EXHIBIT 4.1
ECHOSTAR DBS CORPORATION
$375,000,000
9 1/4% SENIOR NOTES DUE 2006
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INDENTURE
Dated as of January 25, 1999
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U.S. Bank Trust National Association
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Trustee
INDENTURE dated as of January 25, 1999 among EchoStar DBS Corporation
(the "Company"), a Colorado corporation, the Guarantors (as defined herein) and
U.S. Bank Trust National Association, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Company's 9 1/4% Senior Notes due 2006.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Company's 9 1/4% Senior Notes due
2006.
EchoStar (as defined herein) owns beneficially and of record 100% of the
Capital Stock of the Company; the Company and/or EchoStar, directly or
indirectly, owns beneficially and of record 100% of the Capital Stock or other
ownership interests, as the case may be, of each Guarantor; EchoStar, the
Company and the Guarantors are members of the same consolidated group of
companies and are engaged in related businesses and the Guarantors will derive
direct and indirect economic benefit from the issuance of the Notes.
Accordingly, each of the Guarantors has duly authorized the execution and
delivery of this Indenture to provide for its Guarantees with respect to the
Notes as set forth in this Indenture.
All things necessary (i) to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, (ii) to make the Guarantees of each of the
Guarantors, when executed by the respective Guarantors and endorsed on the Notes
executed, authenticated and delivered hereunder, the valid obligations of the
respective Guarantors, and (iii) to make this Indenture a valid agreement of the
Company and of each of the Guarantors, all in accordance with their respective
terms, have been done.
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed as follows for the equal and
ratable benefit of the Holders of the Notes.
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1. DEFINITIONS.
"144A GLOBAL NOTE" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"ACCOUNTS RECEIVABLE SUBSIDIARY" means one Unrestricted Subsidiary of
the Company specifically designated as an Accounts Receivable Subsidiary for the
purpose of financing the accounts receivable of the Company, and provided that
any such designation shall not be deemed to prohibit the Company from financing
accounts receivable through any other entity, including, without
limitation, any other Unrestricted Subsidiary.
"ACCOUNTS RECEIVABLE SUBSIDIARY NOTES" means the notes to be issued by
the Accounts Receivable Subsidiary for the purchase of accounts receivable.
"ACQUIRED DEBT" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person merges
with or into or becomes a Subsidiary of such specified Person, or Indebtedness
incurred by such Person in connection with the acquisition of assets, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person or
the acquisition of such assets, as the case may be.
"ACQUIRED SUBSCRIBER" means a subscriber to a pay television service
provided by a pay television provider that is not an Affiliate of the Company at
the time the Company or one of its Restricted Subsidiaries purchases the right
to provide pay television service to such subscriber from such pay television
provider, whether directly or through the acquisition of the entity providing
pay television service to such subscriber.
"ACQUIRED SUBSCRIBER DEBT" means (i) Indebtedness the proceeds of which
are used to pay the purchase price for Acquired Subscribers or to acquire the
entity which has the right to provide pay television service to such Acquired
Subscribers or to acquire from such entity or an Affiliate of such entity assets
used or to be used in connection with such pay television business; PROVIDED
that such Indebtedness is incurred within three years after the date of the
acquisition of such Acquired Subscriber and (ii) Acquired Debt of any such
entity being acquired; PROVIDED that in no event shall the amount of such
Indebtedness and Acquired Debt for any Acquired Subscriber exceed the sum of the
actual purchase price (inclusive of such Acquired Debt) for such Acquired
Subscriber, such entity and such assets plus the cost of converting such
Acquired Subscriber to usage of a delivery format for pay television service
made available by the Company or any of its Restricted Subsidiaries.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED, HOWEVER,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control; PROVIDED FURTHER that no individual, other than a
director of EchoStar or the Company or an officer of EchoStar or the Company
with a policy making function, shall be deemed an Affiliate of the Company or
any of its Subsidiaries solely by reason of such individual's employment,
position or responsibilities by or with respect to EchoStar, the Company or any
of their
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respective Subsidiaries.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Cedel that apply to such transfer or exchange.
"BANKRUPTCY LAW" means title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BROKER-DEALER" has the meaning set forth in the Registration Rights
Agreement.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at the time any determination thereof is to be
made shall be the amount of the liability in respect of a capital lease that
would at such time be so required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock or
partnership or membership interests, whether common or preferred.
"CASH EQUIVALENTS" means: (a) United States dollars; (b) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition; (c) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any domestic commercial bank
having capital and surplus in excess of $500 million; (d) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clauses (b) and (c) entered into with any financial institution
meeting the qualifications specified in clause (c) above; (e) commercial paper
rated P-1, A-1 or the equivalent thereof by ▇▇▇▇▇'▇ or S&P, respectively, and in
each case maturing within six months after the date of acquisition; and
(f) money market funds offered by any domestic commercial or investment bank
having capital and surplus in excess of $500 million at least 95% of the assets
of which constitute Cash Equivalents of the kinds described in clauses
(a) through (e) of this definition.
"CEDEL" means Cedel Bank, SA.
"CHANGE OF CONTROL" means: (a) any transaction or series of transactions
(including, without limitation, a tender offer, merger or consolidation) the
result of
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which is that the Principal and his Related Parties or an entity controlled by
the Principal and his Related Parties (and not controlled by any Person other
than the Principal or his Related Parties) (i) sell, transfer or otherwise
dispose of more than 50% of the total Equity Interests in EchoStar beneficially
owned (as defined in Rule 13(d)(3) under the Exchange Act but without including
any Equity Interests which may be deemed to be owned solely by reason of the
existence of any voting arrangements), by such persons on the date of this
Indenture (as adjusted for stock splits and dividends and other distributions
payable in Equity Interests), after giving effect to the repurchase of the
Series A Cumulative Preferred Stock on or about the date of this Indenture, or
(ii) do not have the voting power to elect at least a majority of the Board of
Directors of EchoStar; (b) the first day on which a majority of the members of
the Board of Directors of EchoStar are not Continuing Directors; or (c) any time
that EchoStar shall cease to beneficially own 100% of the Equity Interests of
the Company.
"COMMON STOCK" of any Person means Capital Stock of such Person that
does not rank prior as to the payment of dividends or as of the distribution of
assets upon any voluntary liquidation, dissolution or winding up of such Person,
to shares of Capital Stock or any other class of such Person.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as amended.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period, plus, to the
extent deducted in computing Consolidated Net Income: (a) provision for taxes
based on income or profits; (b) Consolidated Interest Expense; (c) depreciation
and amortization (including amortization of goodwill and other intangibles) of
such Person for such period; and (d) any extraordinary loss and any net loss
realized in connection with any Asset Sale, in each case, on a consolidated
basis determined in accordance with GAAP, PROVIDED that Consolidated Cash Flow
shall not include interest income derived from the net proceeds of the Offering.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, consolidated interest expense of such Person for such period,
whether paid or accrued (including amortization of original issue discount and
deferred financing costs, non-cash interest payments and the interest component
of Capital Lease Obligations), on a consolidated basis determined in accordance
with GAAP; PROVIDED, HOWEVER that with respect to the calculation of the
consolidated interest expense of the Company, the interest expense of
Unrestricted Subsidiaries shall be excluded.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
PROVIDED, HOWEVER, that: (a) the Net Income of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall be
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included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person, in the case of a gain, or to the extent of any
contributions or other payments by the referent Person, in the case of a loss;
(b) the Net Income of any Person that is a Subsidiary that is not a Wholly Owned
Subsidiary (or, with respect to the calculation of the Consolidated Net Income
of the Company, a Wholly Owned Restricted Subsidiary) shall be included only to
the extent of the amount of dividends or distributions paid in cash to the
referent Person; (c) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded; (d) the Net Income of any Subsidiary of such Person shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions is not at the time permitted by operation of the terms of its
charter or bylaws or any other agreement, instrument, judgment, decree, order,
statute, rule or government regulation to which it is subject; and (e) the
cumulative effect of a change in accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person, the sum of:
(a) the stockholders' equity of such Person; plus (b) the amount reported on
such Person's most recent balance sheet with respect to any series of preferred
stock (other than Disqualified Stock) that by its terms is not entitled to the
payment of dividends unless such dividends may be declared and paid only out of
net earnings in respect of the year of such declaration and payment, but only to
the extent of any cash received by such Person upon issuance of such preferred
stock, less: (i) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the date of this Indenture in the book value of any asset owned by
such Person or a consolidated Subsidiary of such Person; and (ii) all
unamortized debt discount and expense and unamortized deferred charges, all of
the foregoing determined in accordance with GAAP.
"CONTINUING DIRECTOR" means, as of any date of determination, any member
of the Board of Directors of EchoStar who: (a) was a member of such Board of
Directors on the date of this Indenture; or (b) was nominated for election or
elected to such Board of Directors with the affirmative vote of a majority of
the Continuing Directors who were members of such Board at the time of such
nomination or election or was nominated for election or elected by the Principal
and his Related Parties.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.02 or such other address as to which the Trustee
may give notice to the Company.
"CREDIT AGREEMENT" means any one or more credit agreements (which may
include or consist of revolving credits) between the Company and one or more
banks or other financial institutions providing financing for the business of
the Company and the Company's Restricted Subsidiaries, PROVIDED that the lenders
party to the Credit Agreement may not be Affiliates of EchoStar, the Company or
their respective Subsidiaries and PROVIDED FURTHER that the Guarantors may be
guarantors under such agreements.
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"DBS" means direct broadcast satellite.
"DBSC" means Direct Broadcasting Satellite Corporation, a Colorado
corporation.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEFERRED PAYMENTS" means Indebtedness to satellite construction or
launch contractors incurred after the date of this Indenture in connection with
the construction or launch of one or more satellites of the Company or its
Restricted Subsidiaries used by it in the businesses described in Section 4.17
in an amount not to exceed at any one time outstanding in the aggregate
$135 million.
"DEFINITIVE NOTE" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 of this Indenture,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DEPOSITARY" means the Depository Trust Company and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to an applicable provision of this Indenture.
"DISQUALIFIED STOCK" means any Capital Stock which, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
on which the Notes mature; PROVIDED, HOWEVER, that any such Capital Stock may
require the issuer of such Capital Stock to make an offer to purchase such
Capital Stock upon the occurrence of certain events if the terms of such Capital
Stock provide that such an offer may not be satisfied and the purchase of such
Capital Stock may not be consummated until the 91st day after the Notes have
been paid in full.
"DNCC" means Dish Network Credit Corporation, a Colorado corporation.
"ECHOSTAR" means EchoStar Communications Corporation, a Nevada
corporation, together with each Wholly Owned Subsidiary of EchoStar that
beneficially owns 100% of the Equity Interests of the Company, but only so long
as EchoStar beneficially owns 100% of the Equity Interests of such Subsidiary.
"ECHOSTAR DISH NETWORK-SM-" means the DBS service of the Company and
its Subsidiaries.
"ECHOSTAR I" means the Company's high-powered direct broadcast satellite
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designated as EchoStar I in the Offering Memorandum.
"ECHOSTAR II" means the Company's high-powered direct broadcast
satellite designated as EchoStar II in the Offering Memorandum.
"ECHOSTAR III" means the high-powered direct broadcast satellite
designated as EchoStar III in the Offering Memorandum.
"ECHOSTAR IV" means the high-powered direct broadcast satellite
designated as EchoStar IV in the Offering Memorandum.
"ELIGIBLE INSTITUTION" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated Investment Grade at the time as of which
any investment or rollover therein is made.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ESBC" means EchoStar Satellite Broadcasting Corporation, a Colorado
corporation.
"ESC" means EchoStar Satellite Corporation, a Colorado corporation.
"ETC" means EchoStar Technologies Corporation, a Texas corporation.
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer pursuant
to Section 2.06(f).
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in the
Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means the Notes and any other Indebtedness of
the Company and its Subsidiaries in existence on the date of this Indenture
until such amounts are repaid.
"FCC" means Federal Communications Commission.
"FULL-CONUS ORBITAL SLOT" means an orbital slot that is capable of
providing
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DBS service to the entire continental United States.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the U.S., which are applicable as of the date of
determination; PROVIDED that, except as otherwise specifically provided, all
calculations made for purposes of determining compliance with the terms of the
provisions of this Indenture shall utilize GAAP as in effect on the date of this
Indenture.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.01, which
is required to be placed on all Global Notes issued under this Indenture.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A hereto issued in accordance with Section 2.01 or 2.06 of this
Indenture.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"GUARANTEE" means a guarantee of the Notes on the terms set forth in
this Indenture.
"GUARANTOR" means any entity that executes a Guarantee of the
obligations of the Company under the Notes, and their respective successors and
assigns.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations
of such Person pursuant to any arrangement with any other Person, whereby,
directly or indirectly, such Person is entitled to receive from time to time
periodic payments calculated by applying either floating or a fixed rate of
interest on a stated notional amount in exchange for periodic payments made by
such other Person calculated by applying a fixed or a floating rate of interest
on the same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements designed to protect such
Person against fluctuations in interest rates.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds,
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notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing the balance deferred and unpaid
of the purchase price of any property (including pursuant to capital leases) or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
(other than Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, and also includes, to the
extent not otherwise included, the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, the liquidation
preference with respect to, any Preferred Equity Interests (but excluding, in
each case, any accrued dividends) as well as the guarantee of items that would
be included within this definition.
