LICENSE PURCHASE AGREEMENT by and among
Exhibit 10.2
LICENSE PURCHASE AGREEMENT
by and among
SPACE EXPLORATION TECHNOLOGIES CORP., ECHOSTAR CORPORATION
and
SPECTRUM BUSINESS TRUST 2025-1
Dated as of September 7, 2025
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 1
ARTICLE 2 PURCHASE AND SALE OF SELLER LICENSES AND FOREIGN ASSETS 12
Section 2.1 Purchase and Sale of Seller Licenses and Foreign Assets 12
Section 2.2 No Assumption of Liabilities 15
Section 2.3 Spectrum Transfer Closing 15
Section 2.4 Spectrum Acquisition Closing 16
Section 2.5 Withholding 17
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER 18
Section 3.1 Organization and Qualification 18
Section 3.2 Power and Authority 18
Section 3.3 Enforceability 18
Section 3.4 Non-Contravention 18
Section 3.5 Seller Licenses 19
Section 3.6 Litigation 21
Section 3.7 Build-Out Requirements 21
Section 3.8 No Brokers 21
Section 3.9 Solvency and Debt Relief Laws 21
Section 3.10 Taxes 22
Section 3.11 EchoStar Indentures 22
Section 3.12 Foreign Assets 22
Section 3.13 ITU Priorities 24
Section 3.14 Exclusivity of Representations and Warranties 24
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF TRUST 24
Section 4.1 Organization 24
Section 4.2 Power and Authority 25
Section 4.3 Enforceability 25
Section 4.4 Non-Contravention 25
Section 4.5 Litigation 25
Section 4.6 Qualification 26
Section 4.7 No Brokers 26
Section 4.8 Exclusivity of Representations and Warranties 26
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER 26
Section 5.1 Organization 26
Section 5.2 Power and Authority 26
Section 5.3 Capitalization 27
Section 5.4 Enforceability 27
Section 5.5 Non-Contravention 27
Section 5.6 Litigation 28
Section 5.7 Qualification 28
Section 5.8 Valid Issuance of Purchaser Shares 28
Section 5.9 Available Funds 29
Section 5.10 No Brokers 29
Section 5.11 Financial Statements 29
Section 5.12 Exclusivity of Representations and Warranties 29
ARTICLE 6 COVENANTS AND OTHER AGREEMENTS 29
Section 6.1 Covenants of Purchaser, Trust and Seller Pending the Spectrum Acquisition Closing 29
Section 6.2 Compliance with Law; Compliance with Licenses; Non-Solicitation; Notice of Certain Events 31
Section 6.3 Governmental Filings 33
Section 6.4 Termination of Liens and other Arrangements; Repayment of Indebtedness; Discharge of Debt Service Loans 38
Section 6.5 Guarantor and Obligor of the EchoStar Notes; Debt Service Loans 39
Section 6.6 Customer Relations 40
Section 6.7 Interim Testing in Connection with the Seller Licenses and Foreign
Assets 41
Section 6.8 Foreign Assets 41
Section 6.9 Public Announcements 43
Section 6.10 Certain Notices 43
Section 6.11 Certain Trust and Debt Service Loan Agreement Matters 43
Section 6.12 Access 44
ARTICLE 7 CONDITIONS TO SPECTRUM TRANSFER CLOSING 45
Section 7.1 Conditions to the Obligations of Purchaser 45
Section 7.2 Conditions to the Obligations of Seller 46
Section 7.3 Conditions to the Obligations of Trust 47
ARTICLE 8 CONDITIONS TO SPECTRUM ACQUISITION CLOSING 48
Section 8.1 Conditions to the Obligations of Purchaser 48
Section 8.2 Conditions to the Obligations of Seller 49
Section 8.3 Conditions to the Obligations of Trust 50
ARTICLE 9 TERMINATION 50
Section 9.1 Termination 50
Section 9.2 Effect of Termination; Certain Remedies 52
ARTICLE 10 SURVIVAL AND INDEMNIFICATION 53
Section 10.1 Survival 53
Section 10.2 General Indemnification Obligation 53
Section 10.3 Limitations 54
Section 10.4 Indemnification Procedures 55
Section 10.5 Tax Investigations 57
Section 10.6 Treatment of Payments 57
Section 10.7 Effect of Investigation 57
Section 10.8 Exclusive Remedy 57
ARTICLE 11 MISCELLANEOUS 57
Section 11.1 Confidentiality 57
Section 11.2 Assignment 58
Section 11.3 Further Assurances 59
Section 11.4 Entire Agreement; Amendment 59
Section 11.5 Waiver 59
Section 11.6 Notices 60
Section 11.7 Governing Law 61
Section 11.8 Waiver of Jury Trial 61
Section 11.9 Submission to Jurisdiction 61
Section 11.10 Specific Performance 62
Section 11.11 No Benefit to Others 62
Section 11.12 Interpretation 62
Section 11.13 Severability 63
Section 11.14 Counterparts; Electronic Signatures 63
Section 11.15 Expenses 63
Section 11.16 Time of Essence 64
Section 11.17 No Presumption Against Drafting Party 64
Section 11.18 Non-Recourse 64
Section 11.19 Limitation of Liability of the Trustee 65
Section 11.20 Purchaser Information; Experience; Independent Inquiry; No
Investment Advice 65
Exhibits
Exhibit ASeller Licenses
Exhibit BSpectrum Transfer Assignment and Assumption of License Exhibit CSpectrum Acquisition Assignment and Assumption of License Exhibit DSubscription Agreement
Exhibit EForeign Assets Exhibit FITU Priorities Exhibit GPayment Instructions
Annexes
Annex ATerm Sheet – Commercial Agreements
Annex BMaintenance of Seller Licenses and Foreign Assets
LICENSE PURCHASE AGREEMENT
THIS LICENSE PURCHASE AGREEMENT (“Agreement”), dated as of September 7, 2025 (the “Effective Date”), is entered into by and among (i) EchoStar Corporation, a Nevada corporation (“Seller”), (ii) Space Exploration Technologies Corp., a Texas corporation (“Purchaser”), and (iii) Spectrum Business Trust 2025-1, a Nevada Business Trust (“Trust”). Seller, Purchaser and Trust are each a “Party”, and collectively are the “Parties”.
WHEREAS, Affiliates of Seller hold the (i) United States rights and licenses related to an aggregate of 50 MHz of spectrum in frequency ranges 2000–2020, 2180–2200, 1915–1920 and 1995–2000, in each case, as granted by the FCC and as further identified in Exhibit A hereto (collectively, the “Seller Licenses”) and (ii) international authorizations, filings, concessions, licenses, rights and priorities (including the ITU Priorities) related to spectrum that includes the frequency ranges 2000–2020, 2180–2200, 1915–1920 and 1995–2000 that have been granted to or obtained by Seller or its Subsidiaries from Governmental Authorities, together with certain associated assets, in each case as identified in Exhibit E hereto (collectively, the “Foreign Assets”);
WHEREAS, Seller wishes to sell, and ▇▇▇▇▇▇▇▇▇ wishes to purchase, the Seller Licenses and Foreign Assets in the manner and subject to the terms and conditions set forth in this Agreement; and
WHEREAS, upon the Spectrum Acquisition Closing (as defined below), Purchaser will transfer and deliver to Seller a Starlink satellite for display at a domestic EchoStar location designated by Seller, at no cost to Seller.
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants, conditions and agreements hereinafter set forth, the Parties agree as follows:
As used in this Agreement, the following terms will have the meanings set forth or referenced below:
“Action” means any claim, complaint, action, suit, litigation, arbitration, audit, indictment, investigation or inquiry by or before any Governmental Authority, or any other arbitration, mediation or similar proceeding.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. The term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as applied to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other ownership interests, by contract or otherwise; provided that, for the avoidance of doubt, for purposes of this Agreement, Trust will not constitute an Affiliate of Seller or its Subsidiaries.
“Agreed Amount” has the meaning set forth in Section 10.4(d).
“Agreement” means this Agreement and all Exhibits and Schedules hereto, as amended,
supplemented or otherwise modified from time to time in accordance with the terms hereof.
“Business Day” means any day, other than a Saturday or Sunday, on which commercial banks and foreign exchange markets are open for business in the county of New York, State of New York.
“Claim Notice” means a written notification which contains (a) the facts and circumstances in reasonable detail giving rise to any claim for indemnification hereunder, (b) a description of the Losses incurred or reasonably expected to be incurred by the Indemnified Party and the Claimed Amount of such Losses, to the extent then known and (c) a statement of the provisions under this Agreement upon which such claim is based.
“Claimed Amount” means the amount of any Losses incurred or reasonably expected to
be incurred by the Indemnified Party (to the extent then known).
“Code” means the Internal Revenue Code of 1986, as amended. “Communications Act” means the Communications Act of 1934, as amended. “Confidentiality Agreement” has the meaning set forth in Section 11.1(a).
“Controlling Party” means the Party controlling the defense of any Third Party Claim.
“Conversion Overage” means the positive difference, if any, resulting from (a) aggregate Conversion Obligation (as defined in and pursuant to Section 14.01 of the Convertible Notes Indenture), minus (b) the Covered Conversion Value, which amount, if any and subject to Section 2.1(e), will be the responsibility of Seller and will be satisfied by Seller through (1) the use of its own sources of cash, (2) the issuance of shares of Class A Common Stock of Seller or (3) a combination of the foregoing; provided, however, if Seller has not made a Redemption Election as of the Spectrum Acquisition Closing Date, the Conversion Overage will deemed to be zero.
“Convertible Notes” means the $1,946,855,965 aggregate principal amount of 3.875% Convertible Senior Secured Notes due 2030 of Seller.
“Convertible Notes Indenture” means the Indenture, dated as of November 12, 2024, among EchoStar Corporation, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A. as trustee and collateral agent, pursuant to which the Convertible Notes were issued.
“Covered Conversion Value” means the cash amount required for the settlement of conversions of the Convertible Notes, assuming such conversion is settled by Cash Settlement (as defined in the Convertible Notes Indenture) and the Daily VWAP (as defined in the Convertible Notes Indenture) of the Class A Common Stock (as defined in the Convertible Notes Indenture) is
$43.72 for each VWAP Trading Day (as defined in the Convertible Notes Indenture) in the Observation Period (as defined in the Convertible Notes Indenture) in respect of a Redemption
Date (as defined in the Convertible Notes Indenture) of November 30, 2027, and payable by Purchaser pursuant to this Agreement; provided, however that (i) in no event will the Covered Conversion Value exceed $2,774,402,414.17 and, if it does exceed that amount, it will be deemed to be $2,774,402,414.17 and (ii) if Seller has not made a Redemption Election as of the Spectrum Acquisition Closing Date, the Covered Conversion Value will deemed to be zero.
“Debtor Relief Laws” means title 11 of the United States Code, 11 U.S.C. §§101-1532, as amended from time to time, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, examinership, insolvency, reorganization or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Debt Service Loan” means the cash loans extended to Trust pursuant to the terms of the Debt Service Loan Agreement.
“Debt Service Loan Agreement” means the loan agreement between Trust, as borrower,
and Purchaser, as lender, to be entered into on the Effective Date.
“Debt Service Loan Agreement Ancillary Documents” means the security agreement and intercreditor agreements to be entered into on the Spectrum Transfer Closing Date in connection with the Debt Service Loan Agreement, each substantially in the forms attached as exhibits to the Debt Service Loan Agreement.
“Debt Service Loan Default” means any breach of Purchaser’s funding obligations under
the Debt Service Loan Agreement.
“Debt Service Loan Default Notice” has the meaning set forth in Section 9.1(d).
“Default Amount” means the aggregate amount of the Total Payoff Consideration Amount attributable to EchoStar Indentures Default occurring on or after the date of this Agreement.
“Discharge Letter” has the meaning set forth in Section 6.4(d). “Disqualification Event” has the meaning set forth in Section 5.8(b). “DOJ” means the United States Department of Justice.
