Specified Agreement, any counterparty thereto that, at the time such Specified Agreement was entered into, was a Revolving Credit Facility Lender, the Revolving Credit Facility Administrative Agent or the Revolving Credit Facility Syndication Agent or an Affiliate of a Revolving Credit Facility Lender, the Revolving Credit Facility Administrative Agent or the Revolving Credit Facility Syndication Agent.

“ Qualified Sale and Leaseback Transaction ” means the XM-4 Sale and Leaseback Transaction as in effect on July 22, 2008; provided that Indebtedness (the proceeds of which financed the purchase of the XM-4 Satellite Collateral) of a lessor in the XM-4 Sale and Leaseback Transaction that is assumed by Holdings, the Borrower or a Material Subsidiary following the termination of the associated lease and reacquisition of the associated assets by Holdings, the Borrower or such Material Subsidiary (as applicable) shall continue to constitute a Qualified Sale and Leaseback Transaction following such assumption and reacquisition as long as the Liens securing such Indebtedness do not spread to cover any other assets other than those that were subjected to such Liens pursuant to the XM-4 Sale and Leaseback Transaction immediately prior to such assumption and reacquisition.

“ Register ” has the meaning set forth in Section 9.04(b)(iv).

“ Registration Rights Agreement ” means the registration rights agreement entered into on or prior to May 5, 2006 among the Borrower and the initial purchasers of the New Senior Notes.

“ Reinvestment Right ” means the right of the Borrower and its Material Subsidiaries to, within 365 days after the receipt of any Net Proceeds from an Asset Sale, (a) apply such Net Proceeds, at the Borrower’s or such Material Subsidiary’s option to (i) acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business, or Voting Stock of a Material Subsidiary engaged in a Permitted Business (other than any such Voting Stock owned or held by a Subsidiary), (ii) to make a capital expenditure, or (iii) to acquire other assets that are used or useful in a Permitted Business that have an expected useful life of one year or longer, or (b) enter into a legally binding agreement to apply such Net Proceeds as described in the preceding clause (a) within six months after such agreement is entered into and apply such Net Proceeds in accordance with the terms of such agreement or the provisions of clause (a) above; provided that if such agreement terminates the Borrower shall have until the earlier of (x) 90 days after the date of such termination and (y) six months after the date of the Asset Sale resulting in such Net Proceeds to effect such an application.

 

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“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“ Release Date ” means that date on which (a) all of the Existing 10% Notes shall have been paid in full, (b) the Obligations under the Existing 10% Notes are no longer secured by the Existing Security Interest and the Existing Intercreditor Agreements shall have been terminated, (c) all commitments to lend pursuant to the Existing 10% Notes shall have been terminated and (d) the Borrower shall have delivered to the Administrative Agent lien searches showing (i) no Liens securing obligations in excess of $5,000,000 in the aggregate in favor of any “lien creditor” (as defined in the UCC), as certified to the Administrative Agent by a Responsible Officer of the Company, other than those as may be acceptable to the Administrative Agent and (ii) no Liens in favor of any other Person, other than Permitted Liens; provided that, if the Existing XM Facilities are then in full force and effect, both the Release Date and the “Release Date thereunder shall occur on the same date.

“ Required Lenders ” means, at any time, Lenders holding in the aggregate more than 50% of (i) the Commitments or (ii) if the Commitments have been terminated, the outstanding Loans.

“ Responsible Officer ” of any Person shall mean any executive officer or financial officer of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.

“ Restricted Investment ” means any Investment other than a Permitted Investment.

“ Restricted Payment ” has the meaning assigned to such term in Section 6.06(a)(4).

“ Revolving Credit Facility Administrative Agent ” has the meaning assigned to such term in the definition of Revolving Credit Facility Agreement.

“ Revolving Credit Facility Agreement ” means that certain Credit Agreement dated as of May 5, 2006, providing for a revolving credit facility, by and between the Borrower, Holdings, the Revolving Credit Facility Lenders, JPMorgan Chase Bank, N.A., as administrative agent (the “ Revolving Credit Facility Administrative Agent ”), Credit Suisse Securities (USA) LLC, as syndication agent (the “ Revolving Credit Facility Syndication Agent ”), Citicorp North America, Inc., as documentation agent (the “ Revolving Credit Facility Documentation Agent ”), and J.P. Morgan Securities Inc. and UBS Securities LLC, as joint bookrunners and joint lead arrangers (the “ Revolving Credit Facility Arrangers ”).

