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