“EchoStar 6.75% Secured Notes” means the EchoStar Notes described in clause (b) of the definition thereof.
“EchoStar 10.75% Secured Notes” means the EchoStar Notes described in clause (a) of
the definition thereof.
“EchoStar High Yield Notes” means the EchoStar Notes described in clauses (a) and (b)
of the definition thereof.
“EchoStar Indebtedness” means the EchoStar Notes and any Incremental Debt.
“EchoStar Indentures” means, collectively, (a) the EchoStar New Notes Indenture, dated as of November 12, 2024, associated with the issuance of the EchoStar 10.75% Secured Notes, (b) the EchoStar Exchange Notes Indenture, dated as of November 12, 2024, associated with the issuance of the EchoStar 6.75% Secured Notes, and (c) the Convertible Notes Indenture.
“EchoStar Indenture Obligations” means the obligations of Trust as guarantor and pledgor under the EchoStar Indentures pursuant to the EchoStar Joinder Documents.
“EchoStar Indentures Default” means any Event of Default under (and as defined in) any of the EchoStar Indentures resulting primarily from an act or failure to act by Seller or any of its Subsidiaries party thereto, subject to any cure provisions set forth in such EchoStar Indentures.
“EchoStar Joinder Documents” means customary joinder agreements to the EchoStar Indentures and related security pledge and intercreditor agreements, each substantially in the forms attached to the applicable EchoStar Indentures, related security agreements or intercreditor agreement.
“EchoStar Noteholders” means the holders of the EchoStar Notes.
“EchoStar Notes” means, collectively, (a) the $5,505,999,854 aggregate principal amount of 10.75% Senior Spectrum Secured New Notes due 2029, (b) the $2,372,670,498 aggregate principal amount of 6.75% Senior Spectrum Secured Exchange Notes due 2030 and (c) the Convertible Notes, in each case, of Seller.
“EchoStar Notes Interest Payments” has the meaning set forth in Section 6.5(b).
“Effective Date” has the meaning set forth in the preamble.
“Equity Amount” has the meaning set forth in Section 2.1(c)(ii)(A).
“Expense Cap” has the meaning set forth in Section 11.15(b).
“FCC” means the United States Federal Communications Commission, including a bureau
or office thereof acting under delegated authority, and any substitute or successor entity thereto.
“FCC Acquisition Consent” means the consent of the FCC to permit the consummation of the assignment by Trust to Purchaser of the Seller Licenses to the extent such consent is necessary, which consent will include (1) exclusive use for Purchaser of the spectrum rights for terrestrial and satellite operations under the Seller Licenses, (2) a waiver of the terrestrial build- out requirements in 47 C.F.R. § 27.14(q)-(r) and (3) authority to provide supplemental coverage from space using the 1915–1920/1995–2000 MHz bands pursuant to 47 C.F.R. § 25.125.
“FCC Applications” has the meaning set forth in Section 6.3(b).
“FCC Consents” means the FCC Transfer Consent and the FCC Acquisition Consent.
“FCC Order” means an official action or order taken or issued by the FCC through written order, decision, memorandum, public notice or letter that is effective and as to which no stay is in effect.
“FCC Rules” means the rules, regulations, orders and written policies of the FCC.
“FCC Transfer Consent” means the requisite consent of the FCC to permit the
consummation of the assignment by Seller to Trust of the Seller Licenses.
“Filing Deadline” has the meaning set forth in Section 6.3(b).
“Final Remaining Assets Transfer Date” has the meaning set forth in Section 6.1(c).
“Foreign Asset Material Adverse Effect” means an event, development, circumstance, change or effect that, individually or in the aggregate, has a material adverse effect on the Foreign Assets (taken as a whole); provided, however, that the effects of any of the following will not, alone or in combination, be deemed to constitute, nor be taken into account in determining whether there has been, any such material adverse effect: (i) changes in economic, regulatory, social or political conditions (including any statements or proclamations of public officials) or the financing, banking, currency or capital markets in general in the United States or any other jurisdiction (including interest rate and exchange rate changes, inflationary matters or tariffs or trade wars);
(ii) changes in Laws, orders or any applicable accounting standards or any interpretation thereof;
(iii) changes affecting industries, markets or geographical areas in which Seller and Licensing Subsidiaries conduct their businesses with respect to the Foreign Assets; (iv) the negotiation, announcement, execution, pendency or performance of this Agreement or the transactions contemplated hereby (it being understood that this clause (iv) will not apply to any representation, warranty, covenant or agreement of Seller herein that is expressly intended to address the consequences of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby); (v) any act of God, weather-related event, natural disaster, force majeure event or other similar event; (vi) any epidemic, pandemic or disease outbreak; (vii) actions taken at Purchaser’s written request; or (viii) any action taken Affiliates in breach of this Agreement or any of the Transaction Documents.
“Foreign Assets” has the meaning set forth in the recitals.
“Foreign Assets Acquisition Regulatory Approval” means each consent, waiver, approval, authorization, permit, or order from the appropriate Governmental Authorities or Third Parties for the assignment or transfer of Foreign Assets (or the equity interests of the applicable Licensing Subsidiaries) to Purchaser.
“Fraud” means, with respect to any Party, an actual and intentional common law fraud with the element of scienter in the making of any representation or warranty set forth in Article 3 (in the case of Seller) or Article 5 (in the case of Purchaser). Under no circumstances will “Fraud” include any equitable fraud, negligent misrepresentation, promissory fraud, unfair dealings, extra- contractual fraud or any other fraud or torts based on recklessness or negligence.
“FTC” means the United States Federal Trade Commission.
“Governmental Authority” means an international, federal, state or local court, legislature, governmental agency, multilateral agency, treaty organization, commission or regulatory, administrative or taxing authority or instrumentality.
“HSR Act” means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, any successor statute thereto, and the rules and regulations promulgated thereunder.
“HSR Notice” has the meaning set forth in Section 6.3(c). “Incremental Debt” has the meaning set forth in Section 6.1(b). “Indemnified Party” has the meaning set forth in Section 10.2(a). “Indemnifying Party” has the meaning set forth in Section 10.2(a).
“ITU” means the International Telecommunication Union, including a bureau or office thereof acting under delegated authority, and any substitute or successor entity thereto.
“ITU Priorities” means the ITU filings, in each case, as set forth on Exhibit F.
“Knowledge” or “knowledge” as used (a) with respect to Seller, means the current, actual knowledge of the individuals set forth in Section 1 of the Seller Disclosure Schedule and (b) with respect to Purchaser, means the current, actual knowledge of the individuals set forth on Section 1 of the Purchaser Disclosure Schedule, in each case, after reasonable inquiry of such individuals’ direct reports.
“Law” means applicable common law and any statute, ordinance, code or other law, rule, permit, permit condition, regulation, order, decree, technical or other standard, requirement or procedure enacted, adopted, promulgated, applied, issued or followed by any Governmental Authority.
“Liabilities” means any direct or indirect liability, indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation or responsibility, of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, asserted or unasserted, ▇▇▇▇▇▇ or inchoate, liquidated or unliquidated, secured or unsecured, accrued, contingent or otherwise.
“Licensing Subsidiary” means a direct or indirect Subsidiary of Seller that holds one or more Seller Licenses and/or the Foreign Assets.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest, easement, conditional sales contract, reversionary interest, transfer restriction (other than transfer restrictions arising or routinely imposed under the Communications Act or the FCC Rules), right of first refusal, voting trust agreement, preemptive right or other adverse claim, defect of title or other encumbrance of any kind, whether voluntary or imposed by applicable Law, and any agreement to give any of the foregoing in respect of such asset excluding (a) any restrictions and limitations generally applicable to the license types constituting the Seller Licenses and the Foreign Assets, (b) any conditions or restrictions imposed on the Seller Licenses by the FCC, or on the Foreign Assets by the applicable Governmental Authorities, including the terms and conditions of the FCC Consents or the Foreign Assets Acquisition Regulatory Approvals, and (c) any Lien imposed in connection with the consummation of the transactions contemplated hereby or otherwise as a result of actions taken by Purchaser or any of its Affiliates.
“Loss” means, without duplication, any loss, liability, claim, damage, expense (including reasonable and documented legal fees and expenses or other reasonable and documented professional services fees and expenses), court cost, amount paid in settlement, other expense associated with enforcing any right hereunder, expense for investigation and ongoing monitoring and remediation expense; provided, however, that “Loss” will not include any indirect, punitive or exemplary damages except to the extent awarded to a Third Party in a Third Party Claim.
“Material Adverse Effect” means an event, development, circumstance, change or effect that, individually or in the aggregate, has a material adverse effect on: (a) the Seller Licenses (taken as a whole), (b) the ability of the holder thereof to use the Seller Licenses (taken as a whole) or (c) the ability of Seller to consummate the transactions contemplated by this Agreement; provided, however, that the effects of any of the following will not, alone or in combination, be deemed to constitute, nor be taken into account in determining whether there has been, any such material adverse effect: (i) changes in economic, regulatory, social or political conditions (including any statements or proclamations of public officials) or the financing, banking, currency or capital markets in general in the United States
or any other jurisdiction (including interest rate and exchange rate changes, inflationary matters or tariffs or trade wars); (ii) changes in Laws, orders or any applicable accounting standards or any interpretation thereof; (iii) changes affecting industries, markets or geographical areas in which Seller and Licensing Subsidiaries conduct their businesses with respect to the Seller Licenses; (iv) the negotiation, announcement, execution, pendency or performance of this Agreement or the transactions contemplated hereby (it being understood that this clause (iv) will not apply to any representation, warranty, covenant or agreement of Seller herein that is expressly intended to address the consequences of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby); (v) any act of God, weather-related event, natural disaster, force majeure event or other similar event; (vi) any epidemic, pandemic or disease outbreak; (vii) actions taken at Purchaser’s written request; or (viii) any action taken by Purchaser or any of its Affiliates in breach of this Agreement or any of the Transaction Documents.
“Non-Controlling Party” means the Party not controlling the defense of any Third Party
Claim.
“Non-Party Affiliate” has the meaning set forth in Section 11.18.
“Organizational Documents” means, with respect to any Person, articles or certificate of
incorporation, bylaws, partnership agreement, articles or certificate of formation or organization, operating or limited liability company agreement, trust agreement, or other equivalent constitutional documents, including any amendments, exhibits, schedules, annexes, and attachments thereto.
“Party” and “Parties” have the meanings set forth in the preamble.
“Person” means an individual, person, firm, corporation, partnership, limited liability company, syndicate, trust, association, organization or other entity, including any Governmental Authority, and including any successor, by merger or otherwise, of any of the foregoing.
“Post-Closing Obligations Deadline” has the meaning set forth in Section 6.8(a).
“Purchase Price” has the meaning set forth in Section 2.1(c)(ii).
“Purchaser” has the meaning set forth in the preamble.
“Purchaser Burdensome Condition” means any actions, undertakings, terms, conditions, liabilities, obligations, commitments, sanctions or other measures (including any Remedial Action) that, individually or in the aggregate, would have or would be reasonably likely to have a material adverse effect on the business and operations of Purchaser, taken as a whole, with the business and operations of Purchaser being measured based on the size of the business and operations of Seller, taken as a whole.
“Purchaser Bylaws” means the Bylaws of Purchaser, dated as of February 14, 2024. “Purchaser Certificate of Formation” means the Certificate of Formation of Purchaser,
dated as of February 14, 2024.
“Purchaser Covered Person” means, with respect to Purchaser as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).
“Purchaser Fundamental Representations” means the representations and warranties set forth in Section 5.1 (Organization), Section 5.2 (Power and Authority), Section 5.3(a) (Capitalization), Section 5.4 (Enforceability), Section 5.8(a) (Valid Issuance of Purchaser Shares), and Section 5.10 (No Brokers).