“ Revolving Credit Facility Arrangers ” has the meaning assigned to such term in the definition of Revolving Credit Facility Agreement.

“ Revolving Credit Facility Documents ” means, collectively, the Revolving Credit Facility Agreement and each other agreement entered into pursuant to any of the foregoing or contemplated thereby.

“ Revolving Credit Facility Documentation Agent ” has the meaning assigned to such term in the definition of Revolving Credit Facility Agreement.

 

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“ Revolving Credit Facility Lender ” means each of the lenders who are party from time to time to the Revolving Credit Facility Agreement.

“ Revolving Credit Facility Obligations ” means, collectively, all obligations of every nature of Holdings, the Borrower and each Subsidiary of the Borrower that is a guarantor pursuant to the terms of the Revolving Credit Facility Documents, in each case from time to time owed to any agent or lender under the Revolving Credit Facility Documents or any other Revolving Credit Facility Document, whether for principal, interest, fees, expenses, indemnification, reimbursement obligations or otherwise and all guarantees of any of the foregoing pursuant to the Revolving Credit Facility Documents.

“ Revolving Credit Facility Secured Parties ” means, collectively, the Revolving Credit Facility Administrative Agent, the Revolving Credit Facility Syndication Agent, the Revolving Credit Facility Documentation Agent, the Revolving Credit Facility Arrangers and the Revolving Credit Facility Lenders.

“ Revolving Credit Facility Syndication Agent ” has the meaning assigned to such term in the definition of Revolving Credit Facility Agreement.

“ Satellite Vendor Indebtedness ” means Indebtedness of the Borrower to a satellite or satellite launch vendor or Affiliate thereof consisting of or otherwise financing the deferral of payments required to be made by the Borrower to the vendor in respect of the construction, launch and/or insurance of all or part of one or more satellites to be used in the Permitted Business but not beyond the date on which the Borrower shall have legal title to such satellites or the date of such satellite launches, as applicable.

“ Second Lien Intercreditor Agreement ” means the Second Lien Intercreditor Agreement, dated as of May 5, 2006, as amended as of June 26, 2008, among the Bank of New York, JPMorgan Chase Bank, N.A., the Borrower, Holdings, each Subsidiary Guarantor and GM, in the form of Exhibit G .

“ Secured Parties ” means the Administrative Agent and each Lender.

“ Security Documents ” means the Guarantee and Collateral Agreement, the Foreign Pledge Agreements and each of the security agreements and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.10.

“ Senior Fixed Rate Notes ” shall mean the $600,000,000 in aggregate principal amount of unsecured senior fixed rate notes due 2014 issued by the Borrower pursuant to the applicable Senior Notes Indenture.

“ Senior Floating Rate Notes ” means the $200,000,000 in aggregate principal amount of unsecured senior floating rate notes due 2013 issued by the Borrower pursuant to the applicable Senior Notes Indenture.

“ Senior Notes Documents ” shall mean, collectively, the Senior Notes Indentures and the New Senior Notes and any other agreements entered into in connection therewith.

 

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“ Senior Notes Indentures ” means (a) the Indenture dated as of May 1, 2006, made by the Borrower, in favor of the trustee thereunder, pursuant to which the Senior Floating Rate Notes were issued and (b) the Indenture dated as of May 1, 2006, made by the Borrower, in favor of the trustee thereunder, pursuant to which the Senior Fixed Rate Notes were issued, in each case as may be amended, restated, supplemented or otherwise modified from time to time.

“ Senior Secured Debt ” means at any date the difference between (a) Consolidated Total Senior Debt on such date and (b) unsecured Indebtedness included in Consolidated Total Senior Debt on such date.

“ Senior Secured Leverage Ratio ” means, with respect to Holdings and its Subsidiaries on a consolidated basis on the last day of any fiscal quarter of Holdings for the four quarter period ended as of such day, the ratio of (a) Senior Secured Debt on such date to (b) Pre-Marketing Cash Flow for such period.

“ Senior Subordinated Note Documents ” means the Borrower’s 7% Exchangeable Senior Subordinated Notes due 2014 and any indenture, note purchase agreement or other agreement pursuant to which such Notes are issued.