"INDEBTEDNESS TO CASH FLOW RATIO" means, with respect to any Person, the
ratio of: (a) the Indebtedness of such Person and its Subsidiaries (or, if such
Person is the Company, of the Company and its Restricted Subsidiaries) as of the
end of the most recently ended fiscal quarter, plus the amount of any
Indebtedness incurred subsequent to the end of such fiscal quarter; to (b) such
Person's Consolidated Cash Flow for the most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such event for which such calculation is being made
shall occur (the "Measurement Period"), PROVIDED, HOWEVER; that: (i) in making
such computation, Indebtedness shall include the total amount of funds
outstanding and available under any revolving credit facilities; and (ii) in the
event that such Person or any of its Subsidiaries (or, if such Person is the
Company, any of its Restricted Subsidiaries) consummates a material acquisition
or an Asset Sale or other disposition of assets subsequent to the commencement
of the Measurement Period but prior to the event for which the calculation of
the Indebtedness to Cash Flow Ratio is made, then the Indebtedness to Cash Flow
Ratio shall be calculated giving pro forma effect to such material acquisition
or Asset Sale or other disposition of assets, as if the same had occurred at the
beginning of the applicable period.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in
a Global Note through a Participant.
"INITIAL PURCHASERS" means, with respect to the Notes, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ Securities Corporation, Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇ Brothers
Inc., NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and ING
Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC.
"INVESTMENT GRADE" means with respect to a security, that such security
is rated, by at least two nationally recognized statistical rating
organizations, in one of each such organization's four highest generic rating
categories.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
guarantees), advances or capital contributions (excluding commission, travel and
similar advances to
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officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities and all other items that are or would be classified as investments on
a balance sheet prepared in accordance with GAAP.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent status) of any jurisdiction).
"MARKETABLE SECURITIES" means: (a) Government Securities; (b) any
certificate of deposit maturing not more than 365 days after the date of
acquisition issued by, or time deposit of, an Eligible Institution;
(c) commercial paper maturing not more than 365 days after the date of
acquisition issued by a corporation (other than an Affiliate of the Company)
with an Investment Grade rating, at the time as of which any investment therein
is made, issued or offered by an Eligible Institution; (d) any bankers
acceptances or money market deposit accounts issued or offered by an Eligible
Institution; and (e) any fund investing exclusively in investments of the types
described in clauses (a) through (d) above.
"MAXIMUM SECURED AMOUNT" means at any time (i) in the event the Company
at such time has a rating or has received in writing an indicative rating on all
outstanding Notes of both "Ba3" from Moody's and "BB-" from S&P, an amount equal
to the greater of (x) the product of 1.25 times the Trailing Cash Flow Amount
and (y) $500 million and (ii) in the event the Company does not have both of
such ratings or indicative ratings at such time, $500 million.
"MEDIA 4" means Media4, Inc., a Georgia corporation.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NAGRASTAR" means NagraStar LLC, a Colorado limited liability
corporation.
"NET INCOME" means, with respect to any Person, the net income (loss) of
such
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Person, determined in accordance with GAAP, excluding, however, any gain (but
not loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions), and
excluding any extraordinary gain (but not loss), together with any related
provision for taxes on such extraordinary gain (but not loss) and excluding any
unusual gain (but not loss) relating to recovery of insurance proceeds on
satellites, together with any related provision for taxes on such extraordinary
gain (but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the Company
or any of its Restricted Subsidiaries, as the case may be, in respect of any
Asset Sale, net of the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof, taxes
paid or payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements), amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that are the subject of such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets. Net Proceeds shall exclude
any non-cash proceeds received from any Asset Sale, but shall include such
proceeds when and as converted by the Company or any Restricted Subsidiary to
cash.
"NON-CORE ASSETS" means: (1) all intangible authorizations, rights,
interests and other intangible assets related to all "western" DBS orbital
locations other than 148 DEG. WL (as the term "western" is used by the
FCC) held by the Company and/or any of its Subsidiaries at any time,
including without limitation the authorizations for 22 DBS frequencies at 175
DEG. WL and ESC's permit for 11 unspecified western assignments; (2) all
intangible authorizations, rights, interests and other intangible assets
related to the Fixed Satellite Service in the Ku-band, Ka-band and C-band
held by the Company and/or any of its Subsidiaries at any time, including
without limitation the license of ESC for a two satellite Ku-band system at
83 DEG. and 121 DEG. WL, the license of ESC for a two satellite Ka-band
system at 83 DEG. WL and 121 DEG. WL, and the application of ESC to add
C-band capabilities to a Ku-band satellite authorized at 83 DEG. WL; (3)
all intangible authorizations, rights, interests and other intangible assets
related to the Mobile-Satellite Service ("MSS") held by the Company and/or
any of its Subsidiaries at any time, including without limitation the license
of E-SAT, Inc. for a low-earth orbit MSS system, (4) all intangible
authorizations, rights, interests and other intangible assets related to
local multi-point distribution service and (5) any Subsidiary of the Company
the assets of which consist solely of (i) any combination of the foregoing
and (ii) other assets to the extent permitted under the provision described
under the second paragraph of Section 4.21.
"NON-RECOURSE INDEBTEDNESS" of any Person means Indebtedness of such
Person that: (i) is not guaranteed by any other Person (except a Wholly Owned
Subsidiary of the referent Person); (ii) is not recourse to and does not
obligate any other Person (except a Wholly Owned Subsidiary of the referent
Person) in any way; (iii) does not subject any property or assets of any other
Person (except a Wholly Owned Subsidiary of the referent Person), directly or
indirectly, contingently or otherwise, to the satisfaction thereof, and (iv) is
not required by GAAP to be reflected on the financial statements of any other
12
Person (other than a Subsidiary of the referent Person) prepared in accordance
with GAAP.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" means the 9 1/4% Senior Notes due 2006 issued under this
Indenture on the date of this Indenture. For purpose of this Indenture, the
term "Notes" shall include any Exchange Notes and all Notes and Exchange Notes
shall vote together as a single class.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING" means the offering of the Notes and of the Company's 9 3/8%
Senior Notes due 2009 pursuant to the Offering Memorandum.
"OFFERING MEMORANDUM" means the Offering Memorandum dated January 15,
1999 relating to and used in connection with the initial offering of the Notes
and of the Company's 9 3/8% Senior Notes due 2009 by the Initial Purchasers.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, Controller,
Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, principal financial officer, treasurer or principal
accounting officer of the Company.
"110 ACQUISITION" means the purchase of MCI WorldCom, Inc.'s
authorization for 28 additional DBS frequencies at the 110 DEG. WL
Full-CONUS Orbital Slot, together with two satellites that are to be
delivered in-orbit and other related assets and rights, all as described in
the Offering Memorandum.
"OPINION OF COUNSEL" means an opinion from legal counsel, who may be an
employee of or counsel to the Company (or any Guarantor, if applicable), any
Subsidiary of the Company (or any Guarantor, if applicable) or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or Cedel,
a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to DTC, shall include Euroclear and Cedel).
"PERMITTED INVESTMENTS" means: (a) Investments in the Company or in a
Wholly Owned Restricted Subsidiary of the Company that is a Guarantor,
(b) Investments in Cash Equivalents and Marketable Securities; and
(c) Investments by the Company or any Subsidiary of the Company in a Person if,
as a result of such Investment: (i) such Person becomes a Wholly Owned
Restricted Subsidiary of the Company and becomes a
13
Guarantor, or (ii) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Restricted Subsidiary of the
Company that is a Guarantor; PROVIDED that if at any time a Restricted
Subsidiary of the Company shall cease to be a Subsidiary of the Company, the
Company shall be deemed to have made a Restricted Investment in the amount of
its remaining investment, if any, in such former Subsidiary.
"PERMITTED LIENS" means: (a) Liens securing the Notes and Liens securing
any Guarantee; (b) Liens securing the Deferred Payments; (c) Liens securing any
Indebtedness permitted under Section 4.09 of this Indenture; PROVIDED that such
Liens under this clause (c) shall not secure Indebtedness in an amount exceeding
the Maximum Secured Amount at the time that such Lien is incurred; (d) Liens
securing Purchase Money Indebtedness, PROVIDED that such Indebtedness was
permitted to be incurred by the terms of this Indenture and such Liens do not
extend to any assets of the Company or its Restricted Subsidiaries other than
the assets so acquired; (e) Liens securing Indebtedness the proceeds of which
are used to develop, construct, launch or insure any satellites other than
EchoStar I, EchoStar II, EchoStar III, EchoStar IV or any permitted replacements
of any such satellites, PROVIDED that such Indebtedness was permitted to be
incurred by the terms of this Indenture and such Liens do not extend to any
assets of the Company or its Restricted Subsidiaries other than such satellites
being developed, constructed, launched or insured, and to the related licenses,
permits and construction, launch and TT&C contracts; (f) Liens on orbital slots,
licenses and other assets and rights of the Company, PROVIDED that such orbital
slots, licenses and other assets and rights relate solely to the satellites
referred to in clause (e) of this definition; (g) Liens on property of a Person
existing at the time such Person is merged into or consolidated with the Company
or any Restricted Subsidiary of the Company, PROVIDED, that such Liens were not
incurred in connection with, or in contemplation of, such merger or
consolidation, other than in the ordinary course of business; (h) Liens on
property of an Unrestricted Subsidiary at the time that it is designated as a
Restricted Subsidiary pursuant to the definition of "Unrestricted Subsidiary,"
PROVIDED that such Liens were not incurred in connection with, or contemplation
of, such designation; (i) Liens on property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary of the Company; PROVIDED
that such Liens were not incurred in connection with, or in contemplation of,
such acquisition and do not extend to any assets of the Company or any of its
Restricted Subsidiaries other than the property so acquired; (j) Liens to secure
the performance of statutory obligations, surety or appeal bonds or performance
bonds, or landlords', carriers', warehousemen's, mechanics', suppliers',
materialmen's or other like Liens, in any case incurred in the ordinary course
of business and with respect to amounts not yet delinquent or being contested in
good faith by appropriate process of law, if a reserve or other appropriate
provision, if any, as is required by GAAP shall have been made therefor;
(k) Liens existing on the date of this Indenture; (l) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; PROVIDED that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (m) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company (including, without
limitation, Liens securing Purchase Money Indebtedness)
14
with respect to obligations that do not exceed $10 million in principal amount
in the aggregate at any one time outstanding; (n) Liens securing Indebtedness in
an amount not to exceed $10 million incurred pursuant to clause (xi) of the
second paragraph of Section 4.09 of this Indenture; (o) Liens on any asset of
the Company or a Guarantor securing Indebtedness in an amount not to exceed $10
million; (p) Liens securing Indebtedness permitted under clause (xii) of the
second paragraph of the provision described under Section 4.09 of this
Indenture; provided that such Liens shall not extend to assets other than the
assets that secure such Indebtedness being refinanced; (q) any interest or title
of a lessor under any Capital Lease Obligation; PROVIDED that such Capital Lease
Obligation is permitted under the other provisions of this Indenture; (r) Liens
not provided for in clauses (a) through (q) above, securing Indebtedness
incurred in compliance with the terms of this Indenture provided that the Notes
are secured by the assets subject to such Liens on an equal and ratable basis or
on a basis prior to such Liens; PROVIDED that to the extent that such Lien
secured Indebtedness that is subordinated to the Notes, such Lien shall be
subordinated to and be later in priority than the Notes on the same basis and
(s) extensions, renewals or refundings of any Liens referred to in clauses
(a) through (q) above, PROVIDED that (i) any such extension, renewal or
refunding does not extend to any assets or secure any Indebtedness not securing
or secured by the Liens being extended, renewed or refinanced and (ii) any
extension, renewal or refunding of a Lien originally incurred pursuant to clause
(c) above shall not secure Indebtedness in an amount greater than the Maximum
Secured Amount at the time of such extension, renewal or refunding.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust or
unincorporated organization (including any subdivision or ongoing business of
any such entity or substantially all of the assets of any such entity,
subdivision or business).
"PREFERRED EQUITY INTEREST", in any Person, means an Equity Interest of
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over Equity
Interests of any other class in such Person.
"PREFERRED STOCK", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"PRINCIPAL" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section 2.01 to
be placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.
"PURCHASE MONEY INDEBTEDNESS" means (i) indebtedness of the Company or
any
15
Guarantor (including indebtedness that otherwise satisfies this clause (i) which
was incurred prior to the date the obligor thereunder became a Guarantor)
incurred (within 365 days of such purchase) to finance the purchase of any
assets (including the purchase of Equity Interests of Persons that are not
Affiliates of the Company) of the Company or any Guarantor: (a) to the extent
the amount of Indebtedness thereunder does not exceed 100% of the purchase cost
of such assets; and (b) to the extent that no more than $20 million of such
Indebtedness at any one time outstanding is recourse to the Company or any of
its Restricted Subsidiaries or any of their respective assets, other than the
assets so purchased; or (ii) indebtedness of the Company or any Guarantor which
refinances indebtedness referred to in clause (i) of this definition, PROVIDED
that such refinancing satisfies subclauses (a) and (b) of such clause (i).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"RECEIVABLES TRUST" means a trust organized solely for the purpose of
securitizing the accounts receivable held by the Accounts Receivable Subsidiary
that (a) shall not engage in any business other than (i) the purchase of
accounts receivable or participation interests therein from the Accounts
Receivable Subsidiary and the servicing thereof, (ii) the issuance of and
distribution of payments with respect to the securities permitted to be issued
under clause (b) below and (iii) other activities incidental to the foregoing,
(b) shall not at any time incur Indebtedness or issue any securities, except
(i) certificates representing undivided interests in the trust issued to the
Accounts Receivable Subsidiary and (ii) debt securities issued in an arm's
length transaction for consideration solely in the form of cash and Cash
Equivalents, all of which (net of any issuance fees and expenses) shall promptly
be paid to the Accounts Receivable Subsidiary, and (c) shall distribute to the
Accounts Receivable Subsidiary as a distribution on the Accounts Receivable
Subsidiary's beneficial interest in the trust no less frequently than once every
six months all available cash and Cash Equivalents held by it, to the extent not
required for reasonable operating expenses or reserves therefor or to service
any securities issued pursuant to clause (b) above that are not held by the
Accounts Receivable Subsidiary.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
for the Notes, dated as of January 25, 1999, by and among the Company and the
other parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means a global Note bearing the Private
Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S.