“Purchaser Governing Documents” means the Organizational Documents of Purchaser (including, for the avoidance of doubt, the Purchaser Certificate of Formation and the Purchaser Bylaws).
“Purchaser Indemnified Parties” has the meaning set forth in Section 10.2(b).
“Purchaser Information” has the meaning set forth in Section 11.20(a).
“Purchaser IRA” means the Amended and Restated Investor’s Rights Agreement of the
Bylaws, dated August 4, 2020.
“Purchaser Shares” means shares of Class A Common Stock (as defined in the Purchaser
Certificate of Formation) issued and sold to Seller pursuant to this Agreement.
“Qualified Debt” means Incremental Debt where (i) so long as outstanding, does not restrict or prohibit the performance of this Agreement or the transactions contemplated hereby, (ii) does not require amortization or prepayments (other than asset sale or change of control provisions
consistent with the EchoStar Indentures as in effect on the date hereof) prior to the Spectrum Acquisition Closing and (iii) the maximum amount of all obligations (including any prepayment premiums or penalties) that could be outstanding at any one time thereunder together with the maximum Total Payoff Consideration Amount (calculated without reference to any Incremental Debt) does not exceed the Total Consideration Amount.
“Redemption Election” means that Seller has issued a Redemption Notice (as defined in, and permitted by the terms of, the Convertible Notes Indenture) with a Redemption Date (as defined in the Convertible Notes Indenture) of November 30, 2027, or, if later, the Spectrum Acquisition Closing Date.
“Remaining Foreign Assets” has the meaning set forth in Section 6.8(a).
“Representatives” means, in relation to any Party, the directors, officers, employees, agents, professional advisers, attorneys, financial advisors, accountants and consultants of such Party and its Affiliates.
“Response” has the meaning set forth in Section 10.4(d).
“Remedial Action” has the meaning set forth in Section 6.3(e).
“Secured Notes Liens” means Liens securing the EchoStar Notes and any Incremental
Debt.
2.1(d).
“Securities Act” has the meaning set forth in Section 11.9(d).
“Seller” has the meaning set forth in the preamble.
“Seller Aggregate Noteholder Payment Amount” has the meaning set forth in Section
“Seller Burdensome Condition” means any actions, undertakings, terms, conditions,
liabilities, obligations, commitments, sanctions or other measures (including any Remedial Action) that, individually or in the aggregate, would have or would be reasonably likely to have a material adverse effect on the business or operations of Seller.
“Seller Disclosure Schedule” has the meaning set forth in the preamble to Article 3.
“Seller Elected Payoff Amount” has the meaning set forth in the flush language of Section
2.1(c).
“Seller Fundamental Representations” means the representations and warranties set
forth in Section 3.1 (Organization and Qualification), Section 3.2 (Power and Authority), Section
3.3 (Enforceability) and Section 3.8 (No Brokers).
“Seller Indemnified Parties” has the meaning set forth in Section 10.2(c).
“Seller Licenses” has the meaning set forth in the recitals.
“Seller Licenses Re-Transfer” has the meaning set forth in Section 9.2(b).
“Solvent” means, with respect to a particular Person on a particular date, that on such date,
(a) the sum of the assets, at a fair valuation, of such Person will exceed its debts, (b) such Person has not incurred and does not intend to incur, and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature, and (c) such Person will have sufficient capital and liquidity with which to conduct its business.
“Specified Costs” has the meaning set forth in Section 11.15(b).
“Spectrum Acquisition Closing” has the meaning set forth in Section 2.4(a).
“Spectrum Acquisition Closing Acceleration Election” has the meaning set forth in
Section 2.4(b).
“Spectrum Acquisition Closing Acceleration Notice” has the meaning set forth in
Section 2.4(b).
“Spectrum Acquisition Closing Date” has the meaning set forth in Section 2.4(a). “Spectrum Acquisition Outside Date” has the meaning set forth in Section 9.1(b). “Spectrum Transfer Closing” has the meaning set forth in Section 2.3(a). “Spectrum Transfer Closing Date” has the meaning set forth in Section 2.3(a). “Spectrum Transfer Outside Date” has the meaning set forth in Section 9.1(b).
“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or
(b) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority of partnership, association or other business entity gains or losses or will be or control the managing director or general partner of such partnership, association or other business entity; provided that, for the avoidance of doubt, for purposes of this Agreement, Trust will not constitute a Subsidiary of Seller.
“Target Accelerated Spectrum Acquisition Closing Date” has the meaning set forth in
Section 2.4(b).
“Target Spectrum Acquisition Closing Date” mean November 30, 2027.
“Taxes” means any and all federal, state, local, foreign or other taxes of any kind imposed by any Governmental Authority, including income, net proceeds, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, utilities, telecommunications, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other assessment, fee, governmental charge or other amount in the nature of a tax (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority.
“Tax Return” means any return, declaration, report, statement, claim for refund or information statement and other document filed or required to be filed with a Governmental Authority with respect to Taxes, including any schedule or attachment thereto, and any amendment, modification or supplement thereof.
“Third Party” means, with respect to any specified Person, any other Person who is not
an Affiliate of such specified Person (other than Governmental Authority).
“Third Party Claim” means any Action by a Person other than Purchaser or Seller for
which indemnification may be sought by an Indemnified Party under Article 10.
“Total Consideration Amount” has the meaning set forth in Section 2.1(c).
“Total Payoff Consideration Amount” has the meaning set forth in Section 2.1(c)(i).
“Transaction Documents” means this Agreement, the Commercial Agreements, the Trust Agreement, the Debt Service Loan Agreement, the Debt Service Loan Agreement Ancillary Documents, and all other agreements, documents and instruments required to be delivered by any Party or its designee to any other Party or its designee in accordance with the provisions of this Agreement.
“Transfer Taxes” means all transfer, documentary, sales, use, stamp, recording, value added, registration and other similar Taxes and all conveyance fees, recording fees and other similar charges, including penalties, interest and other charges with respect thereto.
“Trust Agreement” means the trust agreement governing the terms, conditions and
activities of Trust.
“Trust Guarantee” means Trust’s guarantee of the EchoStar Notes pursuant to the
EchoStar Joinder Documents.
“Trustee” means The Bank of New York Mellon Trust Company, N.A. or any successor trustee of the Trust.
“Willful and Material Breach” means a material breach of a covenant or agreement set forth in this Agreement by a Party that is a consequence of an act or failure to act by the breaching Party with knowledge or intention that the taking of such act or failure to act would, or would reasonably be expected to, cause or constitute a material breach of such covenant or agreement.
ARTICLE 2
PURCHASE AND SALE OF SELLER LICENSES AND FOREIGN ASSETS
Section 2.1Purchase and Sale of Seller Licenses and Foreign Assets
$17,000,000,000 (as it may be adjusted as set forth in Section 2.1(d), the “Total Consideration Amount”), payable as follows:
amounts payable thereunder which, for the avoidance of doubt, will not include the interest amount payable at the Spectrum Acquisition Closing under the Debt Service Loan Agreement, sufficient to cause the release of the Trust Guarantee (and related Liens) plus
(y) if there has been a Redemption Election, the Covered Conversion Value (clauses (x) and (y), together with the satisfaction of the Conversion Overage, if any, representing the amounts necessary to satisfy the EchoStar High Yield Notes and (if a Redemption Election has been made) the Convertible Notes in full). Trust will promptly (but in any event no later than the Spectrum Acquisition Closing Date) either (A) directly apply the Total Payoff Consideration Amount and the Conversion Overage (solely to the extent paid by Purchaser pursuant to Section 2.1(e)), in accordance with the terms of the applicable EchoStar Indentures, to satisfy the applicable EchoStar Notes in full or (B) transfer the Total Payoff Consideration Amount and the Conversion Overage (solely to the extent paid by Purchaser pursuant to Section 2.1(e)) to Seller, which will promptly (but in any event no later than the Spectrum Acquisition Closing Date) apply such funds in accordance with the applicable EchoStar Indentures to satisfy the applicable EchoStar Notes in full. If, notwithstanding Seller’s obligation to repay in full all outstanding obligations under any Incremental Debt required to be satisfied and discharged to permit the Spectrum Acquisition Closing and the related transactions, Seller defaults on such obligations, then the Total Payoff Consideration Amount will be increased by the aggregate amount necessary to repay in full such obligations.
| (B) | second,totheextentthePurchasePriceexceeds |
$8,500,000,000, an amount in cash equal to the difference between the Equity Amount and the Purchase Price, payable in immediately available funds to Seller;
If the Total Payoff Consideration Amount exceeds $8,500,000,000, and to the extent Seller pays or settles on or prior to the Spectrum Acquisition Closing Date, all or a portion of the Total Payoff Consideration Amount in excess of $8,500,000,000 (such excess amount, the “Seller Elected Payoff Amount”) either (1) by using its own sources of cash and/or (2) in the event of Conversion Overage in the manner described in the definition of “Conversion Overage”, then the Purchase Price will be increased by an amount equal to such Seller Elected Payoff Amount, provided that, in all cases, the sum of the Purchase Price and the Total Payoff Consideration Amount will not exceed the Total Consideration Amount and the Equity Amount will not exceed $8,500,000,000. In the event that Seller has made a Redemption Election and, in its sole discretion, pays all or a portion of the Covered Conversion Value in shares of Class A Common Stock of Seller on or prior
to the Spectrum Acquisition Closing Date in accordance with the Convertible Note Indenture, such settlement will reduce the Total Payoff Consideration Amount otherwise payable by Purchaser pursuant to Section 2.1(c)(i) on a dollar-for-dollar basis (using an assumed value of each share of Class A Common Stock of Seller delivered in such settlement of $43.72) and will correspondingly increase the Equity Amount on a dollar-for-dollar basis, up to, but not exceeding $8,500,000,000. In the event Seller elects not to (or does not) pay the Seller Elected Payoff Amount (including by not paying any portion of the Conversion Overage in the event of a Redemption Election), the Equity Amount will be reduced on a dollar-for-dollar basis so that, in all cases, the sum of the Equity Amount and the Total Payoff Consideration Amount does not exceed the Total Consideration Amount.
(C) Seller will pay, in accordance with the EchoStar Indentures and concurrent with the payment of the Total Payoff Consideration Amount, the Default Amount that is in excess of the Total Consideration Amount (the amount payable by Seller under this Section 2.1(d), the “Seller Aggregate Noteholder Payment Amount”).
is such a determination, (1) the Party required to take a different position will provide a detailed explanation to the other Party of the final determination and manner in which it varies from the Intended Tax Treatment, (2) the Parties agree to cooperate in good faith to determine the date on which ownership of the Seller Licenses, Foreign Assets and Option Exercise Assets, as applicable, transferred from Seller to Purchaser for U.S. federal income tax purposes and (3) the Parties will no longer be bound by the Intended Tax Treatment to the extent they reasonably conclude that the Intended Tax Treatment is inconsistent with such final determination.
Section 2.2 No Assumption of Liabilities. THIS IS A PURCHASE AND SALE OF ASSETS AND PURCHASER WILL NOT ASSUME, BE BOUND BY OR BE RESPONSIBLE OR LIABLE FOR, OR BE DEEMED TO HAVE ASSUMED, BECOME BOUND BY OR RESPONSIBLE OR LIABLE FOR, UNDER THIS AGREEMENT OR BY REASON OF THE TRANSACTIONS CONTEMPLATED HEREBY, ANY LIABILITIES OF SELLER OR ANY OTHER PERSON, OR IN RESPECT OF THE SELLER LICENSES OR FOREIGN ASSETS OF ANY KIND OR NATURE, KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE, THAT EXISTED, AROSE, WERE INCURRED, OR OTHERWISE PERTAIN TO ACTIONS EVENTS OR CIRCUMSTANCES OCCURRING OR EXISTING PRIOR TO (OR ARISING IN RESPECT OF A PERIOD (OR A PORTION THEREOF) ENDING ON OR PRIOR TO) THE SPECTRUM ACQUISITION CLOSING WITH RESPECT TO THE SELLER LICENSES AND THE FOREIGN ASSETS (INCLUDING, WITHOUT LIMITATION AND FOR THE AVOIDANCE OF DOUBT, ANY TAXES). PURCHASER ONLY WILL BE LIABLE FOR LIABILITIES FIRST ARISING IN RESPECT OF PERIODS BEGINNING FROM AND AFTER THE SPECTRUM ACQUISITION CLOSING AND RELATING TO THE OWNERSHIP, OPERATION OR USE OF THE SELLER LICENSES AND FOREIGN ASSETS IN RESPECT OF SUCH PERIODS.