“ SIRIUS ” means Sirius Satellite Radio Inc.

“ SIRIUS Credit Facility ” shall mean that certain Credit Agreement, dated as of June 20, 2007, among SIRIUS, the lenders from time to time party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent.

“ SIRIUS Material Indebtedness ” means Indebtedness (including “Hedging Obligations”, (as defined in the SIRIUS Credit Facility)) of SIRIUS and its Restricted Subsidiaries in an aggregate principal amount of $25,000,000 or more, provided that, without regard to the amounts outstanding thereunder, if any, the obligations of SIRIUS under the Loral Credit Agreement (as defined in the SIRIUS Credit Facility) shall be deemed to constitute SIRIUS Material Indebtedness. For purposes of determining SIRIUS Material Indebtedness, the “principal amount” of the obligations of SIRIUS or any Restricted Subsidiary in respect of any “Hedging Obligations” (as defined in the SIRIUS Credit Facility) at any time shall be the aggregate amount (giving effect to any netting agreements) that SIRIUS or such SIRIUS Restricted Subsidiary would be required to pay if such “Hedging Obligations” (as defined in the SIRIUS Credit Facility) were terminated at such time.

“ Specified Agreement ” means any Specified Hedging Agreement and any Specified Cash Management Arrangement Agreement.

“ Specified Cash Management Arrangement ” means any arrangement for cash management, clearing house, wire transfer, depository, treasury or investment services in connection with any transfer or disbursement of funds through an automated clearinghouse or on a same day or immediate or accelerated availability basis (including all monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise of Holdings, the Borrower or any of its Subsidiaries arising out of any cash management, clearing house, wire transfer, depository, treasury or investment services) provided

 

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to Holdings, the Borrower or any of its Subsidiaries by a Qualified Counterparty that has been designated by the Borrower (with the consent of the Administrative Agent, which shall not unreasonably be withheld) as a Specified Cash Management Arrangement. The designation of any such arrangement as a Specified Cash Management Arrangement shall not create in favor of the Qualified Counterparty that is a party thereto any rights in connection with the management, enforcement or release of any Collateral.

“ Specified Cash Management Arrangement Agreement ” means any agreement or document made, delivered or given in connection with any Specified Cash Management Arrangement.

“ Specified Hedging Agreement ” means any interest rate Swap Agreement entered into by the Borrower or any Loan Party and any Qualified Counterparty.

“ 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 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:

(a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Equity Interest 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

(b) any partnership, trust or limited liability company (a) the sole general partner or 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 a combination thereof).

“ Subsidiary Loan Party ” shall mean each Subsidiary of the Borrower that is at any time a Material Subsidiary; provided that the FCC License Subsidiary shall only be a Subsidiary Loan Party to the extent it is permitted to Guarantee the Borrower Obligations under applicable law, rules or regulations, including rules and regulations of the Federal Communications Commission.

“ Swap Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any

 

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similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.

“ Syndication Period ” means the period commencing on the date that is the later of (a) three Business Days following the Closing Date and (b) the day that a road show with respect to New Debt Securities shall have commenced, and, in each case, ending on the date that is ten Business Days after the commencement of such road show.

“ Tax Sharing Agreement ” means the Tax Sharing Agreement dated March 15, 2000 among Holdings, the Borrower and XM Radio Inc., as in effect on May 5, 2006.

“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings (including any interest, penalties and additions thereto) imposed by any Governmental Authority.

“ Term Loan Administrative Agent ” has the meaning assigned to such term in the definition of Term Loan Agreement.

“ Term Loan Agreement ” means that certain Credit Agreement dated as of June 26, 2008, providing for a term loan, by and between the Borrower, Holdings, the Term Loan Lenders, UBS AG, Stamford Branch, as administrative agent (the “ Term Loan Administrative Agent ”) and UBS Securities LLC, as sole bookrunner and sole lead arranger (the “ Term Loan Arranger ”).

“ Term Loan Arranger ” has the meaning assigned to such term in the definition of Term Loan Agreement.

“ Term Loan Closing Date ” means June 26, 2008.

“ Term Loan Commitments ” means, collectively, the commitments to extend revolving loans made by the Term Loan Lenders and to issue letters of credit made by the issuing bank pursuant to the Term Loan Agreement.

