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SATELLITE SECURITY AGREEMENT
Between
FIRST TRUST NATIONAL ASSOCIATION
("Trustee")
and
ECHOSTAR DBS CORPORATION
("Grantor")
June 25, 1997
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This SECURITY AGREEMENT ("AGREEMENT"), dated as of June 25, 1997, by and
between FIRST TRUST NATIONAL ASSOCIATION, as secured party and as trustee for
the benefit of the holders of the Notes (as defined below) under the
Indenture (as defined below) (the "TRUSTEE"), and EchoStar DBS Corporation, a
Colorado corporation ("GRANTOR").
RECITALS
A. Pursuant to that certain Indenture dated as of June 25, 1997 by and
between Grantor, as issuer, and the Trustee, as trustee (the "INDENTURE"),
the Grantor has issued its Senior Secured Notes due 2002 ("NOTES").
B. Pursuant to a Satellite Escrow Agreement, the Grantor will be
entitled, subject to certain conditions, to draw certain proceeds from the
sale of the Notes for construction, launch or insurance of EchoStar IV (as
defined below).
C. The Grantor is a wholly-owned subsidiary of EchoStar Communications
Corporation ("ECHOSTAR").
D. The Indenture requires that Grantor execute and deliver this
Agreement.
AGREEMENT
In consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Grantor hereby agrees with the Trustee as follows:
1. DEFINITIONS. Unless otherwise defined, all terms used herein which
are defined in the Indenture shall have their respective meanings therein.
The following terms shall have the respective meanings given:
"COLLATERAL DOCUMENTS" has the meaning given in the Indenture.
"ECHOSTAR IV" means the communications satellite of the Grantor
described in the Offering Memorandum dated June 20, 1997 relating to the sale
of the Notes, as EchoStar IV.
"FCC" means the United States Federal Communications Commission.
"GOVERNMENTAL AUTHORITIES" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental or quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity, or any arbitrator
with authority to bind a party at law.
"PERSON" means any natural person, corporation, partnership, firm,
association, Governmental Authority, or any other entity whether acting in an
individual, fiduciary or other capacity.
"SATELLITE ESCROW AGREEMENT" means the Satellite Escrow Agreement dated
as of June 25, 1997 among First Trust National Association, as Escrow Agent
and Trustee, and Grantor.
2. ASSIGNMENT, PLEDGE AND GRANT OF SECURITY INTEREST.
(a) To secure the timely payment and performance of the Obligations (as
defined below), Grantor does hereby assign as collateral, grant a security
interest in, and pledge, to the Trustee, on behalf of the holders of the
Notes, all the estate, right, title and interest of Grantor, whether now
owned or hereafter acquired, in, to and under:
(i) EchoStar IV
(ii) the proceeds of the foregoing (the collateral described in
clause (i) being herein collectively referred to as the "COLLATERAL"),
including (A) all rights of Grantor to receive moneys due and to become due
under or pursuant to the Collateral, (B) all rights of Grantor to receive
return of any premiums for or proceeds of any insurance, indemnity, warranty
or guaranty with respect to the Collateral or to receive condemnation
proceeds and (C) to the extent not included in the foregoing, all proceeds
receivable or received when any and all of the foregoing Collateral is sold,
collected, exchanged or otherwise disposed, whether voluntarily or
involuntarily.
(b) Notwithstanding the foregoing grant, (i) the Trustee shall be
deemed to have released, without further action whatsoever, its security
interest in any asset the sale of which is not prohibited by the Indenture,
upon the sale of such asset, and (ii) the Trustee shall execute such
documents and instruments as shall be reasonably requested by Grantor to
effectuate the foregoing clause (i).
(c) Subject to the terms of the Indenture, upon the occurrence and
during the continuance of an Event of Default, Grantor does hereby constitute
the Trustee, acting for and on behalf of the Noteholders, the true and lawful
attorney of Grantor, irrevocably, with full power (in the name of Grantor or
otherwise) to ask, require, demand, receive, compound and give acquittance
for any and all moneys and claims for moneys due and to become due under or
arising out of the Collateral, including any insurance policies, to elect
remedies thereunder, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute
any proceedings in connection therewith which the Trustee may deem to be
necessary or advisable; provided, however, that the Trustee shall give
Grantor notice of any action taken by it as such attorney-in-fact promptly
after taking any such action.