Section 2.3Spectrum Transfer Closing.
upon in writing by ▇▇▇▇▇▇▇▇▇ and Seller. The date of the Spectrum Transfer Closing is referred to
herein as the “Spectrum Transfer Closing Date”.
| (b) | Subject to the terms and conditions hereof, at the Spectrum Transfer |
Closing:
| (i) | Seller will, and will cause the Licensing Subsidiaries to, execute and |
deliver to Trust an instrument of assignment and assumption of license substantially in the form attached hereto as Exhibit B, executed by Seller or the applicable Licensing Subsidiary.
Section 2.4Spectrum Acquisition Closing.
Accelerated Spectrum Acquisition Closing Date”); provided, however, that the Spectrum Acquisition Closing will be subject to the satisfaction or waiver of the conditions set forth in Article 8 and the Target Accelerated Spectrum Acquisition Closing Date will automatically be extended until such conditions are satisfied or waived. Subject to the terms and conditions hereof, the Parties further agree to use reasonable best efforts to promptly do or cause to be done all such acts as necessary to consummate the Spectrum Acquisition Closing on the Target Accelerated Spectrum Acquisition Closing Date upon Purchaser’s delivery of the Spectrum Acquisition Closing Acceleration Notice.
| (c) | Subject to the terms and conditions hereof, at the Spectrum Acquisition |
Closing:
| (i) | Trust will execute and deliver to Purchaser: (A) an instrument of |
assignment and assumption of license substantially in the form attached hereto as Exhibit C; (B) the Discharge Letter; (C) a properly completed Internal Revenue Service Form W- 9 and (D) any certificates or other documents required to be delivered on such date by Trust under the Debt Service Loan Agreement.
Section 2.5 Withholding. Each Party will be entitled to deduct and withhold from the amounts payable or otherwise deliverable to any other Party pursuant to this Agreement such amounts as are required to be deducted or withheld therefrom under the Code or under any provision of state, local or foreign Law; provided, that each of Purchaser and Trust will use reasonable best efforts to provide at least five (5) Business Days’ prior notice to Seller of any intention to deduct and withhold on any payment to Seller or any of its Affiliates (and to include in such notice the legal authority and the calculation method for the expected deduction or withholding). To the extent such amounts are so deducted or withheld, such amounts (i) will be timely paid over to the appropriate Governmental Authority and (ii) will be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. The applicable withholding agent will timely pay or cause to be paid any amounts withheld pursuant to this Section 2.5 for applicable taxes to the appropriate Governmental Authority. If necessary, Purchaser and its Representatives will cause the Total Payoff Consideration Amount to be increased (with an equivalent reduction to the Equity Amount) to account for any withholding that is required, such that there will be a sufficient amount to satisfy the EchoStar High Yield Notes and (if a Redemption Election has been made) the Convertible Notes in full; provided, for the avoidance of doubt, in no circumstance will this sentence be
construed to require any increase in the Total Consideration Amount. The Parties will use commercially reasonable efforts to cooperate to minimize the amount of any deduction or withholding required to the extent permitted under applicable Law.
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the disclosure schedules delivered by Seller to Purchaser immediately prior to the execution of this Agreement (the “Seller Disclosure Schedule”) (it being agreed that disclosure of any item in any section or subsection of a Seller Disclosure Schedule will apply only to the corresponding section or subsection of this Agreement and to any other section or subsection of this Agreement to the extent that the relevance of such item is reasonably apparent on its face in the Seller Disclosure Schedule), Seller hereby represents and warrants to Purchaser that the following statements are true and correct:
Section 3.1 Organization and Qualification. Seller and each Licensing Subsidiary is duly organized and validly existing under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not prevent, materially delay or materially impair Seller’s or such Licensing Subsidiary’s ability to sell, convey, transfer, deliver and assign its right, title and interest in and to the Seller Licenses and Foreign Assets, free and clear of all Liens other than the Secured Notes Liens (in the case of the Seller Licenses), on the terms contemplated hereby.
Section 3.2 Power and Authority. Seller has all requisite corporate or similar power and authority to execute, deliver and perform this Agreement and the other Transaction Documents to which it is a party. The execution, delivery and performance by Seller of this Agreement and all the other Transaction Documents required to be executed and delivered by Seller in accordance with the provisions of this Agreement have been duly authorized by all necessary corporate or similar action on the part of Seller. This Agreement has been, and the other Transaction Documents to which Seller is a party have been, or will be, duly executed and delivered by Seller.
Section 3.3 Enforceability. This Agreement constitutes, and the other Transaction Documents to which Seller is a party constitute or will constitute, the legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, receivership, fraudulent transfer and other similar laws affecting creditors’ rights generally and by general principles of equity.
Section 3.4 Non-Contravention. Subject to the receipt of the FCC Consents, the Foreign Assets Acquisition Regulatory Approvals and compliance with any applicable requirements of the HSR Act and the giving of any post-Closing notifications required by the FCC or state or foreign Governmental Authorities, the execution, delivery and performance by Seller of this Agreement and the other Transaction Documents to which Seller is a party do not and will not violate or conflict with or result in a default or the breach of any term, condition or provision of, or require the consent of any other Person or give any Person any right of termination,
amendment, acceleration or cancellation under, (a) any Law to which Seller, Licensing Subsidiaries or any of the Seller Licenses or Foreign Assets is subject in any material respect, (b) any judgment, order, writ, injunction, decree or award of any Governmental Authority or arbitrator that is applicable to Seller, Licensing Subsidiaries or any of the Seller Licenses or Foreign Assets,
(c) Seller’s or the Licensing Subsidiaries’ Organizational Documents, (d) any material mortgage, indenture, agreement, contract, commitment, lease, license or other instrument, document or understanding, oral or written, to which Seller or Licensing Subsidiaries is a party or subject or by which any of the Seller Licenses or Foreign Assets may be bound or affected (including, for the avoidance of doubt, the EchoStar Indentures) or (e) any of the Seller Licenses or Foreign Assets or result in the creation of a Lien on any of the Seller Licenses or Foreign Assets.
has occurred with respect to any of the Seller Licenses which permits, or after notice or lapse of time or both would permit, revocation or termination thereof or that would reasonably be expected to result in any material violation or default, claim of material violation or default of any Law or regulation of any Governmental Authority with respect to any Seller License or material impairment of the rights of the holder of such Seller License.
since the date that such Seller License was first issued or transferred to Seller or any Subsidiary thereof were correct in all material respects at the time of filing.
Section 3.6 Litigation. Except for Actions affecting the wireless communications industry generally or the license types constituting the Seller Licenses or Foreign Assets generally, no Action is pending or, to Seller’s knowledge, threatened against Seller or any Affiliate thereof that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect, or that seeks to enjoin this Agreement or the transactions contemplated hereby or otherwise prevent Seller from performing its obligations under this Agreement or consummating the transactions contemplated hereby. Neither Seller nor any Affiliate thereof is a party to or subject to the provisions of any judgment, order, writ, injunction, decree or award of any Governmental Authority or arbitrator that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.
Section 3.7 Build-Out Requirements. Except as set forth in Section 3.7 of the Seller Disclosure Schedule, Seller and its Affiliates are not in material breach of any build-out or continuance of service requirements under the FCC Rules relating to any Seller License or applicable Law relating to any Foreign Assets.
Section 3.8 No Brokers. Seller and its agents and Affiliates have incurred no obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payments in connection with this Agreement or the transactions contemplated hereby for which Trust, Purchaser or any Affiliate of either of the foregoing could become liable or obligated.
Section 3.9Solvency and Debt Relief Laws.
have entered into this Agreement and the transactions contemplated by this Agreement absent the representations and warranties contained in this Section 3.9.
Section 3.11 EchoStar Indentures. Each of the EchoStar Indentures is in full force and effect and no Default or Event of Default (each as defined in the applicable EchoStar Indenture) has occurred and is continuing. The aggregate outstanding principal amount of each series of EchoStar Notes is listed in Section 3.11 of the Seller Disclosure Schedule. Neither Seller nor any of its Affiliates beneficially owns any EchoStar Notes. Seller has not received written notice from any holder of EchoStar Notes or any trustee under an EchoStar Indenture making a bona fide allegation of a Default or Event of Default under any EchoStar Indenture.
individually or in the aggregate, has had or would reasonably be expected to have a Foreign Asset Material Adverse Effect, other than Actions affecting the wireless telecommunications industry generally or the license types constituting the Foreign Assets generally. Except as set forth in Section 3.12(c)(ii) of the Seller Disclosure Schedule, no Governmental Authority has, to Seller’s knowledge, threatened to terminate or suspend any of the Foreign Asset, and there are no Third Party claims of any kind that have been asserted in writing, or to the knowledge of Seller, not in writing, with respect to any of the Foreign Assets that, if successful, individually or in the aggregate, has had or would reasonably be expected to have a Foreign Asset Material Adverse Effect. Except as set forth in Section 3.12(c)(iii) of the Seller Disclosure Schedule, neither Seller nor any of the Licensing Subsidiaries is in material violation or material default, and since the date on which each applicable Foreign Asset was first issued or transferred to the respective Licensing Subsidiary, has not received any written, or to the knowledge of Seller, not in writing, notice of any claim of material violation or material default, of any Law or regulation of any Governmental Authority with respect to any of the Foreign Assets. Except as set forth in Section 3.12(c)(iv) of the Seller Disclosure Schedule, no event has occurred with respect to any of the Foreign Assets which permits, or after notice or lapse of time or both would permit, revocation or termination thereof or that would reasonably be expected to result in any material violation or default, claim of material violation or default of any Law or regulation of any Governmental Authority with respect to any Foreign Assets or material impairment of the rights of the holder of such Foreign Asset.
| (d) | Each Foreign Asset is held solely by Seller or a Licensing Subsidiary. |
(ii) all such documents filed since the date that such Foreign Asset was first issued or transferred to Seller or any Subsidiary thereof were correct in all material respects at the time of filing.
Section 3.14 Exclusivity of Representations and Warranties. Neither Seller nor any of its Affiliates or Representatives is making any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to Seller, the Licensing Subsidiaries, the Seller Licenses or the Foreign Assets, except as expressly set forth in this Article 3 or in any certificate delivered by Seller pursuant to this Agreement, and Seller hereby disclaims any other representation, warranty, statement, or information made, communicated or furnished (orally or in writing) to Purchaser or its Affiliates or Representatives (including any opinion, information or advice that may have been or may be provided or made available to Purchaser by any Representative of Seller) in connection with the transactions contemplated hereby or by the Transaction Documents.
REPRESENTATIONS AND WARRANTIES OF TRUST
Trust hereby represents and warrants to Purchaser and Seller that the following statements are true and correct:
Section 4.1 Organization. Trust is duly organized and validly existing under the laws of the jurisdiction of its organization and has all requisite trust power and authority to carry on as a trust, except where the failure to be so organized, existing and in good standing or to have such
power and authority would not prevent, materially delay or materially impair Trust’s ability to consummate the transactions contemplated hereby. Trust has made available to Seller true, correct and complete copies of the Organizational Documents of Trust, as in effect on the date of this Agreement. Such Organizational Documents are in full force and effect, and Trust is not in violation of any such Organizational Documents.