“ Term Loan Documents ” means, collectively, the Term Loan Agreement and each other agreement entered into pursuant to any of the foregoing or contemplated thereby.

“ Term Loan Lender ” means each of the lenders who are party from time to time to the Term Loan Agreement.

“ Term Loan Obligations ” means, collectively, all obligations of every nature of Holdings, the Borrower and each Subsidiary of the Borrower that is a guarantor pursuant to the terms of the Term Loan Documents, in each case from time to time owed to any agent or lender under the Term Loan Documents or any other Term Loan Document, whether for principal, interest, fees, expenses, indemnification, reimbursement obligations or otherwise and all guarantees of any of the foregoing pursuant to the Term Loan Documents.

 

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“ Term Loan Secured Parties ” means, collectively, the Term Loan Administrative Agent, the Term Loan Arranger and the Term Loan Lenders.

“ Termination Date ” means December 31, 2009.

“ Total Assets ” means the total assets as set forth on the most recent balance sheet of the Borrower prepared in accordance with GAAP.

“ Total Incremental Equity ” means, at any date of determination, the sum of, without duplication: (a) the aggregate cash proceeds received by the Borrower since May 5, 2006 from the issuance or sale of Equity Interests of the Borrower to Holdings (other than Disqualified Stock but including Equity Interests issued upon the conversion of convertible Indebtedness or from the exercise of options, warrants or rights to purchase Equity Interests of the Borrower other than Disqualified Stock), or of contributions to the equity capital of the Borrower 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 Borrower to Holdings or of actual or deemed capital contributions to the common equity capital of the Borrower by Holdings from the issuance of Equity Interests of Holdings in exchange for the retirement of Pari Passu Indebtedness of the Borrower since the Closing Date, to any Person other than a Subsidiary; plus (b) an amount equal to 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 Borrower or any Material Subsidiary after the Closing Date from such Person; provided , however , that the amount in the foregoing clause (b) shall not exceed the amount of Investments previously made (and treated as a Restricted Payment) by the Borrower or any Material Subsidiary in such Person and that constitutes a Restricted Payment that has been deducted from Total Incremental Equity pursuant to clause (c) below; minus (c) the aggregate amount of all Restricted Payments declared or made on or after May 5, 2006.

“ Transactions ” means the execution, delivery and performance by the Borrower and Holdings of this Agreement, the borrowing of Loans, the use of the proceeds thereof, the execution, delivery and performance by Holdings and the Subsidiary Loan Parties of the Guarantee and Collateral Agreement, the execution, delivery and performance by the Borrower and Holdings of an amendment to the Revolving Credit Facility Agreement, the execution, delivery and performance by the Borrower and Holdings of an amendment to the Term Loan Agreement, and the grant of security interests by the Loan Parties pursuant to the Security Documents.

“ UCC ” means the Uniform Commercial Code as in effect in the State of New York or any other applicable jurisdiction.

“ Voting Stock ” of any Person as of any date means the Equity Interests of such Person that is at the time entitled to vote in the election of the board of directors of such Person.

 

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“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness or Disqualified Stock at any date, the number of years obtained by dividing:

(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 Subsidiary ” of any specified Person means a Subsidiary of such Person all of the outstanding Equity Interests 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 Subsidiaries of such Person and one or more Wholly Owned Subsidiaries of such Person.

“ Wholly Owned Subsidiary Guarantor ” means a Wholly Owned Subsidiary of the Borrower that Guarantees the Borrower Obligations pursuant to the Loan Documents.

“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

“ XM-4 Sale and Leaseback Extension ” means either (i) each extension, in accordance with the terms of the Participation Agreement, by the Lessor (as defined in the Participation Agreement), the Owner Participant (as defined in the Participation Agreement), the holders of the Owner Trustee Notes and each other applicable party in respect of the XM-4 Sale and Leaseback Transaction consummated pursuant to the Participation Agreement of the date on which the Borrower is required to make an XM-4 Sale and Leaseback Offer to Purchase or Refinance as a result of any “Change of Control” or “SDARS License Event” (each term under and as defined in the Participation Agreement) that occurs or will occur in connection with the Merger and/or any Merger Related Event or (ii) each declining, in accordance with the terms of the