3. OBLIGATIONS SECURED. This Agreement secures the payment and
performance of all obligations of the Grantor, now existing or hereafter
arising, under the Indenture (such obligations being herein called the
"OBLIGATIONS").
4. EVENTS OF DEFAULT. The occurrence of an Event of Default under
and as defined in the Indenture, whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body,
shall constitute an Event of Default hereunder.
5. REMEDIES.
(a) If any Event of Default has occurred and is continuing, the Trustee
may, subject to any applicable requirement of obtaining prior approval from
the FCC, and any applicable restrictions of the Communications Act and the
FCC Rules (i) declare the
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Notes to be due and payable immediately in accordance with the provisions of
the Indenture; (ii) proceed to protect and enforce the rights vested in it by
this Agreement, including the right to cause all revenues hereby pledged as
security and all other moneys pledged hereunder to be paid directly to it,
and to enforce its rights hereunder to such payments and all other rights
hereunder by such appropriate judicial proceedings as it shall deem most
effective to protect and enforce any of such rights, either at law or in
equity or otherwise, whether in aid of the exercise of any power therein or
herein granted, or for any foreclosure hereunder and sale under a judgment or
decree in any judicial proceeding, or to enforce any other legal or equitable
right vested in it by this Agreement or by law; (iii) cause any action at law
or suit in equity or other proceeding to be instituted and prosecuted to
collect or enforce any Obligations or rights included in the Collateral, or
to foreclose or enforce any other agreement or other instrument by or under
or pursuant to which such Obligations are issued or secured, subject in each
case to the provisions and requirements thereof; (iv) sell or otherwise
dispose of any or all of the Collateral or cause the Collateral to be sold or
otherwise disposed of in one or more sales or transactions, at such prices as
the Trustee may deem best, and for cash or on credit or for future delivery,
without assumption of any credit risk, at any broker's board or at public or
private sale, without demand of performance or notice of intention to sell or
of time or place of sale (except such notice as is required by applicable
statute, rule or regulation, including any applicable FCC regulation and
cannot be waived), it being agreed that the Trustee may bea purchaser on
behalf of the holders of Notes at any such sale and that the Trustee or
anyone else who may be the purchaser of any or all of the Collateral so sold
shall thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any equity of redemption, of Grantor, any such
demand, notice or right and equity being hereby expressly waived and released
to the extent permitted by law; (v) incur expenses, including attorneys'
fees, consultants' fees, and other costs appropriate to the exercise of any
right or power under this Agreement; (vi) perform any obligation of Grantor
hereunder or under any other agreement of Grantor, and make payments,
purchase, contest or compromise any Lien, and pay taxes and expenses,
without, however, any obligation so to do; (viii) take possession of the
Collateral and render it usable, and repair and renovate the same, without,
however, any obligation so to do, and enter upon any location where the same
may be located for that purpose, control, manage, operate, rent and lease the
Collateral, collect all rents and income from the Collateral and apply the
same to reimburse the Trustee and the holders of Notes for any cost or
expenses incurred hereunder or under the Indenture and to the payment or
performance of Grantor's obligations hereunder or under the Indenture, and
apply the balance to the Notes as provided in the Indenture and any remaining
excess balance to whomsoever is legally entitled thereto; (viii) secure the
appointment of a receiver of the assets of Grantor or any part thereof and/or
the Collateral or any part thereof; or (ix) exercise any other or additional
rights or remedies granted to a secured party under the Uniform Commercial
Code. If, pursuant to applicable law, rule or regulation prior notice of any
such action is required to be given to Grantor, Grantor hereby acknowledges
that the minimum time required by such applicable law, rule or regulation or
if no minimum is specified, ten (10) business days, shall be deemed a
reasonablenotice period.