"RELATED PARTY" means, with respect to the Principal, (a) the spouse and
each immediate family member of the Principal and (b) each trust, corporation,
partnership or other entity of which the Principal beneficially holds an 80% or
more controlling interest.
16
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the Private
Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED INVESTMENT" means an Investment other than Permitted
Investments.
"RESTRICTED PERIOD" means the 40-day restricted period as defined in
Regulation S.
"RESTRICTED SUBSIDIARY" means any corporation, association or other
business entity of which more than 50% of the total voting power of shares of
Capital 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 the Company or one or more
Subsidiaries of the Company or a combination thereof, other than Unrestricted
Subsidiaries. Notwithstanding the foregoing, for purposes of this Indenture,
until the consummation of the reorganization of EchoStar and its subsidiaries
described in the Offering Memorandum, DBSC shall be deemed to be a Subsidiary of
the Company.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Rating Services.
"SATELLITE INSURANCE" means insurance providing coverage for a satellite
in an amount which is, together with cash, Cash Equivalents and Marketable
Securities segregated and reserved on the balance sheet of the Company, for the
duration of the insured period or until applied in accordance with Section 4.16
of this Indenture. For purposes of this Indenture, the proceeds of any
Satellite Insurance shall be deemed to include the amount of cash, Cash
Equivalents and Marketable Securities segregated and reserved by the Company for
purposes of the preceding sentence.
"SERIES A CUMULATIVE PREFERRED STOCK" means the Series A Cumulative
Preferred Stock of EchoStar outstanding on the date of this Indenture.
17
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SATELLITE RECEIVER" means any satellite receiver capable of receiving
programming from the EchoStar Dish Network-SM-.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SKYVISTA" means SkyVista Corporation, a Colorado corporation.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital 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 such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof. Notwithstanding the foregoing, for purposes of this Indenture, until
the consummation of the reorganization of EchoStar and its Subsidiaries
described in the Offering Memorandum, DBSC shall be deemed to be a Subsidiary of
the Company.
"SUPPLEMENTAL INDENTURE" means any supplemental indenture relating to
this Indenture.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture.
"TRAILING CASH FLOW AMOUNT" means the Consolidated Cash Flow of the
Company during the most recent four fiscal quarters of the Company for which
financial statements are available.
"TRUSTEE" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"TT&C" means telemetry, tracking and control.
"U.S. PERSON" means a U.S. Person as defined in Rule 902(k) under the
Securities Act.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
18
"UNRESTRICTED GLOBAL NOTE" means a permanent global Note substantially
in the form of Exhibit A attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend.
"UNRESTRICTED SUBSIDIARY" means; (A) E-Sat, Inc., EchoStar Real Estate
Corporation, EchoStar International (Mauritius) Ltd., EchoStar Manufacturing and
Distribution Pvt. Ltd. and Satrec Mauritius Ltd.; and (B) any Subsidiary of the
Company designated as an Unrestricted Subsidiary in a resolution of the Board of
Directors of the Company (a) no portion of the Indebtedness or any other
obligation (contingent or otherwise) of which, immediately after such
designation: (i) is guaranteed by the Company or any other Subsidiary of the
Company (other than another Unrestricted Subsidiary); (ii) is recourse to or
obligates the Company or any other Subsidiary of the Company (other than another
Unrestricted Subsidiary) in any way; or (iii) subjects any property or asset of
the Company or any other Subsidiary of the Company (other than another
Unrestricted Subsidiary), directly or indirectly, contingently or otherwise, to
satisfaction thereof; (b) with which neither the Company nor any other
Subsidiary of the Company (other than another Unrestricted Subsidiary) has any
contract, agreement, arrangement, understanding or is subject to an obligation
of any kind, written or oral, other than on terms no less favorable to the
Company or such other Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company; and (c) with which neither
the Company nor any other Subsidiary of the Company (other than another
Unrestricted Subsidiary) has any obligation: (i) to subscribe for additional
shares of Capital Stock or other equity interests therein; or (ii) to maintain
or preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results; PROVIDED, HOWEVER, that none of the
Company, ESC and Echosphere Corporation may be designated as Unrestricted
Subsidiaries. At any time after the date of this Indenture that the Company
designates an additional Subsidiary (other than ETC or a Subsidiary that
constitutes a Non-Core Asset) as an Unrestricted Subsidiary, the Company will be
deemed to have made a Restricted Investment in an amount equal to the fair
market value (as determined in good faith by the Board of Directors of the
Company evidenced by a resolution of the Board of Directors of the Company and
set forth in an Officers' Certificate delivered to the Trustee no later than
five business days following January 1 and July 1 of each year and ten days
following a request from the Trustee, which certificate shall cover the six
months preceding such January 1, July 1 or date of request, as the case may be)
of such Subsidiary and to have incurred all Indebtedness of such Unrestricted
Subsidiary. An Unrestricted Subsidiary may be designated as a Restricted
Subsidiary of the Company if, at the time of such designation after giving pro
forma effect thereto, no Default or Event of Default shall have occurred or be
continuing.
"VOTING STOCK" of any Person means Capital Stock of such Person that
ordinarily has voting power for the election of directors (or Persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
19
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding principal amount of such Indebtedness into (b) the total of the
product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means a Wholly Owned Subsidiary of
the Company that is a Restricted Subsidiary.
"WHOLLY OWNED SUBSIDIARY" means, with respect to any Person, any
Subsidiary all of the outstanding voting stock (other than directors' qualifying
shares) of which is owned by such Person, directly or indirectly.
SECTION 1.2. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"Affiliate Transaction" 4.11
"Asset Sale" 4.10
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.01
"ETC Amount Due 4.21
"Event of Default" 6.01
"Excess Proceeds" 4.10; 4.16
"Excess Proceeds Offer" 3.09
"incur" 4.09
"Legal Defeasance" 8.02
"Non-Core Asset Amount Due" 4.21
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Default" 6.01
"Payout" 4.21
"Permitted Refinancing" 4.09
"Private Placement Legend" 2.01
"Purchase Date" 3.09
"Refinancing Indebtedness" 4.09
"Registrar" 2.03
"Restricted Payments" 4.07
20
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes and any Guarantee of the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means each of the Company and any successor
obligor upon the Notes or any Guarantor.
All other terms used in this Indenture that are defined by the TIA,
defined by reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2.
THE NOTES
SECTION 2.1. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of
21
this Indenture. The Guarantees of the Notes by the Guarantors shall be
substantially in the forms set forth in Article 10 and Exhibit B hereto, the
terms of which are incorporated in and made a part of this Indenture. The Notes
and the Guarantees of the Notes by the Guarantors may have notations, legends or
endorsements approved as to form by the Company or the Guarantors, as the case
may be, and required by law, stock exchange rule, agreements to which the
Company or the Guarantors, as the case may be, are subject or usage. Each Note
shall be dated the date of its authentication. The Notes shall be issuable only
in denominations of $1,000 and integral multiples thereof.
The Notes shall initially be issued in the form of Global Notes and the
Depository Trust Company ("DTC"), its nominees, and their respective successors,
shall act as the Depositary with respect thereto. Each Global Note shall (i) be
registered in the name of the Depositary for such Global Note or the nominee of
such Depositary, (ii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iii) shall bear a legend (the
"Global Note Legend") substantially to the following effect:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC") to the Company or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR
A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED
22
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Except as permitted by Section 2.06(g), any Note not registered under
the Securities Act shall bear the following legend (the "Private Placement
Legend") on the face thereof:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS, EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)(A
"QIB") OR THAT IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO
ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE
SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT
AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE,
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM
THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE SECURITIES LAWS
23
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS NOTE OR AN INTEREST THEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES PERSON" HAVE THE
MEANINGS ASCRIBED TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING."
The Trustee must refuse to register any transfer of a Note bearing such legend
that would violate the restrictions described in such legend.
SECTION 2.2. FORM OF EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Notes.
If an Officer whose signature is on a Note no longer holds that office
at the time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature of the Trustee shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company, authenticate Notes for original issue up to an
aggregate principal amount of $375,000,000 of the Notes. The aggregate
principal amount of Notes outstanding at any time shall not exceed the amount
set forth herein except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or any Affiliate of the Company.
SECTION 2.3. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange (including any
co-registrar, the "REGISTRAR") and (ii) an office or agency where Notes may be
presented for payment ("PAYING AGENT"). The Registrar shall keep a register of
the Notes and of their transfer
24
and exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder of a Note. The Company shall
notify the Trustee and the Trustee shall notify the Holders of the Notes of the
name and address of any Agent not a party to this Indenture. The Company or any
Guarantor may act as Paying Agent, Registrar or co-registrar. The Company shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders of the Notes or the Trustee all money held by the Paying Agent for
the payment of principal of, premium, if any, and interest on the Notes, and
shall notify the Trustee of any Default by the Company or any Guarantor in
making any such payment. While any such Default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Guarantor) shall have no further liability for the money delivered
to the Trustee. If the Company or a Guarantor acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders of
the Notes all money held by it as Paying Agent.
SECTION 2.5. LISTS OF HOLDERS OF THE NOTES.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of the Notes and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of Holders
of the Notes, including the aggregate principal amount of the Notes held by each
thereof, and the Company and each Guarantor shall otherwise comply with TIA
Section 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
25
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary and a successor Depositary is not appointed by the Company within 90
days after the date of such notice from the Depositary, (ii) the Depositary has
ceased to be a clearing agency registered under the Exchange Act, (iii) the
Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iv) there shall have occurred and be
continuing a Default or an Event of Default under this Indenture. In any such
case, the Company will notify the Trustee in writing that, upon surrender by the
Direct Participants and Indirect Participants of their interest in such Global
Note, Certificated Notes will be issued to each Person that such Direct
Participants and Indirect Participants and DTC identify as being the beneficial
owner of the related Notes. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 of this Indenture. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note
or any portion thereof, pursuant to this Section 2.06 or Section 2.7 or 2.10 of
this Indenture, shall be authenticated and delivered in the form of, and shall
be, a Global Note. A Global Note may not be exchanged for another Note other
than as provided in this Section 2.06. However, beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.06(b), (c)
or (f) of this Indenture.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth in this Indenture to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE
SAME GLOBAL NOTE. Beneficial interests in any Restricted
Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement
Legend; PROVIDED, HOWEVER, that prior to the expiration
of the Restricted Period, no transfer of beneficial
interests in the Regulation S Global Note may be made to
a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser) unless permitted
by applicable law and made in compliance with
subparagraphs (ii) and (iii) below. Beneficial interests
in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No
written
26
orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section
2.06(b)(i) unless specifically stated above.
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF
BENEFICIAL INTERESTS IN GLOBAL NOTES. In connection with
all transfers and exchanges of beneficial interests that
are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to
the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures
directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in
an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing
information regarding the Participant account to be
credited with such increase or, if Definitive Notes are
at such time permitted to be issued pursuant to this
Indenture, (B) (1) a written order from a Participant or
an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to
in (1) above. Upon consummation of an Exchange Offer by
the Company in accordance with Section 2.06(f), the
requirements of this Section 2.06(b)(ii) shall be deemed
to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in
the Restricted Global Notes. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and
the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h).
