Exhibit 4.60
EXECUTION VERSION
THIRD AMENDMENT
TO SECURITY
AGREEMENT
This THIRD AMENDMENT TO SECURITY
AGREEMENT (this “ Amendment ”), dated as of
June 30, 2009, among XM Satellite Radio Inc., a Delaware
corporation (“ Company ”), XM Satellite Radio
Holdings Inc., a Delaware corporation, (“ Holdings
”), XM Equipment Leasing LLC, a Delaware limited liability
company (“ XM Leasing Subsidiary ”), XM Radio
Inc., a Delaware corporation (“ XM Radio ”), XM
EMall Inc., a Delaware corporation (“ XM EMall
”), XM Innovations Inc., a Delaware corporation (“
XM Innovations ”), XM Capital Resources Inc., a
Delaware corporation (“ XM Capital Resources ”),
Effanel Music, Inc., a New York corporation (“ Effanel
”, and, together with XM Radio, XM EMall, XM Innovations, and
XM Capital Resources, the “ Additional Subsidiaries
”) and U.S. Bank National Association (as successor in
interest to JPMorgan Chase Bank, N.A., the successor in interest to
The Bank of New York), acting as collateral agent (“
Collateral Agent ”).
WITNESSETH
WHEREAS, Company, Holdings, XM
Leasing Subsidiary, the Additional Subsidiaries and Collateral
Agent are parties to that certain Security Agreement, dated as of
January 28, 2003, as amended by the First Amendment to
Security Agreement, dated as of June 12, 2003, and as further
amended by the Second Amendment to Security Agreement, dated as of
March 6, 2009 (as amended by this Amendment, the “
Security Agreement ”);
WHEREAS, Company, Holdings, XM
Leasing Subsidiary, the Additional Subsidiaries and Collateral
Agent have agreed to amend the Security Agreement as set forth
herein; and
WHEREAS, Collateral Agent has been
instructed and authorized by the Required Secured Parties under the
Intercreditor Agreement to enter into this Amendment;
NOW, THEREFORE, subject to the terms
and conditions set forth below, it is agreed:
SECTION 1.
Definitions .
Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified in the Security Agreement.
SECTION 2. Amendments to
Security Agreement .
(a) The definition of “Acting
Secured Parties” set forth in Section 1.1 of the
Security Agreement is hereby amended and restated as
follows:
“Acting Secured Parties”
shall mean, as of any date of determination, the Secured Parties
holding more than 20% of the sum of (a) the unpaid principal
amount owing under the Convertible Notes, and (b) the unpaid
principal amount owing under the Additional Debt (if any), or, if
such debt is issued at a discount, the unpaid accreted value of
such Additional Debt.
(b) The definition of
“Collateral Agent” set forth in Section 1.1 of the
Security Agreement is hereby amended and restated as
follows:
“ Collateral Agent
” shall mean U.S. Bank National Association (as successor in
interest to JPMorgan Chase Bank, N.A., the successor in interest to
The Bank of New York), acting as collateral agent.
(c) Section 1.2 of the Security
Agreement is hereby amended and restated as follows:
“All capitalized terms used
herein (including the preamble and recitals hereto) and not
otherwise defined herein shall have the meanings ascribed thereto
in the Intercreditor Agreement 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. For
the avoidance of doubt, all notices, requests, directions demands
or other forms of communications delivered to the Collateral Agent
pursuant to this Agreement shall be in writing.
(d) Section 4.4(b) of the
Security Agreement is hereby amended and restated as
follows:
“(b) If requested by the
Collateral Agent in writing (such request to be given at the
written direction of the Acting Secured Parties), 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