(b) All costs and expenses (including reasonable attorneys' fees and
expenses) incurred by the Trustee in connection with any such suit or
proceeding, or in connection with the performance by the Trustee of any of
Grantor's agreements contained in any exercise of its rights or remedies
hereunder, together with interest thereon (to the extent permitted by law)
computed at a rate per annum equal to the interest rate on the Notes from the
date on which such costs or expenses are incurred to the date of payment
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thereof, shall constitute additional indebtedness secured by this Agreement
and shall be paid by Grantor to the Trustee on behalf of the Noteholders on
demand.
6. REMEDIES CUMULATIVE; DELAY NOT WAIVER.
(a) No right, power or remedy herein conferred upon or reserved to the
Trustee is intended to be exclusive of any other right, power or remedy, and
every such right, power and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy. Resort to any or all security now or hereafter held by the
Trustee, may be taken concurrently or successively and in one or several
consolidated or independent judicial actions or lawfully taken nonjudicial
proceedings, or both.
(b) No delay or omission of the Trustee to exercise any right or power
accruing upon the occurrence and during the continuance of any Event of
Default as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and every power and remedy given by this Agreement may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee.
7. COVENANTS. Grantor covenants as follows:
(a) Grantor will not directly or indirectly create, incur, assume or
suffer to exist any Liens (except for Permitted Liens) on or with respect to
any property or assets constituting a part of the Collateral and Grantor will
at its own cost and expense promptly take such action as may be necessary to
discharge any such Liens (other than Permitted Liens) on or with respect to
any properties or assets constituting a part of the Collateral.
(b) Any action or proceeding to enforce this Agreement may be taken by
the Trustee either in Grantor's name or in the Trustee's name, as the Trustee
may deem necessary.
(c) Grantor shall pay, before the imposition of any fine, penalty,
interest or cost attached thereto, all taxes, assessments and other
governmental or non-governmental charges or levies now or hereafter assessed
or levied against the Collateral or upon the security interest provided for
herein (except for Liens for taxes and assessments not then delinquent or
which Grantor may, pursuant to the definition of "Permitted Liens" in the
Indenture, permit to remain unpaid or any charge being contested in good
faith for which an adequate reserve has been established), as well as pay, or
cause to be paid, all claims for labor, materials or supplies which, if
unpaid, might become a prior Lien (other than a Permitted Lien) thereon.
(d) Grantor shall keep the Collateral and all systems relating to
operations of EchoStar IV, or cause the same to be kept, in good operating
condition consistent with reasonable and prudent business practices which, in
the case of EchoStar IV, shall be evidenced by the manufacturer's operating
manuals and practices of any service company retained by Grantor, all
applicable permits and applicable material legal requirements, and make or
cause to be made all possible repairs (structural and
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nonstructural, extraordinary or ordinary) necessary to keep the Collateral
and EchoStar IV systems in such condition. Grantor shall be deemed in
compliance with the requirements concerning the operation of EchoStar IV
under this section so long as Grantor and AT&T (or its affiliates) or another
recognized provider of telemetry, tracking and control services are parties
to an effective agreement under which AT&T (or its affiliates) or another
recognized provider of telemetry, tracking and control services provides
telemetry, tracking and control services for EchoStar IV (so long as EchoStar
IV is operational).
8. REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants
as follows:
(a) No effective financing statement or other instrument similar in
effect covering all or any part of Grantor's interest in the Collateral is on
file in any recording office, except such as may have been filed pursuant to
this Agreement or pursuant to the documents evidencing Permitted Liens. The
provisions of this Agreement are effective to create in favor of the Trustee
a valid security interest in the Collateral (to the extent that the Grantor
has rights therein) and, upon the filing of UCC-1 Financing Statements in the
filing offices identified on SCHEDULE I in respect of such portions of the
Collateral in which a security interest may be perfected as a result of such
filing, the Trustee will have a valid and perfected security interest in the
Collateral, to the extent that the Grantor has rights therein (other than
proceeds, to the extent Section 9-306 of the Uniform Commercial Code as in
effect in the relevant jurisdiction(s) is not complied with in respect to
such proceeds), subject to no other Liens except Permitted Liens (as defined
in the Indenture), and first priority except to the extent of Permitted Liens
described in the Indenture.
