EX-4.3






EXHIBIT 4.3

EXECUTION




SECURITY AGREEMENT




dated as of February 13, 2009




among




XM 1500 ECKINGTON LLC




and




XM INVESTMENT LLC




as Grantors




and




U.S. BANK NATIONAL ASSOCIATION,




as Collateral Trustee










 



 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	1. DEFINITIONS
	 	 	4	 
	 
	 	 	 	 
	1.1 General Definitions
	 	 	4	 
	1.2 Definitions; Interpretation
	 	 	9	 
	 
	 	 	 	 
	2. GRANT OF SECURITY
	 	 	9	 
	 
	 	 	 	 
	2.1 Grant of Security
	 	 	9	 
	 
	 	 	 	 
	3. SECURITY FOR OBLIGATIONS
	 	 	10	 
	 
	 	 	 	 
	3.1 Security for Obligations
	 	 	10	 
	3.2 Obligations Remain
	 	 	11	 
	 
	 	 	 	 
	4. REPRESENTATIONS AND WARRANTIES AND COVENANTS
	 	 	11	 
	 
	 	 	 	 
	4.1 Generally
	 	 	11	 
	4.2 Intellectual Property
	 	 	13	 
	4.3 Investment Property
	 	 	14	 
	4.4 Documents, Chattel Paper, Instruments and Deposit Accounts
	 	 	16	 
	 
	 	 	 	 
	5. FURTHER ASSURANCES
	 	 	17	 
	 
	 	 	 	 
	5.1 Further Assurances
	 	 	17	 
	 
	 	 	 	 
	6. ATTORNEY-IN-FACT
	 	 	19	 
	 
	 	 	 	 
	6.1 Power of Attorney
	 	 	19	 
	6.2 No Duty on the Part of Collateral Trustee
	 	 	20	 
	 
	 	 	 	 
	7. REMEDIES
	 	 	20	 
	 
	 	 	 	 
	7.1 Generally
	 	 	20	 
	7.2 Application of Proceeds
	 	 	21	 
	7.3 Investment Property
	 	 	21	 
	7.4 Intellectual Property
	 	 	22	 
	7.5 FCC Licenses
	 	 	23	 
	 
	 	 	 	 
	8. CONTINUING SECURITY INTEREST; TERMINATION AND RELEASE
	 	 	24	 
	 
	 	 	 	 
	9. STANDARD OF CARE; SECURED PARTY MAY PERFORM
	 	 	24	 
	 
	 	 	 	 
	10. INDEMNITY
	 	 	25	 
	 
	 	 	 	 
	11. MISCELLANEOUS
	 	 	26	 












 



3 


	 	 	 	 	 
	 	 	Page
	11.1 Notices
	 	 	26	 
	11.2 Expenses
	 	 	26	 
	11.3 Amendments and Waivers
	 	 	26	 
	11.4 Successors and Assigns
	 	 	26	 
	11.5 Independence of Covenants
	 	 	27	 
	11.6 Survival of Representations, Warranties and Agreements
	 	 	27	 
	11.7 No Waiver; Remedies Cumulative
	 	 	27	 
	11.8 Marshaling; Payments Set Aside
	 	 	27	 
	11.9 Severability
	 	 	27	 
	11.10 Headings
	 	 	27	 
	11.11 Applicable law
	 	 	27	 
	11.12 Consent To Jurisdiction
	 	 	27	 
	11.13 Waiver of Jury Trial
	 	 	28	 
	11.14 Counterparts
	 	 	28	 
	11.15 Effectiveness
	 	 	28	 
	11.16 Entire Agreement
	 	 	28	 
	11.17 Trust Indenture Act Controls
	 	 	28	 
	 
	 	 	 	 
	 
	SCHEDULE 1.1 - FCC LICENSE
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.1 - FINANCING STATEMENTS
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.2 - INTELLECTUAL PROPERTY
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.3 - INVESTMENT PROPERTY
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.4(e) -COMMERCIAL TORT CLAIMS
	 	 	 	 
	 
	 	 	 	 
	 
	EXHIBIT A
– FORM OF SECURITY AGREEMENT SUPPLEMENT
	 	 	 	 













 



 




SECURITY AGREEMENT




          This SECURITY AGREEMENT (this “Agreement”), dated as of February 13, 2009, made among
XM 1500 ECKINGTON LLC, a Delaware limited liability company (“XM Eckington”), XM INVESTMENT
LLC, a Delaware Limited Liability Company (“XM Investment” and together with XM Eckington,
the “Grantors”) and U.S. Bank National Association, acting as collateral trustee
(“Collateral Trustee”) for the benefit of the Secured Parties (as defined below).




RECITALS




          A. XM SATELLITE RADIO HOLDINGS INC., a Delaware corporation (the “Company”), SIRIUS XM
RADIO INC., a Delaware corporation, (the “Parent”),the Grantors and U.S. Bank National
Association, as Trustee (“Trustee”), have entered into that certain Indenture dated as of
the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the
“Indenture”), pursuant to which the Company may issue up to $250,000,000 aggregate
principal amount at maturity of its Senior PIK Secured Notes due 2011 (the “Notes”).




          B. The Grantors have guaranteed the obligations of the Company under the Indenture and the
Notes.




          NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, each Grantor and Collateral Trustee, for and on behalf of itself and the Secured
Parties, agree as follows:



1. DEFINITIONS.




     1.1 General Definitions. In this Agreement, the following terms shall have the
following meanings:



          “Accounts” shall mean all “accounts” as defined in Article 9 of the UCC, excluding
assets described in the definition of Excluded Collateral.




          “Agreement” shall have the meaning set forth in the preamble.




          “Books” shall mean books and records of Grantors (including all of their Records
indicating, summarizing, or evidencing assets (including the Collateral) or liabilities, all
Records relating to Grantor’s business operations or financial conditions, and all of their goods.
or General Intangibles related to such information.




          “Capital Lease Obligations” shall mean a liability in respect of a capital lease that
at the time any determination thereof is to be made would be required to be capitalized on a
balance sheet in accordance with GAAP.




          “Capital Stock” shall mean:




          (1) in the case of a corporation, corporate stock;










 



 




 5




          (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;




          (3) in the case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and




          (4) any other interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing Person.




          “Chattel Paper” shall mean all “chattel paper” as defined in Article 9 of the UCC,
including, without limitation, “electronic chattel paper” or “tangible chattel piper”, as each term
is defined in Article 9 of the UCC, excluding assets described in the definition of Excluded
Collateral.




          “Collateral” shall have the meaning set forth in Section 2.1.




          “Collateral Trustee” shall have the meaning set forth in the preamble.




          “Commercial Tort Claims” shall mean all “commercial tort claims” as defined in Article
9 of the UCC, including, without limitation, the commercial tort claims listed on Schedule
4.4(e), excluding assets described in the definition of Excluded Collateral.




          “Commodities Accounts” shall mean all “commodity accounts” as defined in Article 9 of
the UCC, excluding assets described in the definition of Excluded Collateral.




          “Communications Act” shall mean the Communications Act of 1934, as amended, and the
rules and regulations of the FCC, as from time to time in effect.




          “Controlled Foreign Corporation” shall mean “controlled foreign corporation” as
defined in the United States Internal Revenue Code of 1986, as amended from time to time.




          “Copyrights” shall mean (i) copyrights and copyright registrations, including, without
limitation, the copyright registrations listed on Schedule 4.2(A) and (A) all renewals
thereof, (B) all income, royalties, damages and payments now and hereafter due or payable under and
with respect thereto, including, without limitation, payments under all licenses entered into in
connection therewith and damages and payments for past or future infringements or dilutions
thereof, (C) the right to sue for past, present and future infringements and dilutions thereof, (D)
the goodwill of any Grantor’s business symbolized by the foregoing and connected therewith, and (E)
all of any Grantor’s rights corresponding thereto throughout the world; and (ii) all proceeds of
any and all of the foregoing, including, without limitation, licensed royalties and proceeds of
infringement suits, in each case, excluding assets described in the definition of Excluded
Collateral.