Section 4.2 Power and Authority. Trust has all requisite trust power and authority to execute, deliver and perform this Agreement and the other Transaction Documents to which it is a party. The execution, delivery and performance by Trust of this Agreement and all the other Transaction Documents required to be executed and delivered by Trust in accordance with the provisions of this Agreement have been duly authorized by all necessary trust action on the part of Trust. This Agreement has been, and the other Transaction Documents to which Trust is a party have been, or will be, duly executed and delivered by Trust.
Section 4.3 Enforceability. This Agreement constitutes, and the other Transaction Documents to which Trust is a party constitute or will constitute, the legal, valid and binding obligations of Trust, enforceable against Trust in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, receivership, fraudulent transfer and other similar laws affecting creditors’ rights generally and by general principles of equity.
Section 4.4 Non-Contravention. Subject to the receipt of the FCC Consents, the Foreign Assets Acquisition Regulatory Approvals and compliance with any applicable requirements of the HSR Act and the giving of any post-Closing notifications required by the FCC or state or foreign Governmental Authorities, the execution, delivery and performance by Trust of this Agreement and the other Transaction Documents to which Trust is a party do not and will not violate or conflict with or result in a default or the breach of any term, condition or provision of, or require the consent of any other Person or give any Person any right of termination, amendment, acceleration or cancellation under, (a) any Law to which Trust is subject, (b) any judgment, order, writ, injunction, decree or award of any Governmental Authority or arbitrator that is applicable to Trust, (c) Trust’s Organizational Documents or (d) any material mortgage, indenture, agreement, contract, commitment, lease, plan, license or other instrument, document or understanding, oral or written, to which Trust is a party or subject.
Section 4.5 Litigation. Except for Actions affecting the wireless communications industry generally, no Action is pending or, to Trust’s knowledge, threatened against Trust or any Affiliate thereof that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the ability of Trust to consummate the transactions contemplated by this Agreement, or that seeks to enjoin this Agreement or the transactions contemplated hereby or otherwise prevent Trust from performing its obligations under this Agreement or consummating the transactions contemplated hereby. Neither Trust nor any Affiliate thereof is a party to or subject to the provisions of any judgment, order, writ, injunction, decree or award of any Governmental Authority or arbitrator that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the ability of Trust to consummate the transactions contemplated by this Agreement.
Section 4.6 Qualification. Trust is fully qualified under the Communications Act and the FCC Rules (a) to hold and receive FCC licenses generally, (b) to hold and receive the Seller Licenses, and the consummation of the transactions contemplated hereby will not cause Trust or such Affiliate to be ineligible to hold any Seller License, and (c) to be approved as the assignee of the Seller Licenses. Trust is in compliance with Section 310(b) of the Communications Act of 1934, as amended, and all FCC Rules promulgated thereunder with respect to alien ownership.
Section 4.7 No Brokers. Trust and its agents and Affiliates have incurred no obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payments in connection with this Agreement or the transactions contemplated hereby for which Seller or any Affiliate thereof could become liable or obligated.
Section 4.8 Exclusivity of Representations and Warranties. Neither Trust nor any of its Affiliates or Representatives is making any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to Trust, except as expressly set forth in this Article 4 or in any certificate delivered by Trust pursuant to this Agreement, and Trust hereby disclaims any such other representations or warranties.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as set forth in the disclosure schedules delivered by Purchaser to Seller immediately prior to the execution of this Agreement (the “Purchaser Disclosure Schedule”) (it being agreed that disclosure of any item in any section or subsection of a Purchaser Disclosure Schedule will apply only to the corresponding section or subsection of this Agreement and to any other section or subsection of this Agreement to the extent that the relevance of such item is reasonably apparent on its face in the Purchaser Disclosure Schedule), Purchaser hereby represents and warrants to Seller that the following statements are true and correct:
Section 5.1 Organization. Purchaser is duly organized and validly existing under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not prevent, materially delay or materially impair Purchaser’s ability to consummate the transactions contemplated hereby. Purchaser has made available to Seller true, correct and complete copies of the Purchaser Governing Documents, as in effect on the date of this Agreement. Such Purchaser Governing Documents are in full force and effect, and Purchaser is not in violation of any such Purchaser Governing Documents.
Section 5.2 Power and Authority. Purchaser has all requisite corporate or similar power and authority to execute, deliver and perform this Agreement and the other Transaction Documents to which it is a party. The execution, delivery and performance by Purchaser of this Agreement and all the other Transaction Documents required to be executed and delivered by Purchaser in accordance with the provisions of this Agreement have been duly authorized by all necessary corporate or similar action on the part of Purchaser. This Agreement has been, and the other Transaction Documents to which Purchaser is a party have been, or will be, duly executed and delivered by Purchaser.
Section 5.4 Enforceability. This Agreement constitutes, and the other Transaction Documents to which Purchaser is a party constitute or will constitute, the legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, receivership, fraudulent conveyance, fraudulent transfer and other similar laws affecting creditors’ rights generally and by general principles of equity.
Section 5.5 Non-Contravention. Subject to the receipt of the FCC Consents, the Foreign Assets Acquisition Regulatory Approvals and compliance with any applicable requirements of the HSR Act and the giving of any post-Closing notifications required by the FCC or state or foreign Governmental Authorities, the execution, delivery and performance by
Purchaser of this Agreement and the other Transaction Documents to which Purchaser is a party do not and will not violate or conflict with or result in a default or the breach of any term, condition or provision of, or require the consent of any other Person or give any Person any right of termination, amendment, acceleration or cancellation under, (a) any Law to which Purchaser is subject in any material respect, (b) any judgment, order, writ, injunction, decree or award of any Governmental Authority or arbitrator that is applicable to Purchaser, (c) the Purchaser Governing Documents or (d) any material mortgage, indenture, agreement, contract, commitment, lease, plan, license or other instrument, document or understanding, oral or written, to which Purchaser is a party or subject.
Section 5.6 Litigation. Except for Actions affecting the wireless communications industry generally, no Action is pending or, to Purchaser’s knowledge, threatened against Purchaser or any Affiliate thereof that seeks to enjoin this Agreement or the transactions contemplated hereby or otherwise prevent Purchaser from performing its obligations under this Agreement or consummating the transactions contemplated hereby. Neither Purchaser nor any Affiliate thereof is a party to or subject to the provisions of any judgment, order, writ, injunction, decree or award of any Governmental Authority or arbitrator that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the ability of Purchaser to consummate the transactions contemplated by this Agreement.
Section 5.7 Qualification. Purchaser is fully qualified under the Communications Act and the FCC Rules (a) to hold and receive FCC licenses generally, (b) to hold and receive the Seller Licenses, and the consummation of the transactions contemplated hereby will not cause Purchaser or such Affiliate to be ineligible to hold any Seller License, and (c) to be approved as the assignee of the Seller Licenses.
Section 5.8Valid Issuance of Purchaser Shares.
Section 5.9 Available Funds. Purchaser will have available to it funds sufficient to satisfy, no later than the date they become due, all of Purchaser’s obligations hereunder, including its payment obligations under Section 2.1(c) and obligation to consummate the transactions contemplated hereby and all fees and expenses of Purchaser related to the transactions contemplated hereby. Purchaser understands and acknowledges that under the terms of this Agreement, Purchaser’s obligation to consummate the transactions contemplated hereby or by any of the Transaction Documents is not in any way contingent upon or otherwise subject to Purchaser’s consummation of any financing arrangements, Purchaser’s obtaining of any financing (debt or equity) or the availability, grant, provision, or extension of any financing (debt or equity) to Purchaser or any of its Affiliates. There are no bankruptcy, insolvency, reorganization or receivership proceedings pending against, being contemplated by or, to the knowledge of Purchaser, threatened against Purchaser or any of its Affiliates.
Section 5.10 No Brokers. Purchaser and its agents and Affiliates have incurred no obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payments in connection with this Agreement or the transactions contemplated hereby for which Seller or any Affiliate thereof could become liable or obligated.
Section 5.11 Financial Statements. Purchaser has delivered to Seller its audited consolidated financial statements (including balance sheets, statements of income, statements of convertible preferred stock and stockholders’ deficit and statements of cash flows) for the fiscal years ended December 31, 2023 and December 31, 2024 (collectively, the “Financial Statements”). The Financial Statements, together with the notes thereto, have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis throughout the periods indicated. The Financial Statements fairly present in all material respects the financial condition and operating results of Purchaser as of the dates, and for the periods, indicated therein.
Section 5.12 Exclusivity of Representations and Warranties. Neither Purchaser nor any of its Affiliates or Representatives is making any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to Purchaser, its Subsidiaries or the Purchaser Shares, except as expressly set forth in this Article 5 or in any certificate delivered by Purchaser pursuant to this Agreement, and Purchaser hereby disclaims any other representation, warranty, statement, or information made, communicated or furnished (orally or in writing) to Seller or its Affiliates or Representatives (including any opinion, information or advice that may have been or may be provided or made available to Seller by any Representative of Purchaser) in connection with the transactions contemplated hereby or by the Transaction Documents.
COVENANTS AND OTHER AGREEMENTS
Section 6.1 Covenants of Purchaser, Trust and Seller Pending the Spectrum Acquisition Closing.
cause to be done, all things necessary and consistent with applicable Law to carry out all of their respective obligations under this Agreement and to consummate the transactions contemplated hereunder, as soon as reasonably practicable, but in any event prior to the Spectrum Transfer Outside Date and the Spectrum Acquisition Outside Date (as applicable).
(A) and (B), the “Final Remaining Assets Transfer Date”), Seller will not, and will cause each
of its Affiliates and Representatives not to:
| (e) | From the date hereof until later of (x) the Spectrum Acquisition Closing and |
(y) the Final Remaining Asset Transfer Date, Seller will not, and will cause its Subsidiaries not to, incur any new indebtedness for borrowed money secured by the Foreign Assets and/or the equity
interests of the Licensing Subsidiaries except to the extent permitted under contracts in existence as of the date hereof, and Seller will remain solely responsible for the full repayment of any such incremental indebtedness without increasing the Total Payoff Consideration Amount.
Section 6.2Compliance with Law; Compliance with Licenses; Non-Solicitation; Notice of Certain Events.
| (a) | Compliance with Law. |
| (b) | Compliance with Licenses. |
remain in full force and effect in the ordinary course consistent with past practice in all material respects, except as otherwise instructed in writing by Purchaser, including those actions set forth in Annex B; provided; however, that nothing in this Agreement requires Seller or its Affiliates to (1) eliminate or reduce the impact of any matters disclosed in Section 6.2(b)(i) of the Seller Disclosure Schedule, or (2) take, offer, accept, agree to, commit to, or consent to any action, obligation, liability, condition, sanction, or other measure that, individually or together, would constitute a Seller Burdensome Condition, and (B) Seller will not, and will cause its Subsidiaries not to, enter into in any transaction or take any action that would reasonably be expected to materially and adversely affect the validity or any right, title, interest or priority of the Seller Licenses. Without limiting the foregoing, Seller will not, nor permit its applicable Subsidiaries to, seek the modification of any Seller Licenses without the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed).