(b) Grantor is lawfully possessed of ownership of the Collateral
(provided that Grantor's rights in certain permits and licenses may, under
applicable law, not be characterized as ownership interests). Grantor has
full power and lawful authority to grant and assign the Collateral (as
collateral) hereunder. Grantor will, so long as any Obligations shall be
outstanding, warrant and defend its title to the Collateral against the
claims and demands of all Persons whomsoever.
(c) All subsidiaries of Grantor are listed in Paragraph 1 of SCHEDULE
II; all names of Grantor's predecessors-in-interest are listed in Paragraph 2
of SCHEDULE II; and all names under which Grantor does business are listed in
Paragraph 3 of SCHEDULE II.
(d) Grantor's place of business, or if Grantor has more than one place
of business, Grantor's chief executive office, is set forth in Paragraph 4 of
SCHEDULE II.
(e) Except for the filing or recording of the UCC Financing Statements
described in Section 8(b) and the notice requirements contained in any
applicable FCC regulation and except as otherwise described in Section 11, no
authorization, approval, or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required either (i) for the
grant by Grantor of the security interest in the Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement by
Grantor, or (ii) for the perfection of such security interest or the exercise
by the Trustee of the rights and remedies provided for in this Agreement.
(f) The execution, delivery and performance by Grantor of this
Agreement and the consummation of the transactions contemplated hereby
(including the
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creation of the Liens granted hereunder) will not (i) violate Grantor's
constituent organizational documents, (ii) violate any order, judgment or
decree of any Governmental Authorities binding on Grantor or any property or
assets of Grantor, (iii) violate or conflict with any law, rule, regulation,
or Permit applicable to Grantor or any of its properties, (iv) conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under any agreement, indenture, mortgage, deed of trust,
equipment lease, instrument or other document to which Grantor is a party or
pursuant to which any of its properties or assets are bound, (v) result in or
require the creation or imposition of any Lien upon any material properties
or assets of Grantor (other than the creation of the Liens granted
hereunder), or (vi) require any approval or consent of Grantor's owners;
PROVIDED, HOWEVER, that the exercise of security interests and/or of powers
granted the Trustee upon the Event of Default is subject to the requirements
and limitations of the Communications Act and the FCC Rules including,
without limitation, the requirement of obtaining prior FCC approval to any
transfer of control, as the term "control" is used in the Communications Act
and construed by the FCC, and the restrictions on alien ownership and control
established by the Communications Act and the FCC Rules.
9. FURTHER ASSURANCES.
(a) Grantor agrees that from time to time, at the expense of Grantor,
Grantor will promptly (i) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments, endorsements
or notices, and take such other actions, as may be reasonably necessary or as
the Trustee may reasonably request, in order to perfect and preserve the
assignments and security interests granted or purported to be granted hereby;
and (ii) if any Collateral shall be located outside the United States, but on
the Earth, while title therein is vested in Grantor, ensure that prior to
such time as such Collateral leaves the United States, all necessary steps
are taken to perfect the Trustee's security interest therein pursuant to
local law. Notwithstanding any other provision of this Agreement, the Grantor
shall not be required to perfect the Trustee's security interest in
jurisdictions located outside the United States, but on the Earth, except
that the Grantor shall exercise reasonable efforts to perfect the Trustee's
security interest in jurisdictions where the Grantor has major warehouses.
(b) Grantor hereby authorizes the Trustee to file one or more financing
or continuation statements, and amendments thereto, relative to all or any
part of the Collateral without the signature of Grantor where permitted by
law. Copies of any such statement or amendment thereto shall promptly be
delivered to Grantor.
(c) Grantor shall pay all filing, registration and recording fees or
refiling, re-registration and re-recording fees, and all expenses incident to
the execution and acknowledgment of this Agreement, any assurance, and all
federal, state, county and municipal stamp taxes and other taxes, duties,
imports, assessments and charges arising out of or in connection with the
execution and delivery of this Agreement, any agreement supplemental hereto
and any instruments of further assurance.