          “Deposit Accounts” shall mean all “deposit accounts” as defined in Article 9 of the
UCC, excluding assets described in the definition of Excluded Collateral.




          “Document” shall mean “document” as defined in Article 9 of the UCC, excluding assets
described in the definition of Excluded Collateral.










 



6




          “Equipment” shall mean all equipment (whether or not any such equipment is so attached
to the real property that it constitutes fixtures), machinery, machine tools, motors, furniture,
satellites, furnishings, vehicles (including motor vehicles), tools, parts, goods (other than
consumer goods, farm products, or Inventory), wherever located, including all attachments,
accessories, accessions, replacements, substitutions, additions, and improvements to any of the
foregoing, excluding assets described in the definition of Excluded Collateral.




          “Excluded Collateral” shall mean all of each Grantor’s right, title, and interest in
and to each of the following:




          (a) any licenses issued by the FCC to any Grantor, including, without limitation, the licenses
more fully described on Schedule 1.1 to the extent, but only to the extent that such
Grantor is prohibited from granting a security interest therein pursuant to the Communications Act
of 1934, as amended, and the policies and regulations promulgated thereunder, but the Collateral
expressly includes, to the maximum extent permitted by law, all rights incident or appurtenant to
such licenses and the rights to receive all proceeds derived from or in connection with the sale,
assignment or transfer of such licenses;




          (b) any assets, agreements, leases, permits or licenses or other property that are not
permitted to be subjected to a Lien hereunder without the consent of third parties, which consent
has not been obtained, to the extent that the requirement of such consent is not rendered
ineffective (meaning that such Lien would not create a default with respect to such assets,
agreements, leases, permits or licenses or other property) by Article 9 of the UCC; and




          (c) the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the
voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to
vote; provided that immediately upon the amendment of the United States Internal Revenue
Code of 1986, as amended, to allow the pledge of a greater percentage of the voting power of
capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral
shall include, and each Grantor shall be deemed to have granted a security interest in, such
greater percentage of capital stock of the applicable Controlled Foreign Corporation.




          “FCC” shall mean the Federal Communications Commission or any Governmental Body
succeeding to the functions thereof.




          “Financial Asset” shall mean any “financial asset” as defined in Article 8 of the UCC,
excluding assets described in the definition of Excluded Collateral.




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time.




          “General Intangibles” shall mean any “general intangible” as defined in Article 9 of
the UCC, excluding assets described in the definition of Excluded Collateral.










 



7




          “Governmental Body” shall mean any nation or government, any state or other political
subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and any court or arbitrator.




          “Grantor” shall have the meaning set forth in the preamble hereof.




          “Instrument” shall mean any “instrument” as defined in Article 9 of the UCC, excluding
assets described in the definition of Excluded Collateral.




          “Intellectual Property” shall mean, collectively, the Copyrights, the Patents, the
Trademarks and the Intellectual Property Licenses.




          “Intellectual Property Licenses” shall mean all rights under or interest in any
Patent, Trademark or Copyright license agreements with any other party, whether a Grantor is a
licensee or licensor under any such license agreement, excluding assets described in the definition
of Excluded Collateral; provided, however, that Intellectual Property Licenses
shall not include any license agreement in effect as of the date hereof which by its terms
prohibits the grant of the security interest contemplated by this Agreement and which prohibition
is not rendered ineffective (meaning that such Lien would not create a default under such license
agreement) by Article 9 of the UCC, except that upon the termination of such prohibitions for any
reason whatsoever, such license agreement shall be deemed to be included in Intellectual Property
Licenses.




          “Inventory” shall mean any “inventory” as defined in Article 9 of the UCC, excluding
assets described in the definition of Excluded Collateral.




          “Investment Property” shall mean all “investment property” as defined in Article 9 of
the UCC, including all Securities, Securities Accounts and Commodities Accounts, excluding assets
described in the definition of Excluded Collateral.




          “Letter-of-Credit Right” shall mean any “letter-of-credit right” as defined in Article
9 of the UCC, excluding assets described in the definition of Excluded Collateral.




          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a
security interest and any filing of or agreement to give any financing statement, under the UCC (or
equivalent statutes) of any jurisdiction.




          “Material” shall mean, with respect to any subject matter in the context of any
representation, warranty or covenant under this Agreement that can be expressed in monetary terms,
an amount in excess of $5,000,000.




          “Money” shall mean “money” as defined in Article 9 of the UCC, excluding assets
described in the definition of Excluded Collateral.




          “Notes” shall have the meaning set forth in the Recitals hereof.










 



8




          “Patents” shall mean all (i) patents and patent applications, including, without
limitation, the patents and patent applications listed on Schedule 4.2(B), and (A) all
extensions and adjustments thereof, (B) all income, royalties, damages and payments now and
hereafter due or payable under and with respect thereto, including, without limitation, payments
under all licenses entered into in connection therewith and damages and payments for past or future
infringements thereof, (C) the right to sue for past, present and future infringements thereof, and
(D) all of Grantor’s rights corresponding thereto throughout the world; and (ii) proceeds of any
and all of the foregoing, including, without limitation, license royalties and proceeds of
infringement suits, excluding assets described in the definition of Excluded Collateral.




          “Permitted Liens” shall mean Liens that constitute “Permitted Liens” within the
meaning of each of the Secured Agreements or are otherwise not prohibited under any of the Secured
Agreements.




          “Purchase Money Obligations” shall mean obligations incurred in accordance with the
Secured Agreements for the purpose of financing all or any part of the purchase price or cost of
acquisition, construction, installation or improvement of property, plant equipment or other assets
used in the business of any Grantor; provided that the Liens attributable to such
obligations cover only the assets acquired, constructed, installed or improved with such financing.




          “Record” shall mean information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable form.




          “Secured Obligations” shall have the meaning specified in Section 3.1.




          “Secured Parties” shall mean (a) the Holders, (b) the Collateral Trustee, and (c) the
permitted successors and assigns of each of the foregoing.




          “Securities Accounts” shall mean all “securities accounts” as defined in Article 8 of
the UCC, excluding assets described in the definition of Excluded Collateral.




          “Security” shall mean any “security” as defined in Article 8 of the UCC, excluding
assets described in the definition of Excluded Collateral.




          “Security Agreement Supplement” shall mean any supplement to this agreement in
substantially the form of Exhibit A.




          “Subsidiary” shall have the meaning set forth in the Indenture.




          “Supporting Obligation” shall mean any “supporting obligation” as defined in Article 9
of the UCC, excluding assets described in the definition of Excluded Collateral.




          “Trademarks” shall mean (i) all trademarks, trade names, registered trademarks.
trademark applications, service marks, registered service marks and service mark applications,
including, without limitation, the trade names, registered trademarks, trademark applications,
registered service marks and service mark applications listed on Schedule 4.2(C), and (A)
all renewals thereof, (B) all income, royalties, damages and payments now and hereafter due or









 



9


payable under and with respect thereto, including, without limitation, payments under all
licenses entered into in connection therewith and damages and payments for past or future
infringements or dilutions thereof, (C) the right to sue for past, present and future infringements
and dilutions thereof, (D) the goodwill of any Grantor’s business symbolized by the foregoing and
connected therewith, and (E) all of any Grantor’s rights corresponding thereto throughout the
world; and (ii) all proceeds of any and all of the foregoing, including, without limitation,
license royalties and proceeds of infringement suits, in each case, excluding assets described in
the definition of Excluded Collateral.




          “Trustee” shall have the meaning set forth in the Recitals.




          “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the
State of New York or, when the context requires, the Uniform Commercial Code as in effect from time
to time in any other applicable jurisdiction.




     1.2 Definitions; Interpretation. All capitalized terms used herein (including the
preamble and recitals hereto) and not otherwise defined herein shall have the meanings ascribed
thereto in the Indenture or, if not defined therein, in the UCC. References to “Sections,”
“Exhibits” and “Schedules” shall be to Sections, Exhibits and Schedules, as the case may be, of
this Agreement unless otherwise specifically provided. Any of the terms defined herein may, unless
the context otherwise requires, be used in the singular or the plural, depending on the reference.
The use herein of the word “include” or “including”, when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or matters, whether or not
nonlimiting language (such as “without limitation” or “but not limited to” or words of similar
import) is used with reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement, term or matter. All
references herein to provisions of the UCC shall include all successor provisions under any
subsequent version or amendment to any Article of the UCC.