(A) Seller will, and will cause its Subsidiaries to, use reasonable best efforts to take all necessary actions to maintain the validity and all rights, title, interests, and priorities of the Foreign Assets and to ensure that the Foreign Assets remain in full force and effect in the ordinary course consistent with past practice in all material respects, except as otherwise instructed in writing by Purchaser, including those actions set forth in Annex B; provided; however, that nothing in this Agreement requires Seller or its Affiliates to (1) eliminate or reduce the impact of any matters disclosed in Section 6.2(b)(ii) of the Seller Disclosure Schedule, or (2) take, offer, accept, agree to, commit to, or consent to any action, obligation, liability, condition, sanction, or other measure that, individually or together, would constitute a Seller Burdensome Condition; provided, further, that once the Expense Cap has been reached, Seller will only be obligated under this Section 6.2(b)(ii) to the extent the costs and expenses related thereto are subject to reimbursement by Purchaser under, and continue to be reimbursed by Purchaser pursuant to, Section 11.15(b) notwithstanding the fact that the Expense Cap has been reached, and (B) Seller will not, and will cause its Subsidiaries not to, enter into any transaction or take any action that would reasonably be expected to materially and adversely affect the validity or any right, title, interest or priority of the Foreign Assets. Without limiting the foregoing, Seller will not, nor permit its applicable Subsidiaries to, seek the modification of any Foreign Assets without the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed).
without the prior written consent of Purchaser and Seller and (ii) each Party will cooperate with each other and use reasonable best efforts to maintain the validity and all rights, title, interests, and priorities of the Seller Licenses, and Trust will act at Purchaser’s direction, in respect of any necessary and appropriate steps contemplated by this Section 6.2(b)(iii).
| (c) | Non-Disposition. |
Section 6.3 Governmental Filings.
(to the extent the Parties agree that such filings, consents, waivers, approvals, authorizations, permits or orders are necessary in order to consummate the transactions contemplated by this Agreement), including in connection with the Foreign Assets Acquisition Regulatory Approvals, but in any event prior to the Spectrum Transfer Outside Date and the Spectrum Acquisition Outside Date (as applicable).
promptly keeping the other Parties informed of any material communication received by such Party from any Governmental Authority relating to the Regulatory Approvals and the status of other matters relating to completion of the transactions contemplated hereby(and provide each other copies of all written communications), (iv) promptly delivering to the other Party any notice, inquiry or request for additional or supplemental information received by it from any Governmental Authority and cooperating in good faith with the other Parties in formulating a response any such notice, inquiry or request, (v) providing any additional or supplemental information available reasonably requested in connection with any Regulatory Approval pursuant to applicable Laws, (vi) consulting with, and providing the other Parties with a reasonable advance opportunity to review and comment on any filing, registration, declaration, notice, analysis, appearance, presentation, memorandum, brief, argument, opinion, proposal, or other communication, whether oral or written, made or submitted to any Governmental Authority in connection with the transactions contemplated hereby or by the Transaction Documents, and each Party will consider in good faith the comments of the other in connection therewith, and (vii) consulting and cooperating with the other Party in advance of any meeting or oral communications (whether formal or informal), with, any Governmental Authority relating to the transactions contemplated hereby or by the Transaction Documents or regarding any Action by a private party relating to the approval of the transactions contemplated hereby by any Governmental Authority. Notwithstanding the foregoing, each Party may, as it deems necessary, appropriate or advisable, designate any competitively sensitive material provided to the other Parties under this Section 6.3 as “outside counsel only.” Such materials and information contained therein will be given only to the outside legal counsel of the recipient Party, and the recipient Party will cause such outside counsel not to disclose such materials or information to any Representatives of the recipient Party or its Affiliates, unless express written permission is obtained in advance from the disclosing Party. No Party will participate in any meeting or discussion expected to address substantive matters related to the transactions contemplated hereby, either in person or by telephone, with any Governmental Authority unless, to the extent not prohibited by such Governmental Authority, it provides the other Parties with advance notice and a reasonable opportunity to attend and participate. The Parties will advise each other reasonably in advance of any understandings, undertakings or agreements (oral or written) that any of them intends to propose to make or enter into with the FTC, the DOJ, the FCC or any other Governmental Authority regarding the transactions contemplated hereby (and neither Seller nor Purchaser will propose or agree to any such actions without the other’s prior written consent). To the extent that confidential information of either Party is required to be filed with any Governmental Authority, the Party submitting such information will, prior to such disclosure, (A) notify the Party whose confidential information is to be disclosed, and (B) together with the Party whose information is to be disclosed, seek and use commercially reasonable efforts to secure confidential treatment of such information pursuant to the applicable protective order or other confidentiality procedures of such Governmental Authority.
United States v. Deutsche Telekom AG, et al, Case No. 1:19-cv-02232, ECF No. 139 (D.D.C. Oct. 23, 2023) (the “2020 Final Judgment”), each of Purchaser and Seller will use its reasonable best efforts to take, or cause its Subsidiaries to take, promptly any and all actions to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under applicable Laws as may be required by any Governmental Authority, so as to enable the Parties to effectuate the Spectrum Transfer Closing and Spectrum Acquisition Closing as soon as practicable and, in any event, prior to the respective Spectrum Transfer Outside Date and Spectrum Acquisition Outside Date (collectively, the “Remedial Actions”), including, but not limited to: (i) responding to and complying with, as promptly as reasonably practicable, any request for information or documentary material regarding the transactions from any relevant Governmental Authority, (ii) causing the prompt expiration or termination of any applicable waiting period and clearance or approval by any relevant Governmental Authority, including defense against, and the resolution of, any objections or challenges, in court or otherwise, by any relevant Governmental Authority preventing consummation of the transactions, (iii) committing to and effecting, by consent decree, hold separate orders, trust or otherwise, (A) the sale, license, holding separate or other disposition of assets or businesses of Purchaser, Seller or their respective Subsidiaries, (B) terminating, relinquishing, modifying or waiving existing relationships, ventures, contractual rights, obligations or other arrangements of Purchaser, Seller or their respective Subsidiaries, and
(C) creating any relationships, ventures, contractual rights, obligations or other arrangements of Purchaser, Seller or their respective Subsidiaries, and (iv) taking or committing to take actions that after the Spectrum Transfer Closing Date or Spectrum Acquisition Closing Date (as applicable) would limit the freedom of action of Purchaser, Seller or their respective Subsidiaries with respect to their respective business; provided that, notwithstanding anything to the contrary, neither Seller nor Purchaser nor any of their respective Subsidiaries will be required to take, offer or accept, or agree, commit to agree or consent to, any action, undertaking, term, condition, liability, obligation, commitment, sanction or other measure (including any Remedial Actions) that, individually or in the aggregate, (x) with respect to Seller and its Subsidiaries, constitutes a Seller Burdensome Condition (whether or not expressly conditioned upon consummation of the Spectrum Transfer Closing or Spectrum Acquisition Closing) and (y) with respect to Purchaser and its Subsidiaries, constitutes a Purchaser Burdensome Condition (whether or not expressly conditioned upon consummation of the Spectrum Transfer Closing or Spectrum Acquisition Closing).
Subsidiaries will be required to take, offer or accept, or agree, commit to agree or consent to, any action, undertaking, term, condition, liability, obligation, commitment, sanction or other measure (including any Remedial Actions) that, individually or in the aggregate, (x) with respect to Seller and its Subsidiaries, constitutes a Seller Burdensome Condition (whether or not expressly conditioned upon consummation of the Spectrum Transfer Closing or Spectrum Acquisition Closing) and (y) with respect to Purchaser and its Subsidiaries, constitutes a Purchaser Burdensome Condition (whether or not expressly conditioned upon consummation of the Spectrum Transfer Closing or Spectrum Acquisition Closing). In addition, each of Purchaser and Seller will cooperate with each other and use its respective reasonable best efforts to contest, defend and resist any such litigation, action or proceeding and to have vacated, lifted, reversed or overturned any order, writ, assessment, judgment, ruling, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays, interferes with or restricts consummation of the transactions contemplated hereby as promptly as practicable and in any event no later than three (3) Business Days prior to the Spectrum Transfer Outside Date or Spectrum Acquisition Outside Date; provided that, notwithstanding anything to the contrary, neither Seller nor Purchaser nor any of their respective Subsidiaries will be required to take, offer or accept, or agree, commit to agree or consent to, any action, undertaking, term, condition, liability, obligation, commitment, sanction or other measure (including any Remedial Actions) that, individually or in the aggregate, (x) with respect to Seller and its Subsidiaries, constitutes a Seller Burdensome Condition (whether or not expressly conditioned upon consummation of the Spectrum Transfer Closing or Spectrum Acquisition Closing) and (y) with respect to Purchaser and its Subsidiaries, constitutes a Purchaser Burdensome Condition (whether or not expressly conditioned upon consummation of the Spectrum Transfer Closing or Spectrum Acquisition Closing).
regarding all filings and the obtaining of all approvals referred to in this Section 6.3. Notwithstanding anything to the contrary herein, in no event, without the other Party’s prior written consent (which consent will not be unreasonably withheld, conditioned or delayed), will a Party: (i) withdraw its filing under the HSR Act with respect to the transactions contemplated by this Agreement or (ii) enter into any agreement or commitment with a Governmental Authority to
(x) extend the waiting period under the HSR Act or (y) not close the transactions contemplated by this Agreement or otherwise delay the Spectrum Transfer Closing or Spectrum Acquisition Closing, in each case, if such action is reasonably likely to materially delay the Spectrum Transfer Closing or the Spectrum Acquisition Closing. For the avoidance of doubt, this clause (ii) expressly applies to any “timing agreements” with any Governmental Authority.
Section 6.4Termination of Liens and other Arrangements; Repayment of Indebtedness; Discharge of Debt Service Loans.
Spectrum Acquisition Closing, then Seller or Guarantor, as applicable, will issue notices of redemption or prepayment in accordance with the notice provisions thereunder and at or prior to the Spectrum Acquisition Closing, Trust and Seller will, and will cause their respective Subsidiaries to, deliver, or cause to be delivered, in form and substance reasonably satisfactory to Purchaser and in accordance with the terms of the Incremental Debt, customary evidence of satisfaction and discharge (along with UCC-3s) with respect thereto, that will evidence the termination of all applicable obligations and liabilities thereunder and will provide for the release of all Liens in connection with such Incremental Debt. With respect to the Convertible Notes Indenture and any Incremental Debt outstanding that is not required to be redeemed or repaid in order to permit the Spectrum Acquisition Closing, Seller and Guarantor, as applicable, will deliver or cause to be delivered, in form and substance reasonably satisfactory to Purchaser, customary evidence of release of all Liens on the assets of Trust securing the Convertible Notes and any such Incremental Debt (together with termination statements). The documentation, together with the required discharge statements, termination of all Liens, termination statements and originals of all pledged collateral to be returned to Trust described in this clause (c) is collectively referred to as the “Payoff Letters”.
Section 6.5Guarantor and Obligor of the EchoStar Notes; Debt Service Loans.
will pay to the applicable trustees under each EchoStar Indenture for the benefit of the applicable EchoStar Noteholders in accordance with the EchoStar Indentures. Exhibit G sets forth the payment instructions for each EchoStar Indenture.
Section 6.6Customer Relations.
Section 6.7Interim Testing in Connection with the Seller Licenses and Foreign Assets.
Acquisition Closing, all right, title, and interest of Seller and such Subsidiaries in and to each Remaining Foreign Asset, whether by way of an equity transfer, asset transfer or otherwise, in each case through a structure to be mutually agreed upon by Purchaser and Seller, for no additional consideration, free and clear of all Liens, in each case, upon the receipt of the necessary consents, waivers, approvals, authorizations, permits or orders from the appropriate Governmental Authorities in respect of such Remaining Foreign Asset; provided, however, that Seller’s obligations under this Section 6.8 will terminate with no further liability or obligation if the Parties are unable to obtain any of the necessary consents, waivers, approvals, authorizations, permits or orders from the applicable Governmental Authorities or Third Parties within four years after the Spectrum Acquisition Closing Date (the “Post-Closing Obligations Deadline”). Purchaser and Seller acknowledge and agree that (i) the failure or inability to transfer any Foreign Assets or other rights necessary for Purchaser’s use of such Foreign Assets will not constitute a failure to satisfy any closing condition set forth in Article 7 or Article 8, nor will such failure be taken into account when determining whether any closing conditions in those Articles have been satisfied, (ii) such failure will not give rise to any right to terminate or delay the Spectrum Transfer Closing or the Spectrum Acquisition Closing and (iii) such failure will not reduce, withhold or set off any portion of the Total Consideration Amount.
acquire Option Exercise Assets this Section 6.8(d) will not otherwise modify or excuse Seller’s obligations with respect to the Seller Licenses, ITU Priorities and other Foreign Assets under this Agreement.