10. PLACE OF PERFECTION. Grantor shall give the Trustee at least
thirty (30) business days' notice before it changes the location of its chief
executive office, or its name, identity or structure, and shall at the
expense of Grantor execute and deliver such instruments and documents as are
required to maintain the priority and perfection of the security interest
granted hereby. Grantor shall not change the location of its principal place
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of business or chief executive office to any location outside of the United
States unless the Trustee is reasonably satisfied (based upon advice of legal
counsel) that the security interest created under this Agreement will not be
adversely affected or impaired.
11. FCC MATTERS.
(a) If an Event of Default shall have occurred and be continuing,
Grantor shall take any action which the Trustee may request in the exercise
of the Trustee's rights and remedies under this Agreement to transfer and
assign to the Trustee, or to such one or more third parties as the Trustee
may designate, or to a combination of the foregoing, the Collateral;
PROVIDED, HOWEVER, that the Trustee shall provide at least ten days' prior
written notice to the FCC and to the Pledgor before taking any action which
may result in repossession of any Pledged Collateral where required by FCC
rules and regulations and not waivable by Pledgor. To enforce the provisions
of this Section 11, the Trustee is hereby empowered to seek from the FCC any
approvals required by the Communications Act or the FCC rules and
regulations, including, but not limited to, approval of an involuntary
transfer of control of any FCC license for the purpose of seeking a BONA FIDE
purchaser to whom control of such license will ultimately be transferred.
Grantor hereby agrees to authorize such an involuntary transfer of control of
such FCC license upon the request of the Trustee. Upon the occurrence and
continuation of an Event of Default, Grantor shall use its best efforts to
assist in obtaining approval of the FCC, if required, for any action or
transactions contemplated by this Agreement, including the preparation,
execution and filing with the FCC of Grantor's portion of any application or
applications for consent to transfer of control necessary or appropriate
under the FCC's rules and regulations for approval of the transfer or
assignment of any portion of the Collateral.
(b) Grantor acknowledges that any necessary FCC approvals and FCC
authorization for the transfer of control of the licenses of Grantor are
integral to the Trustee's realization of the value of the Collateral for the
benefit of the holders of the Notes, that there is no remedy at law for
failure by Grantor to comply with the provisions of this Section 11 and that
such failure would not be adequately compensable in damages, and therefore
agrees that the agreements of Grantor contained in this Section 11 may be
specifically enforced.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Trustee shall not, without first obtaining approval of the
FCC, take any action pursuant to this Agreement, including, but not limited
to, any action which would constitute or result in any assignment of an FCC
license or transfer of control of Grantor if such action would require, under
then existing law (including the written rules and regulations of the FCC),
the prior approval of the FCC; nor shall any rights hereunder be deemed
vested in the Trustee if such vesting would require prior FCC approval or
would be deemed to result in an assignment of an FCC license or transfer of
control of Grantor, if such assignment or transfer would require the prior
approval of the FCC, unless and until such approval is obtained.
(d) Grantor consents to the transfer of control or assignment of the
Collateral to a receiver, trustee, transferee, or similar official or to any
purchaser of the Collateral pursuant to any public or private sale, judicial
sale, foreclosure or exercise of other remedies available to the Trustee as
permitted by applicable law; PROVIDED, HOWEVER, that the Trustee shall
provide at least ten days' prior written notice to the FCC and to the
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Pledgor before taking any action which may result in repossession of any
Pledged Collateral where required by FCC rules and regulations and not
waivable by Pledgor.
(e) Notwithstanding anything to the contrary contained in this
Agreement, prior to the occurrence of an Event of Default and compliance with
all applicable laws by the Trustee, this Agreement and the transactions
contemplated hereby do not, will not, and are not intended to, constitute,
create or have the effect of constituting or creating, directly or
indirectly, actual or practical ownership of Grantor by the Trustee or
control, affirmative or negative, direct or indirect, of Grantor, over the
management or any other aspect of the operation of Grantor, which ownership
and control remain exclusively and at all times in Grantor. Notwithstanding
any other provision of this Agreement, any foreclosure on, sale, transfer or
other disposition of, or the exercise of any right to vote or consent with
respect to, any of the Collateral as provided herein or any other action
taken or proposed to be taken by the Trustee hereunder which would affect the
operational, voting, or other control of Grantor or any of the Subsidiaries,
shall be effected pursuant to Section 310(d) of the Communications Act of
1934, as amended, and to the applicable rules and regulations thereunder.