2. GRANT OF SECURITY.




     2.1 Grant of Security. Each Grantor hereby grants to Collateral Trustee for its
benefit and the benefit of the Secured Parties, a first priority security interest and continuing
lien on all of such Grantor’s right, title and interest in, to and under all property of such
Grantor including, but not limited to the following, in each case whether now owned or existing or
hereafter acquired or arising and wherever located (collectively, “Collateral”):




	 	(A)	 	Accounts;
	 
	 	(B)	 	Books;
	 
	 	(C)	 	Chattel Paper;
	 
	 	(D)	 	Commercial Tort Claims;
	 
	 	(E)	 	Deposit Accounts;










 



10


	 	(F)	 	Documents;
	 
	 	(G)	 	Equipment;
	 
	 	(H)	 	Financial Assets;
	 
	 	(I)	 	General Intangibles;
	 
	 	(J)	 	Intellectual Property;
	 
	 	(K)	 	Inventory;
	 
	 	(L)	 	Investment Property;
	 
	 	(M)	 	Instruments;
	 
	 	(N)	 	Letter-of-Credit Rights;
	 
	 	(O)	 	Money;
	 
	 	(P)	 	Cash Equivalent Investments, or other assets of
any Grantor that now or hereafter come into the possession, custody, or
control of Collateral Trustee;
	 
	 	(Q)	 	to the extent not otherwise included above, all
Supporting Obligations relating to any of the foregoing;
	 
	 	(R)	 	to the extent not otherwise included above, all
other personal property of the Grantors of any kind or description; and
	 
	 	(S)	 	to the extent not otherwise included above, all
of the proceeds and products, whether tangible or intangible, of any of
the foregoing, including proceeds of insurance covering any or all of
the foregoing;




provided, however, notwithstanding anything herein to the contrary, in no event
shall the Collateral include any Excluded Collateral.



3. SECURITY FOR OBLIGATIONS.




     3.1 Security for Obligations. With respect to each Grantor, this Agreement secures,
and the Collateral granted by such Grantor is collateral security for, the prompt and complete
payment or performance in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts that would become
due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C, §362(a) (and any successor provision thereof)), of all obligations of such Grantor hereunder
and under the Note, the Note Guarantee, the Indenture and the other Security Documents (the
“Secured Obligations”).




 












 





11




     3.2  Obligations Remain. Anything contained herein to the contrary notwithstanding (a)
each Grantor shall remain liable under any partnership agreement or limited liability company
agreement relating to any partnership interest or limited liability company interest included in
the Collateral and any other contracts and agreements included in the Collateral, to the extent set
forth therein, to perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed; and (b) Collateral Trustee shall not have any obligation or
liability under any partnership agreement or limited liability company agreement relating to any
partnership interest or limited liability company interest included in the Collateral and any other
contracts and agreements included in the Collateral by reason of this Agreement, nor shall
Collateral Trustee be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.



4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.




     4.1  Generally.



          (a) Representations and Warranties. Each Grantor hereby represents and warrants on the
date hereof that:





	 	(A)	 	it is the sole legal and beneficial owner of
the Collateral with respect to which it is granting a security interest
hereunder free and clear of all Liens other than Permitted Liens;
	 
	 	(B)	 	upon the filing of all UCC financing statements
naming such Grantor as “Debtor” and Collateral Trustee as “Secured
Party” and describing the Collateral, in the filing offices set forth
opposite such Grantor’s name on Schedule 4.1 hereof and, to the
extent not subject to Article 9 of the UCC, upon the recordation of the
security interest granted hereunder in Patents, Trademarks and
Copyrights in the applicable patent, trademark and copyright registries
(including the United States Patent and Trademark Office and the United
States Copyright Office), the security interests granted to Collateral
Trustee hereunder will constitute valid and, to the extent that a
security interest in such Collateral can be perfected by the filing of
financing statements under the UCC, perfected first priority Liens
(subject in the case of priority only to Permitted Liens);
	 
	 	(C)	 	no authorization, approval or other action by.
and no notice to or filing with, any Governmental Body is required for
either (i) the pledge or grant by any Grantor of the Liens purported to
be created in favor of Collateral Trustee hereunder or (ii) the
exercise by Collateral Trustee of any rights or remedies in respect of
any Collateral (whether specifically granted or created hereunder or
created or provided for by applicable law), except (A) for the filings
contemplated by Section 4.1(a)(ii) above, (B) as may be
required, in connection with the disposition of any Investment










 



12








	 	 	 	Property, by laws generally affecting the offering and sale of
Securities and (C) to the extent any consents or approvals are
required under the Assignment of Claims Act of 1940 or the
Communications Act; and
	 
	 	(D)	 	in the case of Material Instruments and
Material Investment Property consisting of certificated securities,
upon delivery of such instruments and the certificates representing
such certificated securities (in the case of such certificated
securities, duly endorsed or accompanied by duly executed instruments
of assignment of transfer in blank) Collateral Trustee will have a
first priority perfected security interest in such Instruments and
Investment Property (subject in the case of priority only to Permitted
Liens).





          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that:





	 	(A)	 	except for the security interest created by
this Agreement, it shall not create or suffer to exist any Lien upon or
with respect to any of the Collateral, except Permitted Liens, and such
Grantor shall (A) defend the Collateral against all Persons at any time
claiming any interest therein and (B) file such financing or
continuation statements, or amendments thereto, as may be requested by
the Collateral Trustee to preserve the perfection of the security
interests granted hereunder;
	 
	 	(B)	 	it shall not use or permit any Collateral to be
used unlawfully or in violation of any provision of this Agreement or
any applicable statute, regulation or ordinance or any policy of
insurance covering the Collateral;
	 
	 	(C)	 	it shall not change Grantor’s name or
jurisdiction of organization unless it shall have (a) notified
Collateral Trustee in writing, by executing and delivering to
Collateral Trustee a completed Security Agreement Supplement,
substantially in the form of Exhibit A attached hereto,
together with a supplement to Schedule 4.1, at least thirty
(30) days prior to any such change, identifying such new proposed name
or jurisdiction of organization and (b) taken all actions necessary to
maintain the continuous validity and perfection of Collateral Trustee’s
security interest in the Collateral intended to be granted hereby;
	 
	 	(D)	 	it shall make payment of (i) all taxes,
assessments, license fees, levies and other charges of Governmental
Bodies imposed upon it which if unpaid, would be reasonably likely to
become a Lien on the Collateral that is not a Permitted Lien, and (ii)
all claims (including, without limitation, claims for labor, services,
materials










 



13








	 	 	 	and supplies) for sums which have become due and payable and which by
law have or are reasonably likely to become a Lien upon any of the
Collateral other than a Permitted Lien; and
	 
	 	(E)	 	upon such Grantor or any officer of such
Grantor obtaining knowledge thereof, it shall promptly notify
Collateral Trustee in writing of the levy of any legal process against
the Collateral or any portion thereof.





     4.2  Intellectual Property.



          (a) Representations and Warranties. Except with respect to any patents that have
expired or been abandoned on the date hereof, each Grantor hereby represents and warrants, on the
date hereof, that Schedule 4.2 sets forth a true and complete list of all United States
federal registrations of and applications for Patents, Trademarks, and registered Copyrights owned
by such Grantor and material to the business of such Grantor.