(iii) TRANSFER OF BENEFICIAL INTERESTS TO
ANOTHER RESTRICTED GLOBAL NOTE. A beneficial interest in
any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial
interest in another Restricted Global Note if the
transfer complies with the requirements of Section
2.06(b)(ii) above and the Registrar receives the
following:
(A) if the transferee will take delivery
in the form of
27
a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of
Exhibit C hereto, including the certifications in item
(1) thereof; and
(B) if the transferee will take delivery
in the form of a beneficial interest in the
Regulation S Global Note, then the transferor
must deliver a certificate in the form of Exhibit
C hereto, including the certifications in item
(2) thereof.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. A beneficial
interest in any Restricted Global Note may be exchanged
by any Holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who
takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange
or transfer complies with the requirements of Section
2.06(b)(ii) above and:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement
and the Holder of the beneficial interest to be
transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it
is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange
Notes or (3) a Person who is an "affiliate" (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant
to a Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of
such beneficial interest in a Restricted
Global Note proposes to exchange such
beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such Holder in the form
of Exhibit D hereto, including the
certifications in item (1)(a) thereof, or
28
(2) if the Holder of
such beneficial interest in a Restricted
Global Note proposes to transfer such
beneficial interest to a Person who shall
take delivery thereof in the form of a
beneficial interest in an Unrestricted
Global Note, a certificate from such
Holder in the form of Exhibit C hereto,
including the certifications in item (4)
thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange
or transfer is in compliance with the Securities
Act and that the restrictions on transfer
contained in this Indenture and in the Private
Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE
NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
NOTES TO RESTRICTED DEFINITIVE NOTES. If any Holder of a
beneficial interest in a Restricted Global Note proposes
to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a
Restricted Definitive Note, a certificate from
such Holder in the form of Exhibit D hereto,
including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A
under the Securities
29
Act, a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule
904 under the Securities Act, a certificate to
the effect set forth in Exhibit C hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the
registration requirements of the Securities Act
in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in
item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to the Company or any of its
Subsidiaries, a certificate to the effect set
forth in Exhibit C hereto, including the
certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being
transferred pursuant to an effective registration
statement under the Securities Act, a certificate
to the effect set forth in Exhibit C hereto,
including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of
the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h), and the Company shall
execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Restricted
Definitive Note in the appropriate principal amount. Any
Restricted Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c) shall be registered in such name
or names and in such authorized denomination or
denominations as the Holder of such beneficial interest
shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Restricted
Definitive Notes to the Persons in whose names such Notes
are so registered. Any Restricted Definitive Note issued
in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(i) shall
bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
NOTES TO
30
UNRESTRICTED DEFINITIVE NOTES. A Holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial interest
for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is
effected pursuant to an Exchange Offer in
accordance with the Registration Rights Agreement
and the Holder of such beneficial interest, in
the case of an exchange, or the transferee, in
the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3)
a Person who is an "affiliate" (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant
to a Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of such
beneficial interest in a Restricted Global
Note proposes to exchange such beneficial
interest for a Definitive Note that does
not bear the Private Placement Legend, a
certificate from such Holder in the form
of Exhibit D hereto, including the
certifications in item (1)(b) thereof; or
(2) if the Holder of such
beneficial interest in a Restricted Global
Note proposes to transfer such beneficial
interest to a Person who shall take
delivery thereof in the form of a
Definitive Note that does not bear the
Private Placement Legend, a certificate
from such Holder in the form of Exhibit C
hereto, including the certifications in
item (4) thereof,
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained in this Indenture and in the Private Placement
31
Legend are no longer required in order to maintain compliance
with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(iii) BENEFICIAL INTERESTS IN UNRESTRICTED
GLOBAL NOTES TO UNRESTRICTED DEFINITIVE NOTES. If any
Holder of a beneficial interest in an Unrestricted Global
Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(ii), the Trustee
shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h), and the Company shall execute and the
Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued
in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or
names and in such authorized denomination or
denominations as the Holder of such beneficial interest
shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive
Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii)
shall not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES. If any Holder of a
Restricted Definitive Note proposes to exchange such Note
for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt
by the Registrar of the following documentation:
(A) if the Holder of such Restricted
Definitive Note proposes to exchange such Note
for a beneficial interest in
32
a Restricted Global Note, a certificate from such Holder
in the form of Exhibit D hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note
is being transferred to a QIB in accordance with
Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit C hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note
is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit C
hereto, including the certifications in item (2)
thereof;
(D) if such Restricted Definitive Note
is being transferred pursuant to an exemption
from the registration requirements of the
Securities Act in accordance with Rule 144 under
the Securities Act, a certificate to the effect
set forth in Exhibit C hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note
is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set
forth in Exhibit C hereto, including the
certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note
is being transferred pursuant to an effective
registration statement under the Securities Act,
a certificate to the effect set forth in Exhibit
C hereto, including the certifications in item
(3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, and in the case of
clause (C) above, the Regulation S Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL
INTERESTS IN UNRESTRICTED GLOBAL NOTES. A Holder of a
Restricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:
33
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange
Notes or (3) a Person who is an "affiliate" (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant
to a Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of such
Definitive Notes proposes to exchange such
Notes for a beneficial interest in the
Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit D
hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such
Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery
thereof in the form of a beneficial
interest in the Unrestricted Global Note,
a certificate from such Holder in the form
of Exhibit C hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained in this Indenture and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee
shall cancel the Definitive Notes and increase or cause
to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO
BENEFICIAL INTERESTS
34
IN UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest
in an Unrestricted Global Note or transfer such Unrestricted
Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at
any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from an Unrestricted Definitive Note or
a Restricted Definitive Note, as the case may be, to a beneficial interest is
effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time
when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 of this Indenture, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
Unrestricted Definitive Notes or Restricted Definitive Notes, as the case may
be, so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED
DEFINITIVE NOTES. Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made
pursuant to Rule 144A under the Securities Act,
then the transferor must deliver a certificate in
the form of Exhibit C hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made
pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form
of Exhibit C hereto, including the certifications
in item (2) thereof; and
(C) if the transfer will be made
pursuant to any
35
other exemption from the registration requirements of
the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit C hereto, including
the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO
UNRESTRICTED DEFINITIVE NOTES. Any Restricted Definitive
Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is
effected pursuant to an Exchange Offer in
accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange
Notes or (3) a Person who is an "affiliate" (as
defined in Rule 144) of the Company;
(B) any such transfer is effected
pursuant to a Shelf Registration Statement in
accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of such
Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted
Definitive Note, a certificate from such
Holder in the form of Exhibit D hereto,
including the certifications in item
(1)(d) thereof; or
(2) if the Holder of such
Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall
take delivery thereof in the form of an
Unrestricted Definitive Note, a
certificate from such Holder in the form
of Exhibit C hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar so
requests, an Opinion of
36
Counsel in form reasonably acceptable to the
Company to the effect that such exchange or
transfer is in compliance with the Securities Act
and that the restrictions on transfer contained in
this Indenture and in the Private Placement Legend
are no longer required in order to maintain
compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A Holder of Unrestricted
Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(F) EXCHANGE OFFER. Upon the occurrence of an Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not "affiliates" (as defined in Rule 144) of the Company,
and accepted for exchange in an Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(G) LEGENDS. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph
(B) below, each Global Note (other than an
Unrestricted Global Note) and each Definitive
Note (and all Notes issued in exchange therefor
or substitution thereof) shall bear the Private
Placement Legend.
(B) Notwithstanding the foregoing, any
Global Note or Definitive Note issued pursuant to
subparagraphs (b)(iv), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to
37
this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note
shall bear the Global Note Legend.
(H) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11. At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(I) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee
shall authenticate Global Notes and Definitive Notes upon
the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a
Holder of a beneficial interest in a Global Note or to a
Holder of a Definitive Note for any registration of
transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith
(other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 3.09 and 9.05).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected
for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes
issued upon any registration of transfer or exchange of
Global Notes or Definitive Notes shall be the valid
obligations of the Company,
38
evidencing the same debt, and entitled to the same benefits of
this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to
issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of
business on a Business Day 15 days before the day of any
selection of Notes for redemption under Section 3.02 of
this Indenture and ending at the close of business on the
day of selection or (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or
in part, except the unredeemed portion of any Note being
redeemed in part.
(vi) Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any
Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other
purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global
Notes and Definitive Notes in accordance with the
provisions of Section 2.02 of this Indenture.
(viii) All certifications, certificates and
Opinions of Counsel required to be submitted to the
Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements for replacements of Notes are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Guarantors, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Note is
replaced. Each of the Company and the Trustee may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company and
the Guarantors.
39
SECTION 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in this Section as not outstanding.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.09, a Note does not cease to be outstanding because
the Company, a Subsidiary of the Company or an Affiliate of the Company holds
the Note.
SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, any Subsidiary of the Company or any Affiliate of the Company shall be
considered as though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Responsible Officer knows to be so owned shall be
so considered. Notwithstanding the foregoing, Notes that are to be acquired by
the Company, any Subsidiary of the Company or an Affiliate of the Company
pursuant to an exchange offer, tender offer or other agreement shall not be
deemed to be owned by the Company, a Subsidiary of the Company or an Affiliate
of the Company until legal title to such Notes passes to the Company, such
Subsidiary or such Affiliate, as the case may be.
SECTION 2.10.TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee, upon receipt of
the written order of the Company signed by two Officers of the Company, shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.11. CANCELLATION.
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The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy canceled Notes
(subject to the record retention requirement of the Exchange Act), unless the
Company directs canceled Notes to be returned to it. The Company may not issue
new Notes to replace Notes that it has redeemed or paid or that have been
delivered to the Trustee for cancellation. All canceled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Company, unless by a written order, signed by two Officers of the Company,
the Company shall direct that canceled Notes be returned to it.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders of
the Notes on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five Business Days prior to
the payment date, in each case at the rate provided in the Notes. The Company
shall, with the consent of the Trustee, fix or cause to be fixed each such
special record date and payment date. At least 15 days before the special
record date, the Company (or the Trustee, in the name of and at the expense of
the Company) shall mail to Holders of the Notes a notice that states the special
record date, the related payment date and the amount of such interest to be
paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of
the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.14. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number and, if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company will
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3.
REDEMPTION
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SECTION 3.1. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07, it shall furnish to the Trustee, at least
45 days (unless a shorter period is acceptable to the Trustee) but not more than
60 days before a redemption date, an Officers' Certificate setting forth (i) the
redemption date, (ii) the principal amount of Notes to be redeemed and (iii) the
redemption price.
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, the
selection of Notes for redemption will be made by the Trustee in compliance with
the requirements of the principal national securities exchange, if any, on which
the Notes are listed, or if the Notes are not so listed on a PRO RATA basis, by
lot or in accordance with any other method the Trustee considers fair and
appropriate, PROVIDED that no Notes with a principal amount of $1,000 or less
shall be redeemed in part. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
them selected shall be in amounts of $1,000 or whole multiples of $1,000; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.3. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09, at least 30 days but not more
than 60 days before a redemption date, the Company shall mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part only, the portion of
the principal amount of such Note to be redeemed and that, after the redemption
date
42
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days (unless a shorter
period is acceptable to the Trustee) prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the redemption date at the
redemption price.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to any redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of
and accrued interest on all Notes to be redeemed on that date. The Trustee or
the Paying Agent shall promptly return to the Company any money deposited with
the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Notes to
be redeemed.
On and after the redemption date, interest shall cease to accrue on the
Notes or the portions of Notes called for redemption. If a Note is redeemed on
or after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business on such record date. If
any Note called for redemption shall not be so paid upon surrender for
redemption because
43
of the failure of the Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes.
SECTION 3.6. NOTES REDEEMED IN PART.
Upon surrender and cancellation of a Note that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder of the
Notes at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.7. OPTIONAL REDEMPTION
Except as provided in the next paragraph, the Notes will not be
redeemable at the Company's option prior to February 1, 2003. Thereafter, the
Notes will be subject to redemption at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below, together
with accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the 12-month period beginning on February 1 of the years
indicated below:
YEAR PERCENTAGE
---- ----------
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.625%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.313
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, at any time prior to February 1, 2002,
the Company may redeem up to 35% of the aggregate principal amount of the Notes
outstanding at a redemption price equal to 109.250% of the principal amount
thereof on the repurchase date, together with accrued and unpaid interest to
such repurchase date, with the net cash proceeds of one or more public or
private sales (including sales to EchoStar, regardless of whether EchoStar
obtained such funds from an offering of Equity Interests or Indebtedness of
EchoStar or otherwise) of Equity Interests (other than Disqualified Stock) of
the Company (other than proceeds from a sale to any Subsidiary of the Company or
any employee benefit plan in which the Company or any of its Subsidiaries
participates); PROVIDED that: (a) at least 65% in aggregate principal amount of
the Notes originally issued remain outstanding immediately after the occurrence
of such redemption; (b) such redemption occurs within 120 days of the date of
the closing of any such sale; and (c) the sale of such Equity Interests is made
in compliance with the terms of this Indenture.
SECTION 3.8. MANDATORY REDEMPTION.
44
The Notes will not be subject to any mandatory redemption or sinking
fund provisions.
SECTION 3.9. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
When the cumulative amount of Excess Proceeds that have not been applied
in accordance with Section 4.10 and 4.16 herein or this Section 3.09, exceeds
$17.5 million, the Company shall be obligated to make an offer to all Holders of
the Notes (an "EXCESS PROCEEDS OFFER") to purchase the maximum principal amount
of Notes that may be purchased out of such Excess Proceeds at an offer price in
cash in an amount equal to 101% of the principal amount thereof, together with
accrued and unpaid interest to the date fixed for the closing of such offer in
accordance with the procedures set forth in this Section 3.09. To the extent
the Company or a Restricted Subsidiary is required under the terms of
Indebtedness of the Company or such Restricted Subsidiary which is PARI PASSU
with, or (in the case of any secured Indebtedness) senior with respect to such
collateral to, the Notes with any proceeds which constitute Excess Proceeds
under this Indenture, the Company shall make a pro rata offer to the holders of
all other PARI PASSU Indebtedness (including the Notes) with such proceeds. If
the aggregate principal amount of Notes and other PARI PASSU Indebtedness
surrendered by holders thereof exceeds the amount of such Excess Proceeds, the
Trustee shall select the Notes and other PARI PASSU Indebtedness to be purchased
on a PRO RATA basis.