(f) There shall be no communications between the Pledgor and the
Trustee whereby the Trustee shall influence the management and/or operation
of any and all facilities subject to Title III of the Communications Act.
12. MISCELLANEOUS.
(a) NOTICES. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and
shall be deemed to have been duly given and received, regardless of when and
whether received, either: (a) on the day of hand delivery; or (b) on the
third business day after the day sent, when sent by United States certified
mail, postage and certification fee prepaid, return receipt requested,
addressed as follows:
To the Trustee:
First Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration
To Grantor:
c/o EchoStar DBS Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
or at such other address as the specified entity most recently may have
designated in writing in accordance with this section to the others.
(b) HEADINGS. The headings in this Agreement are for purposes of
reference only and shall not affect the meaning or construction of any
provision of this Agreement.
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(c) SEVERABILITY. The provisions of this Agreement are severable, and
if any clause or provision shall be held invalid, illegal or unenforceable in
whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
(d) AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver of any
provision of this Agreement and any consent to any departure by Grantor from
any provision of this Agreement shall be effective only if made or given in
compliance with all of the terms and provisions of the Indenture.
(e) INTERPRETATION OF AGREEMENT. Time is of the essence in each
provision of this Agreement of which time is an element.
(f) CONTINUING SECURITY INTEREST. This Agreement shall create a
continuing security interest in the Collateral and shall (i) remain in full
force and effect until payment and performance in full of the Obligations,
(ii) be binding upon Grantor, its successors and assigns, and (iii) inure,
together with the rights and remedies of the Trustee hereunder, to the
benefit of the Trustee and its successors, transferees and assigns.
(g) REINSTATEMENT. To the extent permitted by law, this Agreement
shall continue to be effective or be reinstated, as the case may be, if at
any time any amount received by the Trustee in respect of the Obligations is
rescinded or must otherwise be restored or returned by the Trustee, upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Grantor
or upon the appointment of any receiver, intervenor, conservator, trustee or
similar official for Grantor or any substantial part of its assets, or
otherwise, all as though such payments had not been made.
(h) SURVIVAL OF PROVISIONS. All representations, warranties and
covenants of Grantor contained herein shall survive the execution and
delivery of this Agreement, and shall terminate only upon the full and final
payment and performance by Grantor of the Obligations secured hereby.
(i) AUTHORITY OF THE TRUSTEE. Subject to any applicable requirement of
prior FCC approval and any applicable restrictions established by the
Communications Act and the FCC Rules, the Trustee shall have and be entitled
to exercise all powers hereunder which are specifically granted to the
Trustee by the terms hereof, together with such powers as are reasonably
incident thereto. The Trustee may perform any of its duties hereunder or in
connection with the Collateral by or through agents or employees and shall be
entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters. Neither the Trustee nor any director, officer,
employee, attorney or agent of the Trustee shall be liable to Grantor for any
action taken or omitted to be taken by it or them hereunder, except for its
or their own gross negligence or willful misconduct, not shall the Trustee be
responsible for the validity, effectiveness or sufficiency of this Agreement
or of any document or security furnished pursuant hereto. The Trustee and its
directors, officers, employees, attorneys and agents shall be entitled to
rely on any communication, instrument or document reasonably believed by it
or them to be genuine and correct and to have been signed or sent by the
proper person or persons. Grantor agrees to indemnify and hold harmless the
Trustee and any other Person from and against any and all costs, expenses
(including reasonable fees, expenses and disbursements
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of attorneys and paralegals (including, without duplication, reasonable
charges of inside counsel)), claims and liabilities incurred by the Trustee
or such Person hereunder, unless such claim or liability shall be due to
willful misconduct or gross negligence on the part of the Trustee or such
Person.