Section 6.9 Public Announcements. On and after the date hereof and through the Spectrum Acquisition Closing, Seller and Purchaser will consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement or the transactions contemplated hereby, and no Party will issue any press release or make any public statement; provided, that Purchaser may issue any press release or make any public statement with Seller’s prior written approval and Seller may issue any press release or make any public statement with Purchaser’s prior written approval, in each case, with such approval not being unreasonably withheld, conditioned or delayed; provided, further, that each of Seller and Purchaser may make any public statement regarding this Agreement or any of the other Transaction Documents to the extent that such statements are not inconsistent in tone and substance with previous press releases, public disclosures or public statements made jointly by the Parties or approved by the Parties. Notwithstanding the foregoing, no such approval will be necessary to the extent disclosure is required by applicable Law or any national securities exchange, but in such circumstances, neither Seller nor Purchaser will make such disclosure without first using its commercially reasonable efforts to provide to the other Party an advance copy of any such disclosure and a reasonable opportunity to review and comment (and such comments will be considered by the disclosing Party in good faith).
Section 6.10 Certain Notices. From the date hereof through the Spectrum Acquisition Closing Date, each of Seller and Trust will provide Purchaser with prompt written notice of its knowledge of any (a) occurrence of any Default (as applicable, as defined in each of the Debt Service Loan Agreement or the EchoStar Indentures), (b) dispute, litigation, investigation or proceeding between Seller (or any of its Subsidiaries) or Trust, on the one hand, and any arbitrator or Governmental Authority, on the other hand, (c) filing or commencement of, or any material development in, any litigation or proceeding affecting Seller (or any of its Subsidiaries) or Trust, in each case in clauses (a), (b) and (c), that has had or would reasonably be expected to have a Material Adverse Effect. Each notice pursuant to this Section 6.10 will be accompanied by a written statement (i) that such notice is being delivered pursuant to this Section 6.10 and (ii) setting forth details of the occurrence referred to therein and stating what action Seller or Trust (as applicable) has taken and proposes to take with respect thereto.
Section 6.11Certain Trust and Debt Service Loan Agreement Matters.
(A) a Subsidiary of Trust, (B) an Affiliate of Trust or (C) a natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of one or more natural Persons)) or (ii) consent to any assignment or transfer by Purchaser of any of its rights or obligations under the Debt Service Loan Agreement (including pursuant to Section 10.07 of the Debt Service Loan Agreement).
10.01 of the Debt Service Loan Agreement, without the prior written consent of Seller.
personnel, properties, books, records, correspondence (including with Governmental Authorities), technical materials, compliance documentation, filings, contracts, and any other information, in each case that relates to the Seller Licenses or is otherwise reasonably necessary or useful for Seller to comply with its obligations under this Agreement, including: (i) monitoring compliance with applicable Laws, (ii) responding to inquiries or audits from any Governmental Authority, (iii) preparing or making any required filings, notifications, or submissions, (iv) maintaining the validity and all rights, title, interests, and priorities of the Seller Licenses, or (v) performing its obligations under this Agreement.
6.12 shall constitute “Confidential Information” (as defined in the Confidentiality Agreement) of
Purchaser.
CONDITIONS TO SPECTRUM TRANSFER CLOSING
Section 7.1 Conditions to the Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement to occur at the Spectrum Transfer Closing is subject to the satisfaction on or prior to the Spectrum Transfer Closing Date of each of the following conditions, unless waived in writing by Purchaser:
closing condition, none of the representations and warranties of Seller contained in Article 3 or Trust contained in Article 4 will be breached or deemed breached as a result of any matter, fact or circumstance relating to the Foreign Assets (other than such representations and warranties of Seller set forth in Section 3.13, which will be subject to clause (iii) herein).
Section 7.2 Conditions to the Obligations of Seller. The obligation of Seller to consummate the transactions contemplated by this Agreement to occur at the Spectrum Transfer Closing is subject to the satisfaction on or prior to the Spectrum Transfer Closing Date of each of the following conditions, unless waived in writing by Seller:
and (ii) the representations and warranties of Trust contained in Article 4 and of Purchaser contained in Article 5 (other than the Purchaser Fundamental Representations) will be true and correct as of the Effective Date and as of the Spectrum Transfer Closing Date as if made on such date (except that representations and warranties that are made as of a specific date need to be so true and correct only as of such date), except where such failure of any such representation and warranty to be so true and correct would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair Purchaser’s ability to consummate the transactions contemplated hereby or to have a material adverse effect on the ability of Purchaser to perform its obligations under this Agreement; provided that, in each case, if any representation or warranty made by Seller or Trust includes within its terms a materiality or Material Adverse Effect qualifier, such qualifier will be disregarded solely for purposes of determining compliance with this Section 7.2(b).
Section 7.3 Conditions to the Obligations of Trust. The obligation of Trust to consummate the transactions contemplated by this Agreement to occur at the Spectrum Transfer Closing is subject to the receipt of a certificate from an authorized officer of the Purchaser, dated as of the Spectrum Transfer Closing Date, certifying that:
CONDITIONS TO SPECTRUM ACQUISITION CLOSING
Section 8.1 Conditions to the Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement to occur at the Spectrum Acquisition Closing is subject to the satisfaction on or prior to the Spectrum Acquisition Closing Date of each of the following conditions, unless waived in writing by Purchaser:
(iii) herein).
Section 8.2 Conditions to the Obligations of Seller. The obligation of Seller to consummate the transactions contemplated by this Agreement to occur at the Spectrum Acquisition Closing is subject to the satisfaction on or prior to the Spectrum Acquisition Closing Date of each of the following conditions, unless waived in writing by Seller:
certifying on behalf of Purchaser, that the conditions applicable to Purchaser set forth in Section 8.2(b) and Section 8.2(c) have been satisfied.
| (g) | The Spectrum Transfer Closing will have occurred. |
Section 8.3 Conditions to the Obligations of Trust. The obligation of Trust to consummate the transactions contemplated by this Agreement to occur at the Spectrum Acquisition Closing is subject to the receipt of a certificate from an authorized officer of the Purchaser, dated as of the Spectrum Acquisition Closing Date, certifying:
TERMINATION
Section 9.1 Termination. This Agreement may be terminated, and the transactions contemplated hereunder abandoned, without any further obligation of any Party (except as set forth herein) at any time prior to the Spectrum Acquisition Closing Date as follows:
| (a) | by mutual written consent of ▇▇▇▇▇▇▇▇▇ and Seller; |
(i) would give rise to the failure of a condition set forth in Section 7.2 (in the event the Spectrum Transfer Closing has not yet occurred) or Section 8.2 (in the event the Spectrum Transfer Closing has occurred but the Spectrum Acquisition Closing has not yet occurred), (ii) cannot be cured prior to the Spectrum Transfer Outside Date (in the event the Spectrum Transfer Closing has not yet occurred) or Spectrum Acquisition Outside Date (in the event the Spectrum Transfer Closing has occurred but the Spectrum Acquisition Closing has not yet occurred) or, if capable of being cured, has not been cured by the earlier of (x) two Business Days prior to the Spectrum Transfer Outside Date (in the event the Spectrum Transfer Closing has not yet occurred) or Spectrum Acquisition Outside Date (in the event the Spectrum Transfer Closing has occurred but the Spectrum Acquisition Closing has not yet occurred) and (y) the date that is 30 days following delivery of written notice of such breach or failure to perform and (iii) has not been waived by Seller;
to the Spectrum Transfer Outside Date (in the event the Spectrum Transfer Closing has not yet occurred) or Spectrum Acquisition Outside Date (in the event the Spectrum Transfer Closing has occurred but the Spectrum Acquisition Closing has not yet occurred) or, if capable of being cured, has not been cured by the earlier of (x) two Business Days prior to the Spectrum Transfer Outside Date (in the event the Spectrum Transfer Closing has not yet occurred) or Spectrum Acquisition Outside Date (in the event the Spectrum Transfer Closing has occurred but the Spectrum Acquisition Closing has not yet occurred) and (y) the date that is 30 days following delivery of written notice of such breach or failure to perform and (iii) has not been waived by Purchaser; and
Section 9.2Effect of Termination; Certain Remedies.
Section 10.1 Survival. All representations and warranties made by Purchaser or Seller in this Agreement will survive for a period lasting 12 months after the Spectrum Acquisition Closing and will expire at such time, except for the Purchaser Fundamental Representations and the Seller Fundamental Representations which will survive for a period lasting three years after the Spectrum Acquisition Closing and then expire at such time. All representations and warranties made by Trust in this Agreement will terminate and expire at the Spectrum Acquisition Closing. Except for Section 6.2(b)(ii) as applicable to obligations to be performed prior to or at the Spectrum Acquisition Closing in respect of the ITU Priorities (which will survive for six (6) months after the Spectrum Acquisition Closing), all covenants and agreements set forth herein which by their terms contemplate actions or impose obligations prior to the Spectrum Acquisition Closing will terminate and expire at the Spectrum Acquisition Closing Date. All covenants and agreements set forth herein which by their terms contemplate actions or impose obligations on or following the Spectrum Acquisition Closing will survive the Spectrum Acquisition Closing and remain in full force and effect in accordance with their terms. Any claim by a Party based upon breach of any representation, warranty, covenant or agreement must be submitted to the other Party prior to the expiration of such survival period.
Section 10.2General Indemnification Obligation.
of any claims by Third Parties arising out of, in connection with or relating to the ownership or operation of (i) the Seller Licenses by Seller and its Affiliates prior to the Spectrum Transfer Closing Date and (ii) the Foreign Assets by Seller and its Affiliates prior to the Spectrum Acquisition Closing Date or, to the extent any such Foreign Asset constitutes a Remaining Foreign Asset, prior to the date in which such Remaining Foreign Asset was transferred to Purchaser pursuant to Section 6.8, in each case, to the extent that such claims by Third Parties do not result from, relate to, or arise out of an Interim Period Testing.
such payment to the Indemnified Party, then the Indemnified Party will promptly repay to the Indemnifying Party any amount that would not have been payable under this Article 10 had the amount from the Collateral Source been received at the time of the original payment.
Section 10.4Indemnification Procedures.
(ii) agree that the Indemnified Party is entitled to receive the part, but not all, of the Claimed Amount (the “Agreed Amount”) (in which case the Response will be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire
transfer), or (iii) dispute that the Indemnified Party is entitled to receive any of the Claimed Amount (whereupon the Indemnifying Party and the Indemnified Party agree that the dispute will be resolved in accordance with Section 11.9).
Section 10.5 Tax Investigations. Notwithstanding anything in this Agreement to the contrary, in no event will Purchaser or any of its Affiliates have any rights with respect to any audit, examination, contest, proceeding or other Action relating to Taxes or any Tax Return of Seller or any of its Affiliates (other than with respect to any Taxes with respect to the Seller Licenses or Foreign Assets) or any Taxes or Tax Returns of or with respect to any consolidated, combined, affiliated, aggregated, unitary or similar group for Tax purposes that includes Seller or any of its Affiliates (including by reason of any Person being treated as an entity disregarded as separate from Seller or such Affiliate for Tax purposes). Notwithstanding anything in this Agreement to the contrary, in no event will Seller or any of its Affiliates have any rights with respect to any audit, examination, contest, proceeding or other Action relating to Taxes or any Tax Return of Purchaser or any of its Affiliates (other than with respect to any Taxes with respect to the Seller Licenses or Foreign Assets) or any Taxes or Tax Returns of or with respect to any consolidated, combined, affiliated, aggregated, unitary or similar group for Tax purposes that includes Purchaser or any of its Affiliates (including by reason of any Person being treated as an entity disregarded as separate from Purchaser or such Affiliate for Tax purposes).