The Excess Proceeds Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "OFFER PERIOD"). No later than
five Business Days after the termination of the Offer Period (the "PURCHASE
DATE"), the Company shall purchase the maximum principal amount of Notes that
may be purchased with such Excess Proceeds (which maximum principal amount of
Notes shall be the "OFFER AMOUNT") or, if less than the Offer Amount has been
tendered, all Notes tendered in response to the Excess Proceeds Offer.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
record date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Excess Proceeds Offer.
Upon the commencement of any Excess Proceeds Offer, the Company shall
send, by first class mail, a notice to each of the Holders of the Notes, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds
Offer. The notice, which shall govern the terms of the Excess Proceeds Offer,
shall state:
(a) that the Excess Proceeds Offer is being made pursuant to
this Section 3.09 and the length of time the Excess Proceeds Offer shall remain
open;
45
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that any Note accepted for payment pursuant to the
Excess Proceeds Offer shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant
to any Excess Proceeds Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Company, a depositary, if appointed by the Company, or
a Paying Agent at the address specified in the notice at least three business
days before the Purchase Date;
(f) that Holders shall be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a
statement that such ▇▇▇▇▇▇ is withdrawing his election to have the Note
purchased;
(g) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a PRO RATA basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a PRO RATA basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Excess Proceeds
Offer, or if less than the Offer Amount has been tendered, all Notes or portion
thereof tendered, and deliver to the Trustee an Officers' Certificate stating
that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, Depositary or
Paying Agent, as the case may be, shall promptly (but in any case not later than
five days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Note tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new
Note, and the Trustee shall authenticate and mail or deliver such new Note, to
such Holder equal in principal amount to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company
46
to the Holder thereof. The Company shall publicly announce the results of the
Excess Proceeds Offer on the Purchase Date. To the extent that the aggregate
principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less
than the amount of such Excess Proceeds, the Company may use any remaining
Excess Proceeds for general corporate purposes. Upon completion of an Excess
Proceeds Offer, the amount of Excess Proceeds shall be reset at zero.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06.
ARTICLE 4.
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company, holds as of 10:00 a.m.
Eastern Time on the due date money deposited by or on behalf of the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the then applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all
47
such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.3. REPORTS.
(a) Whether or not required by the rules and regulations of
the SEC, so long as any of the Notes remain outstanding, the Company shall
cause copies of all quarterly and annual financial reports and of the
information, documents, and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act (including all information that would be required to be
contained in Forms 10-Q and 10-K and including information that would be
required with respect to the Guarantors) to be filed with the SEC and the
Trustee and mailed to the Holders at their addresses appearing in the
register of Notes maintained by the Registrar, in each case, within 15 days
of filing with the SEC. If the Company is not subject to the requirements of
such Section 13 or 15(d) of the Exchange Act, the Company shall nevertheless
continue to cause the annual and quarterly financial statements, including
any notes thereto (and, with respect to annual reports, an auditors' report
by an accounting firm of established national reputation) and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
comparable to that which would have been required to appear in annual or
quarterly reports filed under Section 13 or 15(d) of the Exchange Act
(including all financial information that would be required to be contained
in Forms 10-Q and 10-K and including all information that would be required
with respect to the Guarantors), to be so filed with the SEC for public
availability (to the extent permitted by the SEC) and the Trustee and mailed
to the Holders within 120 days after the end of the Company's fiscal years
and within 60 days after the end of each of the first three quarters of each
such fiscal year. The Company and the Guarantors shall also comply with the
provisions of TIA Section 314(a).
(b) The Company shall provide the Trustee with a sufficient
number of copies of all reports and other documents and information that the
Trustee may be required to deliver to the Holders of the Notes under this
Section 4.03.
SECTION 4.4. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company, the Guarantors and their respective
Subsidiaries during
48
the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each has kept, observed, performed
and fulfilled its obligations under this Indenture and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge each entity has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
including, without limitation, a default in the performance or breach of Section
4.07, Section 4.09, Section 4.10 or Section 4.15 (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Notes is prohibited or
if such event has occurred, a description of the event and what action each is
taking or proposes to take with respect thereto.
(b) [Intentionally Omitted].
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming
aware of (i) any Default or Event of Default, or (ii) any default under any
Indebtedness referred to in Section 6.01(f) or (g) of this Indenture, an
Officers' Certificate specifying such Default, Event of Default or default
and what action the Company or any of its Affiliates is taking or proposes to
take with respect thereto.
SECTION 4.5. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except as contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material respect to the
Holders of the Notes.
SECTION 4.6. STAY, EXTENSION AND USURY LAWS.
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 4.7. LIMITATION ON RESTRICTED PAYMENTS.
49
Neither the Company nor any of its Restricted Subsidiaries may, directly
or indirectly:
(a) declare or pay any dividend or make any distribution on
account of any Equity Interests of the Company other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of
the Company;
(b) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of EchoStar, the Company or any of their respective
Subsidiaries or Affiliates, other than any such Equity Interests owned by the
Company or any Wholly Owned Restricted Subsidiary;
(c) purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is expressly subordinated in right of payment to
the Notes or the Guarantees, except in accordance with the scheduled
mandatory redemption, sinking fund or repayment provisions set forth in the
original documentation governing such Indebtedness;
(d) declare or pay any dividend or make any distribution on
account of any Equity Interests of any Restricted Subsidiary, other than (x)
to the Company or any Wholly Owned Restricted Subsidiary or (y) to all
holders of any class or series of Equity Interests of such Restricted
Subsidiary on a PRO RATA basis; PROVIDED that in the case of this clause (y),
such dividends or distributions may not be in the form of Indebtedness or
Disqualified Stock; or
(e) make any Restricted Investment (all such prohibited payments
and other actions set forth in clauses (a) through (e) being collectively
referred to as "Restricted Payments"), unless, at the time of such Restricted
Payment:
(i) no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence
thereof;
(ii) after giving effect to such Restricted Payment
and the incurrence of any Indebtedness the net proceeds of which
are used to finance such Restricted Payment, the Indebtedness to
Cash Flow Ratio of the Company would not have exceeded 8.0 to 1;
and
(iii) such Restricted Payment, together with the
aggregate of all other Restricted Payments after the date of
this Indenture, is less than the sum of (A) the difference of
(x) cumulative Consolidated Cash Flow of the Company determined
at the time of such Restricted Payment (or, in case such
Consolidated Cash Flow shall be a deficit, minus 100% of such
deficit) minus (y) 120% of Consolidated Interest Expense of the
Company, each as determined for the period (taken as one
accounting period) from April 1, 1999 to the end of the
Company's most recently ended fiscal
50
quarter for which internal financial statements are available at the
time of such Restricted Payment; plus (B) an amount equal to 100% of the
aggregate net cash proceeds and, in the case of proceeds consisting of
assets used in or constituting a business permitted under Section 4.17
of this Indenture, 100% of the fair market value of the aggregate net
proceeds other than cash received by the Company either from capital
contributions from EchoStar, or from the issue or sale (including an
issue or sale to EchoStar) of Equity Interests (other than Disqualified
Stock) of the Company (other than Equity Interests sold to any
Subsidiary of the Company), since the date of the Indenture, but, in the
case of any net cash proceeds, only to the extent such net cash proceeds
are not used to redeem Notes pursuant to the second paragraph of Section
3.07 of this Indenture; PROVIDED that the proceeds calculated for
purposes of this clause (B) shall exclude cash and non-cash property and
assets received by the Company pursuant to Section 4.18 and Section 4.19
hereof; plus (C) in the event that any Unrestricted Subsidiary is
designated by the Company as a Restricted Subsidiary, an amount equal to
the fair market value of the net Investment of the Company or a
Restricted Subsidiary in such Subsidiary at the time of such
designation; PROVIDED, HOWEVER, that the foregoing sum shall not exceed
the amount of the Investments made by the Company or any Restricted
Subsidiary in any such Unrestricted Subsidiary since the date of the
Indenture, plus (D) 100% of any cash dividends and other cash
distributions received by the Company and its Wholly Owned Restricted
Subsidiaries from an Unrestricted Subsidiary to the extent not included
in Cumulative Consolidated Cash Flow plus (E), to the extent not
included in clauses (A) through (D) above, an amount equal to the net
reduction in Investments of the Company and its Restricted Subsidiaries
since the date of this Indenture resulting from payments in cash of
interest on Indebtedness, dividends, or repayment of loans or advances,
or other transfers of property, in each case, to the Company or to a
Wholly Owned Restricted Subsidiary or from the net cash proceeds from
the sale, conveyance or other disposition of any such Investment;
PROVIDED, HOWEVER, that the foregoing sum shall not exceed, with respect
to any Person in whom such Investment was made, the amount of
Investments previously made by the Company or any Restricted Subsidiary
in such Person which were included in computations made pursuant to this
clause (iii).
The foregoing provisions will not prohibit the following (provided that
with respect to clauses (2), (3), (5), (6), (7), (8), (9), (12), (13) and
(14) below, no Default or Event of Default shall have occurred and be continuing
therein):
(1) the payment of any dividend within 60 days after
the date of declaration thereof, if at such date of declaration
such payment would have complied with the provisions of this
Indenture;
(2) the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Company in exchange
for, or out of the net
51
proceeds of the substantially concurrent capital contribution from
EchoStar or from the substantially concurrent issue or sale (including
to EchoStar) of Equity Interests (other than Disqualified Stock) of the
Company (other than Equity Interests issued or sold to any Subsidiary of
the Company);
(3) Investments in an aggregate amount not to exceed
$75 million plus, to the extent not included in Consolidated
Cash Flow, an amount equal to the net reduction in such
Investments resulting from payments in cash of interest on
Indebtedness, dividends or repayment of loans or advances, or
other transfers of property, in each case, to the Company or to
a Wholly Owned Restricted Subsidiary or from the net cash
proceeds from the sale, conveyance or other disposition of any
such Investment; PROVIDED, HOWEVER, that the foregoing sum shall
not exceed, with respect to any Person in whom such Investment
was made, the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Person pursuant to
this clause (3);
(4) Investments to fund the financing activity of
DNCC in the ordinary course of its business in an amount not to
exceed, as of the date of determination, the sum of
(A) $35 million plus (B) 40% of the aggregate cost to DNCC for
each Satellite Receiver purchased by DNCC and leased by DNCC to
a retail consumer in excess of 100,000 units;
(5) cash dividends or distributions to EchoStar to
the extent required for the purchase of employee stock options
to purchase Capital Stock of EchoStar, or Capital Stock of
EchoStar issued pursuant to the exercise of employee stock
options to purchase Capital Stock of EchoStar, in an aggregate
amount not to exceed $2 million in any calendar year and in an
aggregate amount not to exceed $10 million since the date of the
Indenture;
(6) a Permitted Refinancing (as defined in Section
4.09);
(7) Investments in an amount equal to 100% of the
aggregate net proceeds (whether or not in cash) received by the
Company from capital contributions from EchoStar or from the
issue and sale (including a sale to EchoStar) of Equity
Interests (other than Disqualified Stock) of the Company (other
than Equity Interests issued or sold to a Subsidiary of the
Company), on or after the date of the Indenture; PROVIDED THAT
such proceeds shall include only $300 million in the case of
assets contributed pursuant to Section 4.18 hereof and shall
include all of the cash contributed pursuant to Section 4.19
hereof plus, to the extent not included in Consolidated Cash
Flow, an amount equal to the net reduction in such Investments
resulting from payments in cash of interest on Indebtedness,
dividends, or repayment of loans or advances, or other transfers
of property, in each case, to the Company or to a Wholly Owned
Restricted
52
Subsidiary or from the net cash proceeds from the sale, conveyance, or
other disposition of any such Investment; PROVIDED, HOWEVER, that the
foregoing sum shall not exceed, with respect to any Person in whom such
Investment was made, the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Person pursuant to this
clause (7) in each case, PROVIDED that such Investments are in
businesses of the type described under Section 4.17 of this Indenture;
(8) Investments in any Restricted Subsidiary which is
a Guarantor but which is not a Wholly Owned Restricted
Subsidiary;
(9) Investments in NagraStar in an aggregate amount
not to exceed $25 million and in SkyVista in an aggregate amount
not to exceed $10 million;
(10) cash dividends or other cash distributions to
EchoStar in an amount sufficient to enable EchoStar to
(A) repurchase its 12 1/8% Senior Exchange Notes, (B) pay interest
on any of its 12 1/8% Senior Exchange Notes which remain
outstanding following consummation of the Tender Offers (as
defined in the Offering Memorandum) and (C) either (x) redeem
such 12 1/8% Senior Exchange Notes that remain outstanding at the
prices set forth in the indenture governing such notes; or
(y) repurchase or defease such notes at any time prior to such
redemption; PROVIDED in each case, that EchoStar has irrevocably
agreed, for the benefit of the Holders of the Notes, to apply
such cash pursuant to the clause above under which such dividend
or other distribution was made;
(11) cash dividends or distributions to EchoStar to
the extent required for the purchase of odd-lots of Equity
Interests of EchoStar, in an amount not to exceed $5 million in
the aggregate;
(12) the making of any Restricted Payment (including
the receipt of any Investment) permitted under or resulting from
any transaction permitted under Section 4.21 of this Indenture;
PROVIDED that all conditions to any such Restricted Payment set
forth in such Section 4.21 are satisfied; or
(13) Investments made as a result of the receipt of
non-cash proceeds from Asset Sales made in compliance with
Section 4.10 of this Indenture.