          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:





	 	(A)	 	except as permitted under the Indenture and the
Security Documents, it shall not do any act or omit to do any act
whereby any of the Intellectual Property which is material to the
business of such Grantor may lapse, or become abandoned, dedicated to
the public, or unenforceable, or which would adversely affect the
validity, grant, or enforceability of the security interest granted
therein or herein;
	 
	 	(B)	 	it shall take all reasonable steps in the
United States Patent and Trademark Office and the United States
Copyright Office, to pursue any application and maintain any
registration of each Trademark, Patent, and Copyright owned by such
Grantor and material to its business which is now or shall become
included in the Collateral constituting Intellectual Property (except
for such Intellectual Property with respect to which such Grantor has
determined in the exercise of its commercially reasonable judgment that
it shall not seek registration) including, but not limited to, those
items on Schedule 4.2(A), (B) and (C);
	 
	 	(C)	 	it shall (i) within 15 calendar days after
either the end of each calendar year or the request of the Collateral
Trustee (at the written direction of the Secured Parties), report to
Collateral Trustee (1) any new application that has been filed during
the preceding calendar year in the name of such Grantor to register any
Intellectual Property not constituting Excluded Collateral with the
United States Patent and Trademark Office or the United States
Copyright Office, and (2) any new registration of such Intellectual










 



14








	 	 	 	Property by any such office, in each case, by executing and
delivering to Collateral Trustee a completed Security Agreement
Supplement, substantially in the form of Exhibit A attached
hereto, together with a supplement to Schedule 4.2 and (ii)
provide Collateral Trustee, within ten (10) days prior to any filing
described in clause (i)(1) of this Paragraph (C), written notice of
such filing; provided, however, that any failure to
comply with the requirements of this clause (ii) shall not constitute
a Default if (I) the actions previously taken in connection with this
Agreement are effective, and following such filing will continue to
be effective, to create and perfect the security interest intended to
be created hereby in the Intellectual Property to which such filing
relates, (II) such filing relates to Intellectual Property that is
not reasonably expected to be material to the business of such
Grantor at the time of such filing, or (III) such failure is
subsequently remedied at a time when no other Lien (other than a
Permitted Lien) on the Intellectual Property to which such filing
relates shall have attached and become perfected; and






	 	(D)	 	if requested by the Collateral Trustee (such
request to be given at the written request of the Holders) in
connection with the actions required pursuant to Section
4.2(b)(C), it shall promptly execute and deliver to Collateral
Trustee any document required to acknowledge, confirm, register,
record, or perfect Collateral Trustee’s interest in any part of the new
Intellectual Property, whether now owned or hereafter acquired.





     4.3  Investment Property.



          (a) Representations and Warranties. Each Grantor hereby represents and warrants, that
on the date hereof:





	 	(A)	 	Schedule 4.3 sets forth under the
headings “Pledged Stock,” “Pledged LLC Interests,” and “Pledged
Partnership Interests”, all equity interests of Subsidiaries and all
other Material equity interests owned by any Grantor included in the
Collateral and such equity interests constitute the percentage of
issued and outstanding shares of stock, percentage of membership
interests, percentage of partnership interests or percentage of
beneficial interest of the respective companies thereof to the extent
indicated on such Schedule;
	 
	 	(B)	 	it is the record and beneficial owner of the
equity interests included in the Collateral free of all Liens, rights
or claims of other Persons other than Permitted Liens; and










 



15








	 	(C)	 	Schedule 4.3 sets forth under the
heading “Pledged Debt” all of the Material issued and outstanding
Indebtedness evidenced by an instrument or certificated security of the
respective issuers thereof owing to such Grantor.





          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that:





	 	(A)	 	it shall not vote to enable or take any other
action to: (a) amend or terminate any partnership agreement, limited
liability company agreement, certificate of incorporation, by-laws or
other organizational documents in any way that adversely affects the
validity, perfection or priority of Collateral Trustee’s security
interest, (b) permit any of its Subsidiaries to dispose of all or a
material portion of their assets in a manner which would be prohibited
under the Indenture or (c) cause any issuer of any partnership
interests or limited liability company interests included in the
Collateral which are not securities (for purposes of the UCC) on the
date hereof to elect or otherwise take any action to cause such
partnership interests or limited liability company interests to be
treated as securities for purposes of the UCC unless such Grantor shall
take all steps necessary to establish Collateral Trustee’s “control”
thereof;
	 
	 	(B)	 	it shall report to the Collateral Trustee the
acquisition of any new Material Investment Property not previously
disclosed hereunder promptly following the acquisition thereof by
delivering to Collateral Trustee a completed Security Agreement
Supplement, substantially in the form of Exhibit A attached
hereto, together with a supplement to Schedule 4.3, reflecting
such new Investment Property. To the extent that any Investment
Property specified on such Schedule 4.3 constitutes
certificated Capital Stock of a Subsidiary or Material certificated
Securities, such Grantor shall deliver such certificates to the
Collateral Trustee, together with undated stock powers executed in
blank. Notwithstanding the foregoing, it is understood and agreed that
the security interest of Collateral Trustee shall attach to all
Investment Property immediately upon any Grantor’s acquisition of
rights therein and shall not be affected by the failure of any Grantor
to deliver a supplement to Schedule 4.3 as required hereby;
	 
	 	(C)	 	in the event such Grantor receives any
dividends, interest, distributions or any securities or other property
on account of any Collateral, then such dividends, interest,
distributions, securities and other property shall be included in the
definition of Collateral without further action; and










 



16








	 	(D)	 	each Grantor consents to the grant by any other
Grantor of a security interest in all Investment Property to Collateral
Trustee.





     (c) Voting and Distributions.




	 	(A)	 	So long as no Event of Default shall have
occurred and be continuing. subject to applicable laws:






	 	(A)	 	each Grantor shall be entitled to
exercise or refrain from exercising any and all voting and otter
consensual rights pertaining to the Investment Property or any
part thereof for any purpose not inconsistent with the terms of
this Agreement or any Secured Agreement; and
	 
	 	(B)	 	Collateral Trustee shall promptly
execute and deliver (or cause to be executed and delivered) to
each Grantor all proxies and other instruments as such Grantor
may from time to time reasonably request for the purpose of
enabling such Grantor to exercise the voting and other
consensual rights it is entitled to exercise pursuant to clause
(A) above.






	 	(B)	 	Upon the occurrence and during the continuation
of an Event of Default, subject to applicable laws and the terms of the
Indenture:






	 	(A)	 	all rights of each Grantor to
exercise or refrain from exercising the voting and other
consensual rights which it would otherwise be entitled to
exercise pursuant hereto shall cease and all such rights shall
thereupon become vested in Collateral Trustee who shall
thereupon have the sole right to exercise such voting and other
consensual rights; and
	 
	 	(B)	 	in order to permit Collateral
Trustee to exercise the voting and other consensual rights which
it may be entitled to exercise pursuant hereto and to receive
all dividends and other distributions which it may be entitled
to receive hereunder: (1) each Grantor shall promptly execute
and deliver (or cause to be executed and delivered) to
Collateral Trustee all proxies, dividend payment orders and
other instruments as necessary or as Collateral Trustee (at the
written direction of the Secured Parties) may from time to time
reasonably request and (2) each Grantor acknowledges that
Collateral Trustee may utilize the power of attorney set forth
in Section 6.





4.4  Documents, Chattel Paper, Instruments and Deposit Accounts.










 



17




          (a) If requested by the Collateral Trustee in writing (such request to be given at the written
direction of the Holders), each Grantor shall deliver to the Collateral Trustee all Collateral
consisting of Material Documents, Material Chattel Paper, Material promissory notes and Material
Instruments (in each case, accompanied by stock powers, allonges or other instruments of transfer
executed in blank, as applicable) promptly after such Grantor receives the same.




          (b) If requested by the Collateral Trustee in writing (such request to be given at the written
direction of the Holders), each Grantor shall use commercially reasonable efforts (which shall be
deemed to not include any obligation to pay money to any third party other than reasonable
attorney’s fees and expenses of the third party or other de minimus payments) to obtain
authenticated control agreements from each issuer of uncertificated Securities, securities
intermediary, or commodities intermediary issuing or holding any Material Financial Assets for the
account of such Grantor.




          (c) If requested by the Collateral Trustee in writing (such request to be given at the written
direction of the Holders), each Grantor shall use commercially reasonable efforts (which shall
include customary fees charged by third parties that act as intermediaries but shall not be deemed
to include any obligation to pay money to any third party other than reasonable attorney’s fees and
expenses of the third party or other de minimus payments) to obtain a control agreement with each
bank or financial institution holding a Material Deposit Account for such Grantor, which agreement
shall be in form and substance reasonably satisfactory to the Collateral Trustee.