(j) RELEASE; TERMINATION OF AGREEMENT. Subject to the provisions of
Section 12(g), this Agreement shall terminate upon full and final payment and
performance of all the Obligations. At such time, the Trustee shall, at the
request and expense of Grantor, promptly reassign and redeliver to Grantor
all of the Collateral hereunder which has not been sold, disposed of,
retained or applied by the Trustee in accordance with the terms hereof. Such
reassignment and redelivery shall be without warranty by or recourse to the
Trustee, except as to the absence of any prior assignments by the Trustee of
its interest in the Collateral, and shall be at the expense of Grantor.
(k) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be deemed an original but all
of which shall together constitute one and the same agreement.
(l) WAIVERS. GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 5(a) AND 11(a),
WAIVES ALL RIGHTS OF NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY
THE TRUSTEE OF ITS RIGHTS FROM AND AFTER AN EVENT OF DEFAULT TO REPOSSESS THE
COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE
COLLATERAL. GRANTOR WAIVES THE POSTING OF ANY BOND OTHERWISE REQUIRED OF THE
TRUSTEE IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO OBTAIN
POSSESSION OF, REPLEVY, ATTACH OR LEVY UPON COLLATERAL, TO ENFORCE ANY
JUDGMENT OR OTHER SECURITY FOR THE OBLIGATIONS, TO ENFORCE ANY JUDGMENT OR
OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY OR TO ENFORCE BY SPECIFIC
PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT
INJUNCTION, THIS AGREEMENT;
(ii) WAIVES THE RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR
CROSS-CLAIM IN RESPECT OF, AND ALL STATUTES OF LIMITATIONS WHICH MAY BE
RELEVANT TO, SUCH ACTION OR PROCEEDING;
(iii) WAIVES DILIGENCE, DEMAND, PRESENTMENT AND PROTEST AND ANY
NOTICES THEREOF AS WELL AS NOTICE OF NONPAYMENT EXCEPT FOR NOTICES REQUIRED
UNDER THE COMMUNICATIONS ACT AND/OR THE FCC RULES WHICH ARE NOT WAIVABLE BY
PLEDGOR; AND
(iv) WAIVES PRESENTMENT AND DEMAND FOR PAYMENT OF ANY OF THE
OBLIGATIONS, PROTEST AND NOTICE OF DISHONOR OR DEFAULT WITH RESPECT TO ANY OF
THE OBLIGATIONS.
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(m) GOVERNING LAW. The validity, interpretation and enforcement of
this Agreement shall be governed by the laws of the State of New York without
giving effect to the conflict of law principles thereof.
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IN WITNESS WHEREOF, Grantor and the Trustee have caused this Security
Agreement to be duly executed as of the day and year first above written.
ECHOSTAR DBS CORPORATION,
a Colorado corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
and General Counsel
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Trust Officer
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SCHEDULE I
UCC-1 FILING LOCATIONS
1. Secretary of State of the State of Colorado
2. Secretary of State of the State of Minnesota
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SCHEDULE II
MISCELLANEOUS DISCLOSURES
(1) SUBSIDIARIES (SECTION 8(c)):
DirectSat Corporation
Dish, Ltd.
E-Sat, Inc. (80% owned by Dish, Ltd.)
Echo Acceptance Corporation
Echonet Business Network, Inc.
Echosphere Corporation
Echosphere de Mexico, S. de ▇.▇. de C.V.
EchoStar Capacity Corporation
EchoStar Indonesia, Inc.
EchoStar International Corporation
EchoStar International (Mauritius) Limited
EchoStar Manufacturing and Distribution Private Limited (India)
EchoStar North America Corporation
EchoStar Real Estate Corporation
EchoStar Satellite Broadcasting Corporation
EchoStar Satellite Corporation
FlexTracker Sdn. Bhd.
Houston Tracker Systems, Inc.
HT Ventures, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇ USA, Ltd. (a partnership)
Satellite Source, Inc.
Satrec Mauritius Limited (40% owned by EchoStar International Corporation)
(2) PREDECESSORS-IN-INTEREST (SECTION 8(c)):
None
(3) DBA'S (SECTION 8(c)):
None
(4) PLACE OF BUSINESS OR CHIEF EXECUTIVE OFFICE (SECTION 8(d)):
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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