Restricted Payments made pursuant to clauses (1), (2), (4), (7) (but
only to the extent that net proceeds received by the Company as set forth in
such clause (7) were included in the computations made in clause (iii)(B) of the
first paragraph of this Section 4.07), (11) and (13) (but only to the extent
such Investments pursuant to clause (13) (a) were made as a result of the
receipt of
53
non-cash proceeds from Asset Sales as set forth in clause (y) of the last
paragraph of Section 4.10 of this Indenture and (b) are not designated as
Investments made pursuant to an applicable provision of the immediately
preceding paragraph of this Section 4.07 (other than clause (13) thereof)) shall
be included as Restricted Payments in any computation made pursuant to
clause (3) of the first paragraph of this Section 4.07. Restricted Payments made
pursuant to clauses (3), (5), (6), (7) (but only to the extent that net proceeds
received by the Company as set forth in such clause (7) were not included in the
computations made in clause (iii)(B) of the first paragraph of this Section
4.07), (8), (9), (10), (12) and (13) (but only to the extent such Investments
pursuant to clause (13) (a) were not made as a result of the receipt of non-cash
proceeds from Asset Sales as set forth in clause (y) of the last paragraph of
Section 4.10 or (b) if made pursuant to such clause (y), were designated as
Investments made pursuant to an applicable provision of the immediately
preceding paragraph of this Section 4.07 (other than clause (13) thereof)) shall
not be included as Restricted Payments in any computation made pursuant to
clause (iii) of the first paragraph of this Section 4.07.
If the Company or any Restricted Subsidiary makes an Investment which
was included in computations made pursuant to this Section 4.07 and the Person
in which such Investment was made subsequently becomes a Restricted Subsidiary
that is a Guarantor, to the extent such Investment resulted in a reduction in
the amounts calculated under clause (iii) of the first paragraph of or under any
other provision of this Section 4.07, then such amount shall be increased by the
amount of such reduction.
Not later than five business days after January 1 and July 1 of each
year and ten days following a request from the Trustee, the Company shall
deliver to the Trustee an Officers' Certificate stating that each Restricted
Payment made in the six months preceding such January 1, July 1 or date of
request, as the case may be, is permitted and setting forth the basis upon which
the calculations required by this Section 4.07 were computed, which calculations
shall be based upon the Company's latest available financial statements.
SECTION 4.8. LIMITATIONS CONCERNING DISTRIBUTIONS BY SUBSIDIARIES, ETC.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(a) pay dividends or make any other distribution to the Company or
any of its Restricted Subsidiaries on its Capital Stock or with respect to any
other interest or participation in, or measured by, its profits, or pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
54
(c) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries;
except for such encumbrances or restrictions existing under or by reasons of:
(i) Existing Indebtedness and existing agreements as
in effect on the date of the Indenture;
(ii) applicable law or regulation;
(iii) any instrument governing Acquired Debt as in
effect at the time of acquisition (except to the extent such
Indebtedness was incurred in connection with, or in
contemplation of, such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired, provided that the
Consolidated Cash Flow of such Person shall not be taken into
account in determining whether such acquisition was permitted by
the terms of the Indenture; except to the extent that dividends
or other distributions are permitted notwithstanding such
encumbrance or restriction and could have been distributed;
(iv) by reason of customary non-assignment provisions
in leases entered into in the ordinary course of business and
consistent with past practices;
(v) Refinancing Indebtedness (as defined in Section
4.09 of this Indenture), PROVIDED that the restrictions
contained in the agreements governing such Refinancing
Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced;
(vi) the Indenture and the Notes;
(vii) Permitted Liens; or
(viii) any agreement for the sale of any Subsidiary or
its assets that restricts distributions by that Subsidiary
pending its sale; provided that during the entire period in
which such encumbrance or restriction is effective, such sale
(together with any other sales pending) would be permitted under
the terms of this Indenture.
SECTION 4.9. INCURRENCE OF INDEBTEDNESS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to (collectively,
55
"incur") any Indebtedness (including Acquired Debt); PROVIDED, HOWEVER, that,
notwithstanding the foregoing the Company and any Guarantor may incur
Indebtedness (including Acquired Debt), if, after giving effect to the
incurrence of such Indebtedness and the application of the net proceeds thereof
on a pro forma basis, the Indebtedness to Cash Flow Ratio of the Company would
not have exceeded 8.0 to 1.
The foregoing limitation will not apply to any of the following
incurrences of Indebtedness:
(i) Indebtedness represented by the Notes, the
Guarantees and the Indenture;
(ii) the incurrence by the Company or any
Guarantor of Acquired Subscriber Debt not to exceed
$1,250 per Acquired Subscriber;
(iii) the incurrence by the Company or any
Guarantor of Deferred Payments and letters of credit with
respect thereto;
(iv) Indebtedness of the Company or any
Guarantor that ranks PARI PASSU with or is subordinated
to the Notes and the Guarantees in an aggregate principal
amount not to exceed $700 million at any one time
outstanding, which Indebtedness may be secured to the
extent permitted under Section 4.12 of this Indenture;
PROVIDED that up to $75 million at any one time
outstanding of such Indebtedness may be incurred by
Restricted Subsidiaries that are not Guarantors; PROVIDED
further that any Indebtedness incurred pursuant to this
clause (iv) that is incurred pursuant to a Credit
Agreement shall be incurred pursuant to a Credit
Agreement under which the Company is the sole primary
obligor (and under which the Guarantors (and no other
Restricted Subsidiary) may guarantee the primary
obligations of the Company);
(v) Indebtedness between and among the Company
and each of the Guarantors;
(vi) Acquired Debt of a Person incurred prior
to the date upon which such Person was acquired by the
Company or any Guarantor (excluding Indebtedness incurred
by such entity other than in the ordinary course of its
business in connection with, or in contemplation of, such
entity being so acquired) in an amount not to exceed
(A) $30 million in the aggregate for all such Persons
other than those described in the immediately following
clause (B); and (B) $5 million acquired in connection
with the acquisition of Media4;
56
(vii) Existing Indebtedness;
(viii) the incurrence of Purchase Money
Indebtedness by the Company or any Guarantor in an amount
not to exceed the cost of construction, acquisition or
improvement of assets used in any business permitted
under Section 4.17 of this Indenture, being constructed,
acquired or improved as well as any launch costs and
insurance premiums related to such assets;
(ix) Hedging Obligations of the Company or any
of its Restricted Subsidiaries covering Indebtedness of
the Company or such Restricted Subsidiary to the extent
the notional principal amount of such Hedging Obligation
does not exceed the principal amount of the Indebtedness
to which such Hedging Obligation relates; PROVIDED,
HOWEVER, that such Hedging Obligations are entered into
to protect the Company and its Restricted Subsidiaries
from fluctuation in interest rates on Indebtedness
incurred in accordance with this Indenture;
(x) Indebtedness of the Company or any
Restricted Subsidiary in respect of performance bonds or
letters of credit of the Company or any Restricted
Subsidiary or surety bonds provided by the Company or any
Restricted Subsidiary incurred in the ordinary course of
business and on ordinary business terms in connection
with the businesses permitted under Section 4.17 of this
Indenture;
(xi) Indebtedness of the Company or any
Guarantor the proceeds of which are used solely to
finance the construction and development of a call center
owned by the Company or a Guarantor in McKeesport,
Pennsylvania or any refinancing thereof; PROVIDED that
the aggregate of all Indebtedness incurred pursuant to
this clause (xi) shall in no event exceed $10 million at
any one time outstanding;
(xii) the incurrence by the Company or any
Guarantor of Indebtedness issued in exchange for, or the
proceeds of which are used to extend, refinance, renew,
replace, substitute or refund in whole or in part
Indebtedness referred to in the first paragraph of this
Section 4.09 or in clauses (i), (ii), (iii), (vi) or
(vii) above ("Refinancing Indebtedness"); PROVIDED,
HOWEVER, that: (A) the principal amount of such
Refinancing Indebtedness shall not exceed the principal
amount and accrued interest of the Indebtedness so
extended, refinanced, renewed, replaced, substituted or
refunded and any premiums payable and reasonable fees,
expenses, commissions and costs in connection therewith;
(B) the Refinancing Indebtedness shall have a final
maturity later
57
than, and a Weighted Average Life to Maturity equal to or greater
than, the final maturity and Weighted Average Life to Maturity,
respectively, of the Indebtedness being extended, refinanced,
renewed, replaced or refunded; and (C) the Refinancing
Indebtedness shall be subordinated in right of payment to the
Notes and the Guarantees, if at all, on terms at least as
favorable to the holders of Notes as those contained in the
documentation governing the Indebtedness being extended,
refinanced, renewed, replaced or refunded (a "Permitted
Refinancing");
(xiii) the guarantee by the Company or any
Guarantor of Indebtedness of the Company or a Restricted
Subsidiary that was permitted to be incurred by another
provision of this Section 4.09; or
(xiv) Indebtedness under Capital Lease
Obligations of the Company or any Guarantor with respect
to no more than two direct broadcast satellites at any
time.
For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories described in clauses (i) through (xiv) above or is permitted to be
incurred pursuant to the first paragraph of this Section 4.09 and also meets the
criteria of one or more of the categories described in clauses (i) through
(xiv) above, the Company shall, in its sole discretion, classify such item of
Indebtedness in any manner that complies with this Section 4.09 and may from
time to time reclassify such item of Indebtedness in any manner in which such
item could be incurred at the time of such reclassification. Accrual of interest
and the accretion of accreted value will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.09.
SECTION 4.10. ASSET SALES.
If the Company or any Restricted Subsidiary, in a single transaction or
a series of related transactions:
(a) sells, leases (in a manner that has the effect of a disposition),
conveys or otherwise disposes of any of its assets (including by way of a
sale-and-leaseback transaction), other than: (i) sales or other dispositions of
inventory in the ordinary course of business; (ii) sales or other dispositions
to the Company or a Wholly Owned Restricted Subsidiary of the Company by the
Company or any Restricted Subsidiary; (iii) sales or other dispositions of
accounts receivable to DNCC for cash in an amount at least equal to the fair
market value of such accounts receivable; (iv) sales or other dispositions of
rights to construct or launch satellites; and (v) sales or other dispositions
permitted under Section 4.21 of this Indenture (PROVIDED THAT the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company shall be governed by the provisions
58
of Article 5 of this Indenture);
(b) issues or sells Equity Interests of any Restricted Subsidiary
(other than any issue or sale of Equity Interests of ETC or a Subsidiary which
constitutes a Non-Core Asset permitted under Section 4.21 of this Indenture);
in either case, which assets or Equity Interests: (i) have a fair market value
in excess of $35 million (as determined in good faith by the Board of Directors
of the Company evidenced by a resolution of the Board of Directors of the
Company and set forth in an Officers' Certificate delivered to the Trustee); or
(ii) are sold or otherwise disposed of for net proceeds in excess of $35 million
(each of the foregoing, an "Asset Sale"), then:
(A) the Company or such Restricted Subsidiary,
as the case may be, must receive consideration at the
time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Board of
Directors of the Company evidenced by a resolution of the
Board of Directors of the Company and set forth in an
Officers' Certificate delivered to the Trustee not later
than the fifth business day following January 1 and
July 1 of each year and ten days following a request from
the Trustee which certificate shall cover each Asset Sale
made in the six months preceding January 1, July 1 or
date of request, as the case may be) of the assets sold
or otherwise disposed of; and
(B) at least 75% of the consideration therefor
received by the Company or such Restricted Subsidiary, as
the case may be, must be in the form of (x) cash, Cash
Equivalents or Marketable Securities, (y) any asset which
is promptly (and in no event later than 90 days after the
date of transfer to the Company or a Restricted
Subsidiary) converted into cash; PROVIDED that to the
extent that such conversion is at a price that is less
than the fair market value (as determined above) of such
asset at the time of the Asset Sale in which such asset
was acquired, the Company shall be deemed to have made a
Restricted Payment in the amount by which such fair
market value exceeds the cash received upon conversion;
or (z) properties and capital assets (excluding Equity
Interests) to be used by the Company or any of its
Restricted Subsidiaries in a business permitted under
Section 4.17 of this Indenture; PROVIDED, HOWEVER, that
up to $20 million of assets in addition to assets
specified in clauses (x), (y) or (z) above at any one
time may be considered to be cash for purposes of this
clause (B), PROVIDED that the provisions of the next
paragraph are complied with as such non-cash assets are
converted to cash. The amount of any liabilities of the
Company or any Restricted Subsidiary that are assumed by
or on behalf of the transferee in connection with an
Asset Sale (and from which the Company or
59
such Restricted Subsidiary are unconditionally released) shall be
deemed to be cash for the purpose of this clause (B).
The Net Proceeds from such Asset Sale shall be used only: (i) to acquire
assets used in, or stock or other ownership interests in a Person that upon the
consummation of such Asset Sale becomes a Restricted Subsidiary and will be
engaged primarily in, the business of the Company as described under Section
4.17 of this Indenture, to repurchase Notes or if the Company sells any of its
satellites after launch such that the Company or its Restricted Subsidiaries own
less than three in-orbit satellites, only to purchase a replacement satellite;
or (ii) as set forth in the next sentence. Any Net Proceeds from any Asset Sale
that are not applied or invested as provided in the preceding sentence within
365 days after such Asset Sale shall constitute "Excess Proceeds" and shall be
applied to an offer to purchase Notes and other senior Indebtedness of the
Company if and when required under Section 3.09 of this Indenture.