          (d) Each Grantor shall take all steps necessary to grant the Collateral Trustee control of all
Material electronic chattel paper in accordance with the UCC.




          (e) Each Grantor hereby represents and warrants, on the date hereof, that Schedule
4.4(e) sets forth all Material Commercial Tort Claims held by such Grantor against third
parties. If requested by the Collateral Trustee in writing (such request to be given at the written
request of the Holders), each Grantor shall identify any new Material Commercial Tort Claims held
by it at such time and shall deliver a completed Security Agreement Supplement, substantially in
the form of Exhibit A attached hereto, together with a supplement to Schedule
4.4(e) identifying such new Commercial Tort Claims.



Upon the occurrence and during the continuance of an Event of Default, each Grantor shall not,
without the Collateral Trustee’s prior written consent (such consent to be given at the written
direction of the Holders), grant any extension of the time of payment for any of the Accounts,
compromise, compound or settle the same for less than the full amount thereof, release, wholly or
partly, any Person liable for the payment thereof or allow any credit or discount whosoever
thereon, other than extensions, credit, discounts, compromises or settlements granted or made in
the ordinary course of business and consistent with its current practices and in accordance with
prudent and standard practices used in the industry in which such Grantor is engaged.




5. FURTHER ASSURANCES.




     5.1  Further Assurances









 



18


          (a) Each Grantor agrees. that from time to time, at the expense of such Grantor, it shall
promptly execute and deliver all further instruments and documents, and take all further action,
that may be necessary or reasonably requested by Collateral Trustee (such request to be given at
the written request of the Secured Parties) in order to create and/or maintain the validity,
perfection or priority of and protect or enforce any security interest granted or purported to be
granted hereby or to enable Collateral Trustee to exercise and enforce its rights and remedies
hereunder with respect to any Collateral; provided, however, that (i) so long as no
Default of Event of Default shall have occurred and be continuing, such Grantor shall not be
required to take any actions to perfect or protect the security interest granted hereunder or
enable the Collateral Trustee to exercise and enforce its rights and remedies with respect to the
Collateral other than as is expressly required pursuant to Sections 4.1, 4.2,
4.3 and 4.4 hereof and (ii) in no event shall such Grantor be obligated to obtain
consents, waivers, acknowledgment or access agreements from any landlord, bailee or other similar
party. Without limiting the generality of the foregoing, each Grantor shall:





	 	(A)	 	at any reasonable time and upon reasonable
notice by Collateral Trustee, exhibit the Collateral to and allow
inspection of the Collateral by Collateral Trustee, or persons
designated by Collateral Trustee; and
	 
	 	(B)	 	appear in and defend any action or proceeding
that may affect Grantor’s title to or Collateral Trustee’s security
interest in all or any part of the Collateral.





          (b) Each Grantor hereby authorizes Collateral Trustee to file a Record or Records, including,
without limitation, financing or continuation statements, and amendments thereto, in all
jurisdictions and with all filing offices as are necessary or advisable to perfect the security
interest granted to Collateral Trustee herein, and the Collateral Trustee hereby authorizes each
Grantor to make any such filings contemplated by this Section 5.1(b). Such financing
statements may describe the Collateral in the same manner as described herein or may contain an
indication or description of collateral that describes such property in any other manner as is
necessary, advisable or customary to ensure the perfection of the security interest in the
Collateral granted to Collateral Trustee herein. Each Grantor shall, promptly upon request by
Collateral Trustee (such request to be given at the written request of the Holders), furnish to
Collateral Trustee statements and schedules further identifying and describing the Collateral, all
in reasonable detail.




          (c) Each Grantor hereby authorizes Collateral Trustee to modify this Agreement after obtaining
such Grantor’s approval of or signature to such modification by amending Schedule 4.2 to
include reference to any right, title or interest in any existing Intellectual Property or any
Intellectual Property acquired or developed by any Grantor after the execution hereof or to delete
any reference to any right, title or interest in any Intellectual Property in which any Grantor no
longer has or claims any right, title or interest; provided such approval or signature of Grantor
shall not be required so long as an Event of Default exists.










 



19




6. ATTORNEY-IN-FACT.




     6.1  Power of Attorney. Each Grantor hereby irrevocably appoints Collateral Trustee
(such appointment being coupled with an interest) as such Grantor’s attorney-in-fact, with full
authority in the place and stead of such Grantor and in the name of such Grantor then in effect,
from time to time in its discretion to take any action permitted under this Agreement and to
execute any instrument that it may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation, the following:



          (a) upon the occurrence and during the continuance of any Event of Default, to obtain and
adjust insurance required to be maintained by Grantors pursuant to the Secured Agreements;




          (b) upon the occurrence and during the continuance of any Event of Default, to ask for,
demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any of the Collateral;




          (c) upon the occurrence and during the continuance of any Event of Default, to receive,
endorse and collect any drafts or other instruments, documents and chattel paper in connection with
clause (b) above, subject in all respects to the rights of any lender under the Credit Agreement to
receive, endorse and collect the same;




          (d) upon the occurrence and during the continuance of any Event of Default, to file any claims
or take any action or institute any proceedings necessary or desirable for the collection of any of
the Collateral or otherwise to enforce the rights of Collateral Trustee with respect to any of the
Collateral;




          (e) to prepare and file any UCC financing statements against such Grantor as debtor;




          (f) to prepare, sign, and file for recordation in any intellectual property registry,
appropriate evidence of the lien and security interest granted herein in the Intellectual Property
in the name of such Grantor as assignor;




          (g) to take or cause to be taken all actions necessary to perform or comply or cause
performance or compliance with the terms of this Agreement, including, without limitation, access
to pay or discharge taxes or Liens (other than Permitted Liens) levied or placed upon or threatened
against the Collateral, the legality or validity thereof and the amounts necessary to discharge the
same, any such payments made by Collateral Trustee to become obligations of such Grantor to
Collateral Trustee, due and payable immediately without demand; and




          (h) upon the occurrence and during the continuance of any Event of Default and subject to the
provisions of the UCC, generally to sell, transfer, pledge, make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though Collateral Trustee were
the absolute owner thereof for all purposes, and to do, at Collateral Trustee’s option ,and such
Grantor’s expense, at any time or from time to time, all acts and things necessary to protect,
preserve or realize upon the Collateral and Collateral Trustee’s










 



20



security interest therein in order to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.




     6.2  No Duty on the Part of Collateral Trustee. The powers conferred on Collateral
Trustee hereunder are solely to protect the interests of Collateral Trustee in the Collateral and
shall not impose any duty upon Collateral Trustee to exercise any such powers. Collateral Trustee
shall be accountable only for amounts that it actually receives as a result of the exercise of such
powers, and neither it nor any of its officers, directors, employees or agents shall be responsible
to any Grantor for any act or failure to act hereunder, except for their own gross negligence or
willful misconduct. No provision of this Agreement shall require Collateral Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.



7. REMEDIES.




     7.1  Generally.



          (a) Upon the occurrence and during the continuation of any Event of Default, Collateral
Trustee may, subject to the requirements of the Indenture and applicable law, including regulatory
requirements, exercise any and all remedies and other rights provided under this Agreement and by
applicable law, including, without limitation, the following:





	 	(A)	 	require Grantors to, and Grantors hereby agree
that they shall at their expense and promptly upon request of
Collateral Trustee forthwith, assemble all or part of the Collateral as
directed by Collateral Trustee and make it available to Collateral
Trustee at a place to be designated by Collateral Trustee that is
reasonably convenient to all parties;
	 
	 	(B)	 	enter onto the property where any Collateral is
located and take possession thereof with or without judicial process if
such may be done without a breach of the peace; and
	 
	 	(C)	 	prior to the disposition of the Collateral,
store, process, repair or recondition the Collateral or otherwise
prepare the Collateral for disposition in any manner to the extent
Collateral Trustee may deem commercially reasonable.