Section 10.6 Treatment of Payments. Any payment made pursuant to the indemnification obligations arising under Section 10.2 will be treated as an adjustment to the Purchase Price to the extent permitted under applicable law.
Section 10.7 Effect of Investigation. The representations, warranties, covenants and agreements of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, will not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or that any such covenant or agreement is, was or might have been breached or not fulfilled or by reason of the Indemnified Party’s waiver of any condition set forth in Article 7 or Article 8, as applicable.
Section 10.8 Exclusive Remedy. Following the Spectrum Acquisition Closing, the Parties acknowledge and agree that the indemnification rights of the Parties and their Affiliates under this Article 10 are their exclusive remedy with respect to any and all claims arising out of or in relation to this Agreement and the Transaction Documents, provided that the foregoing will not limit any Party’s rights to specific performance or injunctive relief or any Party’s rights or remedies based on Fraud.
MISCELLANEOUS
connection with the transactions contemplated hereby pursuant to the terms of the mutual non- disclosure agreement, dated June 11, 2025, between Purchaser and Seller (the “Confidentiality Agreement”). The Confidentiality Agreement will continue in full force and effect until the expiration of the Confidentiality Agreement in accordance with its terms; provided, that following the Spectrum Transfer Closing Date, (i) “Confidential Information” (as defined in the Confidentiality Agreement) will exclude information that relates to the Seller Licenses or Foreign Assets or Purchaser’s rights and benefits thereunder or hereunder and (ii) Purchaser will be deemed the “Disclosing Party” (as defined in the Confidentiality Agreement) with respect to such information contemplated by clause (i) as of the Spectrum Transfer Closing Date. If for any reason this Agreement is terminated prior to the Spectrum Transfer Closing Date, the Confidentiality Agreement will nonetheless continue in full force and effect in accordance with its terms and will be automatically extended for an additional two (2) years.
(iv) such assignment would not reasonably be expected to prevent or materially delay the Spectrum Transfer Closing or Spectrum Acquisition Closing, as applicable.
Section 11.3 Further Assurances. Each Party agrees to use reasonable best efforts to cooperate with the other Party and to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable Law, and execute and deliver such documents and other instruments, in each case, consistent with this Agreement and the Transaction Documents and as may be reasonably required to consummate the transactions contemplated hereunder. Notwithstanding anything to the contrary in this Agreement, no requirement to use “reasonable best efforts” under this Agreement will require a Party or its Subsidiaries to pay any consent or similar fees to a Third Party or to agree to any adverse amendment to any contract or any concession with a Third Party. Such efforts will be at the cost of the requesting Party.
Section 11.4Entire Agreement; Amendment.
No waiver of any term or provision of this Agreement will be effective unless in writing, signed by the Party against whom enforcement of the same is sought. The grant of a waiver in one instance does not constitute a continuing waiver in all similar instances. No failure or delay in exercising any right, remedy, power or privilege under this Agreement or the documents referred to in this Agreement will be deemed to or will constitute a waiver of such right, remedy, power or privilege, and no single or partial exercise of any such right, remedy power, or privilege will be deemed to or will preclude any other or further exercise of such right, remedy, power or privilege or the exercise of any other right, remedy, power or privilege hereof.
All notices and other communications required or permitted hereunder will be in writing and given as follows:
If to Purchaser, to:
Space Exploration Technologies Corp. 1 Rocket Road
Hawthorne, California 90250
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
with a required copy (which will not itself constitute proper notice) to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
New York, New York 10166-0193 Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ If to Seller, to:
EchoStar Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Chief Legal Officer
Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
witharequiredcopy(whichwillnotitselfconstituteproper notice) to:
Email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ and
White & Case LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ If to Trust, to:
Spectrum Business Trust 2025-1
c/o The Bank of New York Mellon Trust Company, N.A. Corporate Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
Jacksonville, FL 32256
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇
with a required copy (which will not itself constitute proper notice) to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ▇▇▇ ▇▇▇▇ ▇▇▇
New York, NY 10166 Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ and
White & Case LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
or to such other address as the addressee may have specified in a notice duly given to the sender as provided herein. Such notice or other communication will be deemed to have been duly given or made: (i) upon receipt if delivered personally, (ii) upon receipt of an electronic transmission, upon confirmation of such receipt in writing (which may be via email) by the recipient thereof, (iii) three Business Days after deposit in the mail, if sent by registered or certified mail, postage prepaid, or (iv) on the next Business Day after deposit with an overnight courier, if sent by overnight courier.
Section 11.7 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, will be governed by, and construed in accordance with, the Laws of the State of New York, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
Section 11.8 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 11.8.
Section 11.9 Submission to Jurisdiction. Any Action based upon, arising out of or related to this Agreement or the transactions, contemplated hereby, including any question regarding its existence, validity or termination will be brought exclusively in the courts of the State of New York, sitting in New York County, and the United States District Court for the Southern District
of New York, and any appellate courts from any thereof. Each party irrevocably submits to the exclusive jurisdiction of such court for the purpose of any such Action and waives any objection to venue or forum non conveniens.
Section 11.10 Specific Performance. The Parties acknowledge that, in view of the uniqueness of the transactions contemplated by this Agreement, each of the Parties would not have an adequate remedy at law for money damages in the event that this Agreement has not been performed in accordance with its terms, and therefore agrees that, in addition to all other remedies available at law or in equity, each of the other Parties will be entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement by the others (as applicable), and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the others (as applicable). Each Party agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other Party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity. Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement will not be required to provide any bond or other security in connection with any such order or injunction. If, on or prior to the termination of this Agreement pursuant to Section 9.1, any Party brings any Action, in each case in accordance with this Section 11.10, to enforce specifically the performance of the terms and provisions hereof by any other Party, the Spectrum Transfer Outside Date or Spectrum Acquisition Outside Date, as applicable, will automatically be extended (x) for the period during which such Action is pending or (y) by such other time period as may be determined by the court presiding over such Action, as the case may be.
Section 11.11 No Benefit to Others. Except with respect to the provisions of Section 10.2, and Section 11.18, the representations, warranties, covenants and agreements contained in this Agreement are for the sole benefit of the Parties hereto and their heirs, executors, administrators, legal representatives, successors and permitted assigns, and they will not be construed as conferring any rights on any other Persons.
Section 11.12 Interpretation. The table of contents and all section headings contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and will not affect in any way the meaning or interpretation of this Agreement. Unless otherwise specified, any reference herein to a Section, Article, Schedule or Exhibit will be a reference to such Section or Article of, or Schedule or Exhibit to, this Agreement. Words used herein, regardless of the number and gender specifically used, will be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine, or neuter, as the context requires. Whenever used in this Agreement, the word “including,” and variations thereof, even when not modified by the phrase “but not limited to” or “without limitation,” will not be construed to imply any limitation and will mean “including but not limited to.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to the Agreement as a whole and not to any particular provision in this Agreement. The term “or” is not exclusive. The word “will” will be construed to have the same meaning and effect as the word “shall.” References to days mean calendar days unless otherwise specified. All references to “dollars” or “$” or “US$” in this Agreement or any Transaction Document refer to United States dollars, which is the currency used for all purposes in this Agreement and any
Transaction Document. Except as otherwise specified, (i) references to any Law will be deemed to refer to such Law as amended from time to time and the rules and regulations promulgated thereunder, (ii) references to any Governmental Authority will include any successor agency of such Governmental Authority, and (iii) references from or through any date mean from and including or through and including, respectively. Notwithstanding anything to the contrary in this Agreement, any and all representations and warranties made with respect to the Foreign Assets in this Agreement (other than such representations and warranties set forth in Section 3.13), are made as of the Effective Date and are qualified by the Seller’s knowledge.
Section 11.13 Severability. Any provision of this Agreement that is determined to be invalid or unenforceable in any jurisdiction will be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and such invalidity or unenforceability in any jurisdiction will not invalidate or render unenforceable such provisions in any other jurisdiction. Moreover, the Parties agree that any such invalid or unenforceable provision will be enforced to the maximum extent permitted by law in accordance with the intention of the Parties as expressed by such provision.
Section 11.14 Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts and any Party hereto may execute any such counterpart, each of which when executed and delivered will be deemed to be an original and all of which counterparts taken together will constitute but one and the same instrument. This Agreement will become binding when one or more counterparts taken together will have been executed and delivered by all of the Parties. This Agreement may be executed electronically (including by means of .pdf or similar graphic reproduction format or by means of digital signature software, e.g. DocuSign or Adobe Sign) and delivered by e-mail or other similar means of electronic transmission, and any electronic signature will constitute an original for all purposes.
U.S. (borne by Seller) and international (borne by Purchaser, subject to the Expense Cap), to the
extent and for so long as Purchaser requests Seller to maintain such satellites in order to preserve the Foreign Assets; (ii) for Seller’s expenses and filing fees related to international regulatory filings, including the Foreign Assets Acquisition Regulatory Approvals, or actions taken by Seller at the direction of Purchaser with respect to the Foreign Assets; and (iii) for Seller’s active participation in international regulatory and standards-based bodies, including World Radiocommunication Conference and 3GPP. The amounts payable by Purchaser under clauses (i), (ii) and (iii) of the preceding sentence, together with the Specified Costs, will not exceed $100,000,000 in the aggregate (the “Expense Cap”). To the extent Purchaser directs Seller to take any action outside the ordinary course of business for the purpose of preserving the Foreign Assets or transferring or preserving any international authorizations, licenses, rights and priorities associated with the Foreign Assets, Purchaser will promptly reimburse Seller for all costs and expenses incurred in connection therewith, and such costs and the obligation to reimburse will not be subject to the Expense Cap. The Parties will cooperate with one another to reduce costs and expenses to the extent reasonably practical. Seller will be responsible for all domestic costs, operating expenses and filing fees in relation to preserving the Seller Licenses.
Section 11.16 Time of Essence. Time is of the essence with regard to all dates and time periods set forth or referred to in this Agreement.
Section 11.17 No Presumption Against Drafting Party. Each of the Parties acknowledges that each has been represented by legal counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.
based upon any theory that seeks to impose liability of an entity against its owners or Affiliates) arising out of, in connection with or related in any manner to the items in the immediately preceding clauses (i) through (iv). To the maximum extent permitted by applicable Law, each Party waives and releases all such Actions against any such Non-Party Affiliate. For avoidance of doubt, the Parties acknowledge and agree that the Non-Party Affiliates referred to herein are intended third party beneficiaries of this Section 11.18.
Section 11.19 Limitation of Liability of the Trustee. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by The Bank of New York Mellon Trust Company, N.A. on behalf of Trust, not individually or personally but solely as Trustee of Trust in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Trust is made and intended not as personal representations, undertakings and agreements by The Bank of New York Mellon Trust Company, N.A. but is made and intended for the purpose of binding only Trust, (c) nothing herein contained will be construed as creating any liability on The Bank of New York Mellon Trust Company, N.A. acting on behalf of Trust, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto,
Section 11.20 Purchaser Information; Experience; Independent Inquiry; No Investment Advice.
into this Agreement, including the waivers contained herein, as an inducement to Purchaser to consummate the transactions contemplated hereby.
| (f) | (f) Seller acknowledges and agrees that this Agreement was negotiated at |
arm’s length.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.
SPACE EXPLORATION TECHNOLOGIES CORP.
By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
ECHOSTAR CORPORATION
By: Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO
SPECTRUM BUSINESS TRUST 2025-1
By: The Bank of New York Mellon Trust Company, N.A., not in its individual capacity, but solely as trustee of the Trust
By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Agent
Name: Title:
Exhibit A
Seller Licenses
Exhibit B
Spectrum Transfer Assignment and Assumption of License
Exhibit C
Spectrum Acquisition Assignment and Assumption of License
Exhibit D Subscription Agreement
Exhibit E Foreign Assets
Exhibit F ITU Priorities
Exhibit G Payment Instructions
Annex A
Commercial Agreements
Annex B
Maintenance of Seller Licenses and Foreign Assets