Clause (B) of the second preceding paragraph shall not apply to all or
such portion of the consideration (i) as is designated by the Company in an
Asset Sale as being subject to this paragraph; and (ii) with respect to which
the aggregate fair market value at the time of receipt of all consideration
received by the Company or any Restricted Subsidiary in all such Asset Sales so
designated does not exceed the amount contributed to the Company under Section
4.19 of this Indenture, plus, to the extent any such consideration did not
satisfy clauses (B)(x) or (B)(z) above, upon the exchange or repayment of such
consideration for or with assets which satisfy such clauses, an amount equal to
the fair market value of such consideration (evidenced by a resolution of the
Board of Directors of the Company and set forth in an Officers' Certificate
delivered to the Trustee as set forth in clause (A) above).
In addition, clause (B) above shall not apply to any Asset Sale
(x) where assets not related to the direct broadcast satellite business are
contributed to a joint venture between the Company or one of its Restricted
Subsidiaries and a third party that is not an Affiliate of EchoStar or any of
its Subsidiaries; PROVIDED THAT following the sale, lease, conveyance or other
disposition the Company or one of its Wholly Owned Restricted Subsidiaries owns
at least 50% of the voting and equity interest in such joint venture, (y) to the
extent the consideration therefor received by the Company or a Restricted
Subsidiary would constitute Indebtedness or Equity Interests of a Person that is
not an Affiliate of EchoStar, the Company or one of their respective
Subsidiaries; PROVIDED that the acquisition of such Indebtedness or Equity
Interests is permitted under the provisions of Section 4.07 of this Indenture
and (z) where assets sold are satellites, uplink centers or call centers,
PROVIDED that, in the case of clause (z) the Company and its Restricted
Subsidiaries continue to own at least three satellites, one uplink center and
one call center.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
60
The Company shall not and shall not permit any Restricted Subsidiary to,
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (including any Unrestricted Subsidiary) (each of the
foregoing, an "Affiliate Transaction"), unless:
(a) such Affiliate Transaction is on terms that are no less favorable
to the Company or its Restricted Subsidiaries than those that would have been
obtained in a comparable transaction by the Company or such Subsidiaries with an
unrelated Person; and
(b) if such Affiliate Transaction involves aggregate payments in
excess of $15 million such Affiliate Transaction has been approved by a majority
of the disinterested members of the Board of Directors of the Company, and the
Company delivers to the Trustee no later than five business days following
January 1 or July 1 of each year or ten days following a request from the
Trustee a resolution of the Board of Directors of the Company set forth in an
Officers' Certificate certifying that such Affiliate Transaction has been so
approved and complies with clause (a) above;
PROVIDED, HOWEVER, that (i) the payment of compensation to directors and
management of EchoStar and its Subsidiaries; (ii) transactions between or among
the Company and its Wholly Owned Subsidiaries (other than Unrestricted
Subsidiaries of the Company); (iii) any dividend, distribution, sale, conveyance
or other disposition of any assets of, or Equity Interests in, any Non-Core
Assets or ETC or the proceeds of a sale, conveyance or other disposition
thereof, in accordance with the provisions of this Indenture; (iv) transactions
permitted by the provisions of this Indenture described above under clauses (1),
(2), (5), (6), (8), (9), (10), (11) and (12) of the second paragraph of Section
4.07 of this Indenture; (v) so long as it complies with clause (a) above, the
provision of backhaul, uplink, transmission, billing, customer service,
programming acquisition and other ordinary course services by the Company or any
of its Restricted Subsidiaries to Satellite Communications Operating Corporation
and to Transponder Encryption Services Corporation on a basis consistent with
past practice; and (vi) any transactions between the Company or any Restricted
Subsidiary of the Company and any Affiliate of the Company the Equity Interests
of which Affiliate are owned solely by the Company or one of its Restricted
Subsidiaries, on the one hand, and by Persons who are not Affiliates of the
Company or Restricted Subsidiaries of the Company, on the other hand, shall, in
each case, not be deemed Affiliate Transactions.
SECTION 4.12. LIMITATION ON LIENS.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired, or on any income or profits therefrom
or assign or convey any right to receive income therefrom, except Permitted
Liens.
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SECTION 4.13. ADDITIONAL SUBSIDIARY GUARANTEES.
If the Company or any Guarantor transfers or causes to be transferred,
in one or a series of related transactions, property or assets (including,
without limitation, businesses, divisions, real property, assets or equipment)
having a fair market value (as determined in good faith by the Board of
Directors of the Company evidenced by a resolution of the Board of Directors of
the Company and set forth in an Officers' Certificate delivered to the Trustee
no later than five business days following January 1 and July 1 of each year or
ten days following a request from the Trustee, which certificate shall cover the
six months preceding January 1, July 1 or date of request, as the case may be)
exceeding the sum of $20 million in the aggregate for all such transfers after
the date of this Indenture minus the fair market value of Restricted
Subsidiaries acquired or created after the date of this Indenture that are not
Guarantors (fair market value being determined as of the time of such
acquisition) to Restricted Subsidiaries that are not Guarantors of the Notes,
the Company, shall, or shall cause each of such Subsidiaries to which any amount
exceeding such $20 million (less such fair market value) is transferred to:
(i) execute and deliver to the Trustee a supplemental indenture in form and
substance reasonably satisfactory to the Trustee pursuant to which such
Subsidiary shall unconditionally guarantee all of the Company's obligations
under the Notes on the terms set forth in this Indenture; and (ii) deliver to
the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee that
such supplemental indenture and Guarantee have been duly authorized, executed
and delivered by and are valid and binding obligations of such Subsidiary or
such owner, as the case may be; PROVIDED, HOWEVER, that the foregoing provisions
shall not apply to transfers of property or assets (other than cash) by the
Company or any Guarantor in exchange for cash, Cash Equivalents or Marketable
Securities in an amount equal to the fair market value (as determined in good
faith by the Board of Directors of the Company evidenced by a resolution of the
Board of Directors of the Company and set forth in an Officers' Certificate
delivered to the Trustee no later than five business days following January 1
and July 1 of each year or ten days following a request from the Trustee, which
certificate shall cover the six months preceding January 1, July 1 or date of
request, as the case may be) of such property or assets. In addition, if (i) the
Company or any of its Restricted Subsidiaries acquires or creates another
Restricted Subsidiary or (ii) an Unrestricted Subsidiary of the Company is
redesignated as a Restricted Subsidiary or otherwise ceases to be an
Unrestricted Subsidiary, such Subsidiary shall execute a supplemental indenture
and deliver an opinion, each as required in the preceding sentence; PROVIDED
that no supplemental indenture or opinion shall be required if the fair market
value (as determined in good faith by the Board of Directors of the Company and
set forth in an Officers' Certificate delivered to the Trustee no later than
five business days following January 1 and July 1 of each year or ten days
following a request from the Trustee, which certificate shall cover the six
months preceding such January 1, July 1 or date of request, as the case may be)
of all such Restricted Subsidiaries created, acquired or designated since the
date of this Indenture (fair market value being determined as of the time of
62
creation, acquisition or designation) does not exceed the sum of $20 million in
the aggregate minus the fair market value of the assets transferred to any
Subsidiaries of the Company which do not execute supplemental indentures
pursuant to the preceding sentences; PROVIDED FURTHER that to the extent a
Restricted Subsidiary is subject to the terms of any instrument governing
Acquired Debt, as in effect at the time of acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of such
acquisition) which instrument or restriction prohibits such Restricted
Subsidiary from issuing a guarantee of the Notes, such Restricted Subsidiary
shall not be required to execute such a supplemental indenture until it is
permitted to issue such guarantee pursuant to the terms of such Acquired Debt.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 of this Indenture and the next succeeding paragraph
of this Section 4.14, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its existence as a
corporation, and subject to 4.10, 4.21 and 10.03, the corporate, partnership or
other existence of any Restricted Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any Restricted Subsidiary and (ii) subject to Section 4.10, 4.21 and
10.03, the rights (charter and statutory), licenses and franchises of the
Company and its Restricted Subsidiaries; PROVIDED, HOWEVER, that the Company
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any Restricted Subsidiary if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.15. OFFER TO PURCHASE UPON CHANGE IN CONTROL.
Upon the occurrence of a Change of Control, the Company will be required
to make an offer (a "Change of Control Offer") to each Holder of Notes to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Notes at a purchase price equal to 101% of the aggregate principal
amount thereof, together with accrued and unpaid interest thereon to the date of
repurchase (in either case, the "Change of Control Payment"). Within 15 days
following any Change of Control, the Company shall mail a notice to each Holder
stating:
(a) that the Change of Control Offer is being made pursuant to the
covenant entitled "Section 4.15 - Offer to Purchase Upon Change in Control";
(b) the purchase price and the purchase date, which shall be no
earlier than 30 days nor later than 40 days after the date such notice is mailed
(the "Change of Control Payment Date");
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(c) that any Notes not tendered will continue to accrue interest in
accordance with the terms of this Indenture;
(d) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Payment
Date;
(e) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such
▇▇▇▇▇▇ is withdrawing his election to have such Notes purchased;
(f) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof; and
(g) any other information material to such ▇▇▇▇▇▇'s decision to
tender Notes.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes in connection with a Change of Control.
SECTION 4.16. MAINTENANCE OF INSURANCE.
At all times, the Company or a Wholly Owned Restricted Subsidiary which
is a Guarantor will maintain and be the named beneficiary under Satellite
Insurance with respect to at least one-half of the satellites owned or leased by
the Company or its Subsidiaries (insured in an amount at least equal to the
depreciated cost of such satellites).
In the event that the Company or its Restricted Subsidiaries receive
proceeds from any Satellite Insurance covering any satellite owned by the
Company or any of its Restricted Subsidiaries, or in the event that the Company
or any of its Subsidiaries receives proceeds from any insurance maintained by
any satellite manufacturer or any launch provider covering any of such
satellites, all such proceeds (including any cash, Cash Equivalents or
Marketable Securities deemed to be proceeds of Satellite Insurance pursuant to
the respective definition thereof) shall be used only: (i) to purchase a
replacement satellite if at such time the Company or a Restricted Subsidiary
then owns less than three satellites, PROVIDED that if such replacement
satellite is of lesser value compared to the
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insured satellite, any insurance proceeds remaining after purchase of such
replacement satellite must be applied to the construction, launch and insurance
of a satellite of equal or greater value as compared to the insured satellite
(or in accordance with clause (iii) below); (ii) for purposes permitted under
Section 4.17 hereof if at such time the Company or a Restricted Subsidiary owns
three or more satellites (or in accordance with clause (iii) below); or (iii) to
the extent that such proceeds are not applied or contractually committed to be
applied as described in (i) or (ii) above within 365 days of the receipt of such
proceeds as "Excess Proceeds" to be applied to an offer to purchase Notes as set
forth under Section 3.09 hereof.
SECTION 4.17. ACTIVITIES OF THE COMPANY.
Neither the Company nor any of its Restricted Subsidiaries may engage in
any business other than developing, owning, engaging in and dealing with all or
any part of the business of domestic and international media, entertainment,
electronics or communications, and reasonably related extensions thereof,
including but not limited to the purchase, ownership, operation, leasing and
selling of, and generally dealing in or with, one or more communications
satellites and the transponders thereon, and communications uplink centers, the
acquisition, transmission, broadcast, production and other provision of
programming relating thereto and the manufacturing, distribution and financing
of equipment (including consumer electronic equipment) relating thereto.
SECTION 4.18. THE 110 ACQUISITION.
Upon consummation of the 110 Acquisition, all property and assets
acquired in such transaction or the right to receive such property and assets
will be contributed as capital contributions to the Company or one or more of
the Guarantors that is a Wholly Owned Restricted Subsidiary.
SECTION 4.19. ECHOSTAR EQUITY CONTRIBUTION.
Concurrently with or within five business days of the consummation of
the Offering, EchoStar shall make a capital contribution to the common equity of
the Company in the form of cash, Cash Equivalents or Marketable Securities in an
aggregate amount no less than $200 million.
SECTION 4.20. ACCOUNTS RECEIVABLE SUBSIDIARY.