          (b) The Collateral Trustee may exercise in respect of the Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it, all the rights and remedies
of a secured party upon default under the UCC or any other applicable laws and also may without
notice, except as specified below, sell, lease, assign, grant an option or options to purchase or
otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange, broker’s board or at any of Collateral Trustee’s offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as Collateral Trustee may deem
commercially reasonable. Each Grantor agrees that, to the extent





 











 





 21



notice of sale shall be required by law, at least ten days’ notice to the each Grantor of the
time and place of any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Collateral Trustee shall not be obligated to make any sale
of Collateral regardless of notice of sale having been given. The Collateral Trustee may adjourn
any public or private sale from time to time by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the time and place to which it was so
adjourned.




               (c) All amounts and proceeds (including checks and other instruments) received by any Grantor
in respect of amounts due to such Grantor in respect of the Collateral or any portion thereof
following the occurrence and during the continuance of an Event of Default shall be received in
trust for the benefit of Collateral Trustee, shall be segregated from other funds of such Grantor
and shall be forthwith paid over or delivered to Collateral Trustee in the same form as so received
(with any necessary endorsement) to be held as cash Collateral and applied as provided by
Section 7.2 following the occurrence and during the continuance of an Event of Default.
Upon demand from Collateral Trustee, Grantors shall not adjust, settle or compromise the amount or
payment of any such amount or release wholly or partly any obligor with respect thereto or allow
any credit or discount thereon.



               (d) Each Grantor hereby expressly waives and covenants not to assert any appraisement,
valuation, extension, redemption or similar laws, now or at any time hereafter in force, which
might delay, prevent or otherwise impede the performance or enforcement of this Agreement.



     7.2 Application of Proceeds. Any cash held by Collateral Trustee as Collateral and
all cash proceeds received by Collateral Trustee in respect of any sale of, collection from or
other realization upon all or any part of the Collateral shall be held by Collateral Trustee as
Collateral for, and then or at any time thereafter applied (after the payment of any amounts
payable to Collateral Trustee pursuant to Section 11.2 hereof) in whole or in part by
Collateral Trustee for the benefit of the Secured Parties against the Secured Obligations in such
order of application as is required by the Indenture. Any surplus of such cash or cash proceeds
held by Collateral Trustee and remaining after payment of all of the Secured Obligations shall be
paid over to the Grantors or to whomsoever may be lawfully entitled to receive such surplus.



     7.3 Investment Property. Each Grantor acknowledges and agrees that Collateral
Trustee may elect, with respect to the offer or sale of any or all of the Collateral constituting
Investment Property or Securities, to conduct such offer and sale in such a manner as to avoid the
need for registration or qualification of the Collateral or the offer and sale thereof under any
federal or state securities laws and that Collateral Trustee is authorized to comply with any
limitation or restriction in connection with such sale as counsel may advise Collateral Trustee is
necessary in order to avoid any violation of applicable law or avoid obtaining approval of the sale
or of the purchaser by any Governmental Body, including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders and purchasers, requiring that such
prospective bidders and purchasers have certain qualifications, and restricting such prospective
bidders and purchasers to Persons who will represent and agree that they are purchasing for their
own account for investment and not with a view to the distribution or resale of such Collateral,
Each Grantor further acknowledges and agrees that any such transaction may be at prices and on









 



22



terms less favorable than those which may be obtained through a public sale and not subject to
such restrictions and agrees that, notwithstanding the foregoing, Collateral Trustee is under no
obligation to conduct any such public sale and may elect to impose any or all of the foregoing
restrictions, or any other restrictions which may be necessary or desirable in order to avoid any
such registration or qualification, at its sole discretion or with the consent or direction of the
Secured Parties.



     7.4 Intellectual Property.



               (a) Anything contained herein to the contrary notwithstanding, upon the occurrence and during
the continuation of an Event of Default:




	 	(A)	 	Collateral Trustee shall have the right (but
not the obligation) to bring suit or otherwise commence any action or
proceeding in the name of any Grantor, Collateral Trustee or otherwise,
in Collateral Trustee’s sole discretion, to enforce any Intellectual
Property which is material to such Grantor’s business, in which event
such Grantor shall, at the request of Collateral Trustee, do any and
all lawful acts and execute any and all documents required by
Collateral Trustee in aid of such enforcement and such Grantor shall
promptly, upon demand, reimburse and indemnify Collateral Trustee as
provided in Section 10 hereof in connection with the exercise
of its rights under this Section, and, to the extent that Collateral
Trustee shall elect not to bring suit to enforce any Intellectual
Property which is material to such Grantor’s business as provided in
this Section, such Grantor agrees to use all reasonable measures,
whether by action, suit, proceeding or otherwise, to prevent the
infringement of any such Intellectual property by others and for that
purpose agrees to diligently maintain any action, suit or proceeding
against any Person so infringing as shall be necessary to prevent such
infringement;
	 
	 	(B)	 	upon written demand from Collateral Trustee,
each Grantor shall grant, assign, convey or otherwise transfer to
Collateral Trustee all of such Grantor’s right, title and interest in
and to the Intellectual Property and shall execute and deliver to
Collateral Trustee such documents as are necessary or appropriate to
carry out the intent and purposes of this Agreement;
	 
	 	(C)	 	each Grantor agrees that such an assignment
and/or recording shall be applied to reduce the Secured Obligations
outstanding only to the extent that Collateral Trustee receives cash
proceeds in respect of the sale of, or other realization upon, the
Intellectual Property; and
	 
	 	(D)	 	Collateral Trustee shall have the right to
notify, or require each Grantor to notify, any obligors with respect to
amounts due or to










 



23


	 	 	 	become due to such Grantor in respect of the Intellectual Property,
of the existence of the security interest created herein, to direct
such obligors to make payment of all such amounts directly to
Collateral Trustee, and, upon such notification and at the expense of
such Grantor, to enforce collection of any such amounts and to
adjust, settle or compromise the amount or payment thereof, in the
same manner and to the same extent as such Grantor might have done.





               (b) If (i) an Event of Default shall have occurred and no longer be continuing, (ii) no other
Event of Default shall have occurred and be continuing, (iii) an assignment or other transfer to
Collateral Trustee of any rights, title and interests in and to the Intellectual Property shall
have been previously made and shall have become absolute and effective, and (iv) the Secured
Obligations shall not have become immediately due and payable, upon the written request of any
Grantor, Collateral Trustee shall promptly execute and deliver to such Grantor, at such Grantor’s
sole cost and expense, such assignments or other transfers as may be necessary to reassign to such
Grantor any such rights, title and interests as may have been assigned to Collateral Trustee as
aforesaid, subject to any disposition thereof that may have been made by Collateral Trustee;
provided, after giving effect to such reassignment, Collateral Trustee’s security interest
granted pursuant hereto, as well as all other rights and remedies of Collateral Trustee granted
hereunder, shall continue to be in full force and effect; and provided further, the rights, title
and interests so reassigned shall be free and clear of any Liens granted by or on behalf of
Collateral Trustee.



               (c) Solely for the purpose of enabling Collateral Trustee to exercise rights and remedies
under this Section 7 and at such time as Collateral Trustee shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to Collateral Trustee, to the extent
it has the right to do so an irrevocable, nonexclusive license (exercisable without payment of
royalty or other compensation to such Grantor), subject, in the ease of Trademarks, to sufficient
rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation
of said Trademarks, to use, operate under, license, or sublicense any Intellectual Property now
owned or hereafter acquired by such Grantor, and wherever the same may be located.



     7.5 FCC Licenses.



               Notwithstanding anything to the contrary contained in this Agreement or the Indenture, to the
extent that any FCC license is included in the Collateral, the Collateral Trustee will not take any
action pursuant to any document referred to above which would constitute or result in any
assignment of any FCC license or any change of control (whether de jure or de facto) of any Grantor
or subsidiary of any Grantor if such assignment of any FCC license or change of control would
require, under then existing law, the prior approval of the FCC without first obtaining such prior
approval of the FCC. Upon the occurrence of an Event of Default or at any time thereafter during
the continuance thereof, subject to terms and conditions of this Agreement, each Grantor agrees to
take any action that Collateral Trustee may reasonably request in order to obtain from the FCC such
approval as may be necessary to enable Collateral Trustee to exercise and enjoy the full rights and
benefits granted to Collateral Trustee by this Agreement and the other documents referred to above,
including specifically, at the cost and









 



24



expense of each Grantor, the use of its best efforts to assist in obtaining approval of the
FCC for any action or transaction contemplated by this Agreement for which such approval is or
shall be required by law, and specifically, without limitations, upon request, to prepare, sign and
file with the FCC the assignor’s or transferor’s portion of any application or applications for
consent to the assignment of license or transfer of control necessary or appropriate under the
FCC’s rules and regulations for approval of (i) any sale or other disposition of the Collateral by
or on behalf of Collateral Trustee, or (ii) any assumption by Collateral Trustee of voting rights
in the Collateral effected in accordance with the terms of this Agreement. It is understood and
agreed that all foreclosure and related actions will be made in accordance with the Communications
Act and other applicable FCC regulations and published policies and decisions.



8. CONTINUING SECURITY INTEREST; TERMINATION AND RELEASE.




               (a) This Agreement shall create a continuing security interest in the Collateral and shall (i)
remain in full force and effect until the payment in full of all of the Secured Obligations, (ii)
be binding upon the each Grantor, its successors and assigns and (iii) inure, together with the
rights and remedies of Collateral Trustee hereunder, to the benefit of Collateral Trustee, the
Secured Parties and their respective successors, transferees and assigns.



               (b) Subject to Section 314(d) of the Trust Indenture Act of 1939, notwithstanding anything to
the contrary in this Section 8, (i) the security interests created under this Agreement
shall terminate upon the discharge of the Note Guarantee by the Subsidiary Grantors and the release
of the Note Guarantee with respect to the Notes related thereto, pursuant to Section 3.5 of the
Indenture, and (ii) the security interests created under this Agreement with respect to any
Collateral that is permitted to be released pursuant to Section 12.5 of the Indenture shall
automatically be released and, in each case, the Collateral Trustee shall, at the request and
expense of any Grantor (and, if requested by the Collateral Trustee, upon the delivery of an
officer’s certificate by the Company certifying that such release is permitted under the Secured
Agreements), cause to be assigned, transferred and delivered, against receipt but without recourse,
warranty or representation whatsoever, all Collateral subject to such termination or release, as
applicable, to or on the order of such Grantor, and shall execute and deliver to such Grantor at
Grantor’s expense such documents and instruments as such Grantor may reasonably request to evidence
the release of such Collateral from the Lien of this Agreement, including, without limitation, any
UCC termination statements and any filings with the United States Patent and Trademark Office or
the United States Copyright Office.



9. STANDARD OF CARE; SECURED PARTY MAY PERFORM.




               The powers conferred on Collateral Trustee hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care in the custody of any Collateral in its possession and the accounting
for moneys actually received by it hereunder, Collateral Trustee shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. The Collateral Trustee shall be deemed to have
exercised reasonable care in the custody and preservation of Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which Collateral Trustee accords its
own similar property. None of the Collateral Trustee, any Secured Party or any of their









 



25



respective directors, officers, employees or agents shall be liable for failure to demand.
collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor
or otherwise. If any Grantor fails to perform any agreement contained herein, Collateral Trustee
may itself perform, or cause performance of, such agreement, and the expenses of Collateral Trustee
incurred in connection therewith shall be payable by each Grantor under Section 11.2
hereof. The Collateral Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.



10. INDEMNITY.




               (a) Each Grantor agrees to jointly and severally indemnify and hold harmless Collateral
Trustee and the Secured Parties, the respective affiliates of Collateral Trustee and the Secured
Parties, and the respective officers, directors, employees, agents (including, without limitation
each of their counsel), and controlling persons of Collateral Trustee and the Secured Parties, and
each such affiliate (each, an “Indemnified Party”) from and against any and all claims,
actions and suits whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and costs and expenses (including, without limitation, the reasonable fees and
disbursements of counsel and with respect to Collateral Trustee, reasonably allocated costs and
expenses of in-house counsel and legal staff) of every nature and character arising out of or in
connection with any actual or threatened claim, litigation, investigation or proceeding relating to
this Agreement or the Secured Agreements or the transactions contemplated hereby or thereby (other
than any such actions or expenses resulting, as determined by a final order of a court of competent
jurisdiction, from the gross negligence or willful misconduct of the Indemnified Party seeking
indemnification hereunder), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of in-house counsel and legal staff incurred in
connection with any such claim investigation, litigation or other proceeding whether or not such
Indemnified Party is a party thereto, and each Grantor agrees to reimburse each Indemnified Party,
upon demand, for all out-of-pocket costs and expenses (including, without limitation, the
reasonable fees and disbursements of counsel and with respect to Collateral Trustee and the Secured
Parties, reasonably allocated costs and expenses of in-house counsel and legal staff) incurred in
connection with any of the foregoing. In litigation, or the preparation therefor, Indemnified
Parties shall each be entitled to select their own counsel and, in addition to the foregoing
indemnity, each Grantor agrees to pay promptly the reasonable fees and expenses of such counsel.
If, and to the extent that the obligations of any Grantor under this Section 10 are unenforceable
for any reason, such Grantor hereby agrees to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable law.



               (b) No Grantor shall make any claim against any Indemnified Party for any special, indirect or
consequential damages in respect of any breach or wrongful conduct (whether the claim therefor is
based in contract, tort or duty imposed by law) in connection with, arising out of or in any way
related to the transactions contemplated by, and the relationship established by the Secured
Agreements, or any act, omission or event occurring in connection therewith, and









 



26



hereby waives, releases and agrees not to sue upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in such Grantor’s favor.



               (c) The covenants contained in this Section 10 shall survive payment or satisfaction in full
of all other of the Secured Obligations.



11. MISCELLANEOUS.




     11.1 Notices. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given to a Grantor or Collateral Trustee shall be
sent to such Person’s address as set forth in the Indenture. All such notices and other
communications shall, when mailed or telecopied, be effective when deposited in the mails or
transmitted by telecopier, respectively.



     11.2 Expenses. Each Grantor will upon demand make payment to Collateral Trustee of
any and all reasonable out-of-pocket sums, costs and expenses, which Collateral Trustee may pay or
incur pursuant to the provisions of this Agreement or in perfecting, defending, protecting or
enforcing this Agreement or the security interests granted herein or in enforcing payment of all of
the Secured Obligations or otherwise in connection with the provisions hereof, including, but not
limited to court costs, reasonable collection charges, reasonable travel expenses, and reasonable
attorneys’ fees and expenses (including with respect to Collateral Trustee, the reasonable
allocated posts and expenses of in-house counsel and legal staff) all of which together with
interest at the highest rate then payable under the Indenture, shall be part of the Secured
Obligations. The covenants in this Section 11.2 shall survive payment or satisfaction in full of
all other of the Secured Obligations.



     11.3 Amendments and Waivers. Subject to the requirements of Article 11 of the
Indenture, any consent or approval required or permitted by this Agreement to be given by
Collateral Trustee may be given, and any term of this Agreement, may be amended, and the
performance or observance by the Grantors of any terms of this Agreement, or the continuance of any
Default or Event of Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the Grantors and the
written consent of Collateral Trustee. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of dealing or delay or omission
on the part of Collateral Trustee or any Secured Party in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Grantors shall
entitle the Grantors to other or further notice or demand in similar or other circumstances. Upon
the delivery of any Security Agreement Supplement, the supplemental schedules thereto shall be
incorporated into and become a part of and supplement the respective schedules to this Agreement;
and each reference to such Schedules shall mean and be a reference to such Schedules as
supplemented pursuant to such Security Agreement Supplement.



     11.4 Successors and Assigns. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns including all persons who become bound as Grantor to
this Agreement. No Grantor shall, except as permitted under the Secured Agreements, assign any
right, duty or obligation hereunder.









 



27


     11.5 Independence of Covenants. All covenants hereunder shall have given independent
effect so that if a particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within the limitations
of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.



     11.6 Survival of Representations, Warranties and Agreements. All representations,
warranties and agreements made herein shall survive the execution and delivery hereof.
Notwithstanding anything herein or implied by law to the contrary, the agreements of Grantors set
forth in Sections 10 and 11.2 shall survive the payment of the Secured Obligations
under the Indenture and the termination hereof.



     11.7 No Waiver; Remedies Cumulative. No failure or delay on the part of Collateral
Trustee in the exercise of any power, right or privilege hereunder or under any Secured Agreement
shall impair such power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege. All
rights, powers and remedies existing under this Agreement and the Secured Agreements are
cumulative, and not exclusive of, any rights or remedies otherwise available, Any forbearance or
failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not
impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.



     11.8 Marshaling; Payments Set Aside. The Collateral Trustee shall not be under any
obligation to marshal any assets in favor of any Grantor or any other Person or against or in
payment of any or all of the Secured Obligations.



     11.9 Severability. In case any provision in or obligation hereunder shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.



     11.10 Headings. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or be given any
substantive effect.



     11.11 Applicable law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to any conflicts of laws
principles thereof other than New York General Obligations Law Sections 5-1401 and 5-1402.



     11.12 Consent To Jurisdiction. Each Grantor agrees to irrevocably appoint CT
Corporation System or another similar Person in New York, New York as its authorized agent for
service of process. Each Grantor submits to the non-exclusive jurisdiction of the courts of the
State of New York and the courts of the United States of America, in each case located in the
Borough of Manhattan, New York, New York over any suit, action or proceeding arising under or in
connection with this Indenture or the transactions contemplated hereby or the Notes or the









 



28



Note Guarantees. Each Grantor waives any objection that it may have to the venue of any suit,
action or proceeding arising under or in connection with this Agreement, the Indenture, the
Security Documents or the transactions contemplated hereby or the Notes or the Note Guarantees in
the courts of the State of New York or the courts of the United States of America, in each case
located in the Borough of Manhattan, New York, New York, or that such suit, action or proceeding
brought in the courts of the State of New York or the courts of the United States of America, in
each case located in the Borough of Manhattan, New York, New York, was brought in an inconvenient
court and agrees not to plead or claim the same.



     11.13 Waiver of Jury Trial. Each of the Grantors hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement, the Indenture, the Notes, the Note
Guarantees, the Security Documents or the transaction contemplated hereby.



     11.14 Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



     11.15 Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Collateral Trustee of written or
telephonic notification of such execution and authorization of delivery thereof.



     11.16 Entire Agreement. This Agreement and the Indenture embody the entire agreement
and understanding between Grantors and Collateral Trustee and supersede all prior agreements and
understandings between such parties relating to the subject matter hereof and thereof. There are no
unwritten oral agreements between the parties.



     11.17 Trust Indenture Act Controls. If any provision of this Agreement limits,
qualifies or conflicts with the duties imposed by the Trust Indenture Act of 1939 as in effect on
the date of this Agreement, the imposed duties shall control.



(Remainder of page intentionally left blank; signature page follows]










 



29




               IN WITNESS WHEREOF, Grantors and Collateral Trustee have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as of the date first
written above.



	 	 	 	 	 
	 	XM 1500 ECKINGTON LLC.

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	Secretary 	 
	 
	 	XM INVESTMENT LLC

 	 
	 	By:  	/s/ Patrick L. Donnelly
 	 
	 	 	Name:  	Patrick L. Donnelly 	 
	 	 	Title:  	Secretary 	 
	 














 



30







(Continuation of Signature Page)




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Collateral Trustee

 	 
	 	By:  	/s/ Thomas E. Tabor
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 










 



 


SCHEDULE 1.1

TO SECURITY AGREEMENT




Current FCC Licenses, Special Temporary Authorizations

(“STAs”), and Pending Applications





	1.	 	Satellite





None





	2.	 	Earth Stations





None





	3.	 	Terrestrial Repeaters





None





	4.	 	Experimental Licenses to Test Terrestrial Repeaters





None










 



 


SCHEDULE 4.1

TO SECURITY AGREEMENT




Financing Statement Filing Offices:




	 	 	 
	Name of Grantor	 	Filing Jurisdiction(s)
	XM 1500 Eckington LLC

	 	Secretary of State of the State of Delaware
	 
	XM Investment LLC

	 	Secretary of State of the State of Delaware












 



 


SCHEDULE 4.2

TO SECURITY AGREEMENT




INTELLECTUAL PROPERTY





	A.	 	Copyrights:





No registered copyrights.





	B.	 	Patents:





No registered patents.





	C.	 	Federally Registered Trademarks/Service Marks, and Trademark/Service Mark Applications:





No registered trademarks or applications.










 



 


SCHEDULE 4.3

TO SECURITY AGREEMENT




MATERIAL INVESTMENT PROPERTY




Pledged Stock:




None.




Pledged Partnership Interests:




None.




Pledged LLC Interests:




None.




Pledged Debt:




None.










 



 


SCHEDULE 4.4(e)

TO SECURITY AGREEMENT




COMMERCIAL TORT CLAIMS




None.










 



 


EXHIBIT A

TO SECURITY AGREEMENT




FORM OF SECURITY AGREEMENT SUPPLEMENT




     This SECURITY AGREEMENT SUPPLEMENT, dated [mm/dd/yy] (the “Supplement”), is delivered
pursuant to the Security Agreement, dated as of February 13, 2009, made among XM 1500 ECKINGTON
LLC, XM INVESTMENT LLC and U.S. Bank National Association, as Collateral Trustee. Capitalized
terms used herein not otherwise defined herein shall have the meanings ascribed thereto in the
Security Agreement. This Supplement is being delivered pursuant to Section [___]1 of the
Security Agreement.



     Grantor hereby confirms, as of the date first written above, the grant to Collateral Trustee
set forth in the Security Agreement of, does hereby grant to Collateral Trustee, for the benefit of
itself and the Secured Parties, a security interest in all of Grantor’s right, title and interest
in and to all Collateral to secure the Secured Obligations, in each case whether now or hereafter
existing or in which Grantor now has or hereafter acquires an interest and wherever the same may be
located and hereby agrees, as of the date first above written, to continue to be bound as a Grantor
by all of the terms and provisions of the Security Agreement, as supplemented by this Security
Agreement Supplement. Grantor hereby represents and warrants that the attached Supplements to
Schedules accurately and completely set forth all additional information with respect to the
Grantor currently required pursuant to the Security Agreement and hereby agrees that such
Supplements to Schedules shall constitute part of the Schedules to the Security Agreement.



          IN WITNESS WHEREOF, Grantor has caused this Security Agreement Supplement to be duly executed
and delivered by its duly authorized officer as of [mm/dd/yy].




	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	Insert Section 4.1(b)(iii), 4.2(b)(iii), 4.3(b)(ii),
4.4(e), as applicable.












 



 


SUPPLEMENT TO SCHEDULE 4.1

TO SECURITY AGREEMENT




Additional Information:




Financing Statements:




	 	 	 
	Name of Grantor	 	Filing Jurisdiction(s)
	 
	 	 











 



 


SUPPLEMENT TO SCHEDULE 4.2

TO SECURITY AGREEMENT




Additional Information:





	(A)	 	Copyrights:
	 
	(B)	 	Patents:
	 
	(C)	 	Trademarks:











 



 


SUPPLEMENT TO SCHEDULE 4.3

TO SECURITY AGREEMENT




MATERIAL INVESTMENT PROPERTY










 



 


SUPPLEMENT TO SCHEDULE 4.3

TO SECURITY AGREEMENT




Additional Information:




Pledged Stock:




Pledged Partnership Interests:




Pledged LLC Interests:




Pledged Debt:










 



 


SUPPLEMENT TO SCHEDULE 4.4

TO SECURITY AGREEMENT




COMMERCIAL TORT CLAIMS











 



 




 10




SUPPLEMENT TO SCHEDULE 4.4(e)

TO SECURITY AGREEMENT




COMMERCIAL TORT CLAIMS