The Company:
(a) may, and may permit any of its Subsidiaries to, notwithstanding
the provisions of Section 4.07 of this Indenture, make Investments in an
Accounts Receivable Subsidiary: (i) the proceeds of which are applied within
five Business Days of the making thereof solely to finance: (A) the purchase of
accounts receivable of the Company and its Subsidiaries or (B) payments required
in connection with the termination of all then existing arrangements relating to
the
65
sale of accounts receivable or participation interests therein by an Accounts
Receivable Subsidiary (provided that the Accounts Receivable Subsidiary shall
receive cash, Cash Equivalents and accounts receivable having an aggregate fair
market value not less than the amount of such payments in exchange therefor) and
(ii) in the form of Accounts Receivable Subsidiary Notes to the extent permitted
by clause (b) below;
(b) shall not, and shall not permit any of its Subsidiaries to, sell
accounts receivable to an Accounts Receivable Subsidiary except for
consideration in an amount not less than that which would be obtained in an
arm's length transaction and solely in the form of cash or Cash Equivalents;
provided that an Accounts Receivable Subsidiary may pay the purchase price for
any such accounts receivable in the form of Accounts Receivable Subsidiary Notes
so long as, after giving effect to the issuance of any such Accounts Receivable
Subsidiary Notes, the aggregate principal amount of all Accounts Receivable
Subsidiary Notes outstanding shall not exceed 20% of the aggregate purchase
price paid for all outstanding accounts receivable purchased by an Accounts
Receivable Subsidiary since the date of this Indenture (and not written off or
required to be written off in accordance with the normal business practice of an
Accounts Receivable Subsidiary);
(c) shall not permit an Accounts Receivable Subsidiary to sell any
accounts receivable purchased from the Company or its Subsidiaries or
participation interests therein to any other Person except on an arm's length
basis and solely for consideration in the form of cash or Cash Equivalents or
certificates representing undivided interests of a Receivables Trust; provided
an Accounts Receivable Subsidiary may not sell such certificates to any other
Person except on an arm's length basis and solely for consideration in the form
of cash or Cash Equivalents;
(d) shall not, and shall not permit any of its Subsidiaries to, enter
into any guarantee, subject any of their respective properties or assets (other
than the accounts receivable sold by them to an Accounts Receivable Subsidiary)
to the satisfaction of any liability or obligation or otherwise incur any
liability or obligation (contingent or otherwise), in each case, on behalf of an
Accounts Receivable Subsidiary or in connection with any sale of accounts
receivable or participation interests therein by or to an Accounts Receivable
Subsidiary, other than obligations relating to breaches of representations,
warranties, covenants and other agreements of the Company or any of its
Subsidiaries with respect to the accounts receivable sold by the Company or any
of its Subsidiaries to an Accounts Receivable Subsidiary or with respect to the
servicing thereof; PROVIDED that neither the Company nor any of its Subsidiaries
shall at any time guarantee or be otherwise liable for the collectibility of
accounts receivable sold by them;
(e) shall not permit an Accounts Receivable Subsidiary to engage in
any business or transaction other than the purchase and sale of accounts
receivable or participation interests therein of the Company and its
Subsidiaries and activities
66
incidental thereto;
(f) shall not permit an Accounts Receivable Subsidiary to incur any
Indebtedness other than the Accounts Receivable Subsidiary Notes, Indebtedness
owed to the Company and Non-Recourse Indebtedness; PROVIDED that the aggregate
principal amount of all such Indebtedness of an Accounts Receivable Subsidiary
shall not exceed the book value of its total assets as determined in accordance
with GAAP;
(g) shall cause any Accounts Receivable Subsidiary to remit to the
Company or a Restricted Subsidiary of the Company on a monthly basis as a
distribution all available cash and Cash Equivalents not held in a collection
account pledged to acquirers of accounts receivable or participation interests
therein, to the extent not applied to (i) pay interest or principal on the
Accounts Receivable Subsidiary Notes or any Indebtedness of such Accounts
Receivable Subsidiary owed to the Company, (ii) pay or maintain reserves for
reasonable operating expenses of such Accounts Receivable Subsidiary or to
satisfy reasonable minimum operating capital requirements or (iii) to finance
the purchase of additional accounts receivable of the Company and its
Subsidiaries; and
(h) shall not, and shall not permit any of its Subsidiaries to, sell
accounts receivable to, or enter into any other transaction with or for the
benefit of, an Accounts Receivable Subsidiary (i) if such Accounts Receivable
Subsidiary pursuant to or within the meaning of any Bankruptcy Law (A) commences
a voluntary case, (B) consents to the entry of an order for relief against it in
an involuntary case, (C) consents to the appointment of a custodian of it or for
all or substantially all of its property, (D) makes a general assignment for the
benefit of its creditors, or (E) generally is not paying its debts as they
become due; or (ii) if a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against such Accounts
Receivable Subsidiary in an involuntary case, (B) appoints a Custodian of such
Accounts Receivable Subsidiary or for all or substantially all of the property
of such Accounts Receivable Subsidiary, or (C) orders the liquidation of such
Accounts Receivable Subsidiary, and, with respect to clause (ii) hereof, the
order or decree remains unstayed and in effect for 60 consecutive days.
SECTION 4.21. DISPOSITIONS OF ETC AND NON-CORE ASSETS.
Notwithstanding Section 4.07 and Section 4.10 of this Indenture, in the
event that the 110 Acquisition has been consummated, the requirements set forth
in Section 4.18 of this Indenture have been satisfied and the Indebtedness to
Cash Flow Ratio of the Company would not have exceeded 6.0 to 1 on a pro forma
basis after giving effect to the sale of all of the Company's Equity Interests
in or assets of ETC, then (1) the payment of any dividend or distribution
consisting of Equity Interests or assets of ETC or the proceeds of a sale,
conveyance or other
67
disposition of such Equity Interests or assets or the sale, conveyance or other
disposition of Equity Interests or assets of ETC or the proceeds of a sale,
conveyance or other disposition of such Equity Interests or assets shall not
constitute a Restricted Payment and (2) the sale, conveyance or other
disposition of the Equity Interests or assets of ETC or the proceeds of a sale,
conveyance or other disposition of such Equity Interests or assets shall not
constitute an Asset Sale and (3) upon delivery of an Officers' Certificate to
the Trustee evidencing satisfaction of the conditions to such release and a
written request to the Trustee requesting such a release, ETC shall be
discharged and released from its Guarantee and, PROVIDED that the Company
designates ETC as an Unrestricted Subsidiary, from all covenants and
restrictions contained in this Indenture; PROVIDED that no such payment,
dividend, distribution, sale, conveyance or other disposition of any kind
(collectively, a "Payout") described in clauses (1) and (2) above shall be
permitted if at the time of such Payout (1) after giving pro forma effect to
such Payout, the Company would not have been permitted under Section 4.07 of
this Indenture to make a Restricted Payment in an amount equal to the total (the
"ETC Amount Due") of (x) the amount of all Investments (other than the
contribution of (i) title to the headquarters building of ETC in Inverness,
Colorado and the tangible assets therein to the extent used by ETC as of the
date of this Indenture and (ii) patents, trademarks and copyrights applied for
or granted as of the date of this Indenture to the extent used by ETC or result
from the business of ETC, in each case, to ETC) made in ETC by the Company or
its Restricted Subsidiaries since the date of this Indenture (which, in the case
of Investments in exchange for assets, shall be valued at the fair market value
of each such asset at the time each such Investment was made) minus (y) the
amount of the after-tax value of all cash returns on such Investments paid to
the Company or its Wholly Owned Restricted Subsidiaries (or, in the case of a
non-Wholly Owned Restricted Subsidiary, the pro rata portion thereof
attributable to the Company) minus (z) $25 million and (2) any contract,
agreement or understanding between ETC and the Company or any Restricted
Subsidiary of the Company and any loan or advance to or guarantee with, or for
the benefit of, ETC issued or made by the Company or one of its Restricted
Subsidiaries, is on terms that are less favorable to the Company or its
Restricted Subsidiaries than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiaries with an unrelated
Person, all as evidenced by a resolution of the Board of Directors of the
Company set forth in an Officers' Certificate delivered to the Trustee
certifying that each such contract, agreement, understanding, loan, advance and
guarantee has been approved by a majority of the members of such Board. In the
event that at the time of such Payout, the condition set forth in clause (1) of
the proviso of the preceding sentence cannot be satisfied, ETC may seek to have
a Person other than the Company or one of its Restricted Subsidiaries pay in
cash an amount to the Company or its Restricted Subsidiaries such that after
taxes, such amount is greater than or equal to the ETC Amount Due or the portion
of the ETC Amount Due which would not have been permitted to be made as a
Restricted Payment by the Company; PROVIDED that such payment shall be treated
for purposes of this Section 4.21 as a cash return on the Investments made in
ETC and provided further that for all purposes under this Indenture, such
payment shall not be included in any calculation under clauses (iii)(A) through
68
(iii)(E) of the first paragraph of Section 4.07 of this Indenture. To the
extent that the ETC Amount Due or any portion thereof would have been permitted
to be made as a Restricted Payment by the Company and was not paid by another
Person as permitted by the preceding sentence, the Company shall be deemed to
have made a Restricted Payment in the amount of such ETC Amount Due or portion
thereof, as the case may be. It shall be a condition to any Payout pursuant to
the first paragraph of this Section 4.21 that, commencing with the quarter
commencing July 1, 1999, the Company shall have caused ETC to maintain, in
accordance with GAAP, consolidated financial statements for ETC and its
Subsidiaries on a "stand-alone" basis.
Notwithstanding Section 4.07 and Section 4.10 of this Indenture, (1) the
payment of any dividend or distribution consisting of Equity Interests or assets
of any Non-Core Asset or the proceeds of a sale, conveyance or other disposition
of such Equity Interests or assets or the sale, conveyance or other disposition
of Equity Interests in or assets of any Non-Core Asset or the proceeds of a
sale, conveyance or other disposition of such Equity Interests or assets shall
not constitute a Restricted Payment and (2) the sale, conveyance or other
disposition of the Equity Interests or assets of any Non-Core Asset or the
proceeds of a sale, conveyance or other disposition of such Equity Interests or
assets shall not constitute an Asset Sale; and (3) upon delivery of an Officers'
Certificate to the Trustee evidencing satisfaction of the conditions to such
release and a written request to the Trustee requesting such a release, any such
Non-Core Asset that is a Guarantor shall be discharged and released from its
Guarantee and, provided the Company designates such Non-Core Asset as an
Unrestricted Subsidiary, from all covenants and restrictions contained in this
Indenture; PROVIDED that no Payout of any Non-Core Asset shall be permitted such
as described in clauses (1) and (2) above if at the time of such Payout
(1) after giving pro forma effect to such Payout, the Company would not have
been permitted under Section 4.07 of this Indenture to make a Restricted Payment
in an amount equal to the total (the "Non-Core Asset Amount Due") of (x) the
amount of all Investments made in such Non-Core Asset by the Company or its
Restricted Subsidiaries since the date of this Indenture (which, in the case of
Investments in exchange for assets, shall be valued at the fair market value of
each such asset at the time each such Investment was made) minus (y) the amount
of the after-tax value of all cash returns on such Investments paid to the
Company or its Wholly Owned Restricted Subsidiaries (or, in the case of a
non-Wholly Owned Restricted Subsidiary, the pro rata portion thereof
attributable to the Company) minus (z) $25 million in the aggregate for all such
Payouts and $5 million for any single such Payout and (2) any contract,
agreement or understanding between or relating to a Non-Core Asset and the
Company or a Restricted Subsidiary of the Company and any loan or advance to or
guarantee with, or for the benefit of, a Restricted Subsidiary which is a
Non-Core Asset issued or made by the Company or one of its Restricted
Subsidiaries, is on terms that are less favorable to the Company or its
Restricted Subsidiaries than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiaries with an unrelated
Person, all as evidenced by a resolution of the Board of Directors of the
Company
69
set forth in an Officers' Certificate delivered to the Trustee certifying that
each such contract, agreement, understanding, loan, advance and guarantee has
been approved by a majority of such Board. In the event that at the time of such
Payout, the condition set forth in clause (1) of the proviso of the preceding
sentence cannot be satisfied, such Restricted Subsidiary which is a Non-Core
Asset may seek to have a Person other than the Company or one of its Restricted
Subsidiaries pay in cash an amount to the Company such that after taxes, such
amount, is greater than or equal to the Amount Due or the portion of the
Non-Core Asset Amount Due which would not have been permitted to be made as a
Restricted Payment by the Company; PROVIDED that such payment shall be treated
for purposes of this Section 4.21 as a cash return on the Investments made in a
Non-Core Asset and provided further that for all purposes under this Indenture,
such payment shall not be included in any calculation under clauses (iii)(A)
through (iii)(E) of the first paragraph of Section 4.07 of this Indenture. To
the extent that the Non-Core Asset Amount Due or any portion thereof would have
been permitted to be made as a Restricted Payment by the Company and was not
paid by another Person as permitted by the preceding sentence, the Company shall
be deemed to have made a Restricted Payment in the amount of such Non-Core Asset
Amount Due or portion thereof, as the case may be.
Promptly after any Payout pursuant to the terms of this Section 4.21,
the Company shall deliver an Officers' Certificate to the Trustee setting forth
the Investments made by the Company or its Restricted Subsidiaries in ETC or a
Non-Core Asset, as the case may be, and certifying that the requirements of this
Section 4.21 have been satisfied in connection with the making of such Payout.
SECTION 4.22. PAYMENTS FOR CONSENT.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any holder of a Note for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or agreed to be paid to all holders of the Notes that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
ARTICLE 5.
SUCCESSORS
SECTION 5.1. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving entity), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions to, another Person unless (a) the Company is
the
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surviving Person or the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia; (b) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company, pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, under the Notes and
this Indenture; (c) immediately after such transaction no Default or Event of
Default exists; and (d) the Company or the Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made (i) shall have Consolidated Net Worth immediately after the transaction
(but prior to any purchase accounting adjustments or accrual of deferred tax
liabilities resulting from the transaction) not less than the Consolidated Net
Worth of the Company immediately preceding the transaction and (ii) would, at
the time of such transaction after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Indebtedness to Cash Flow Ratio test set forth in the first paragraph of
Section 4.09.
Notwithstanding the foregoing, the Company may merge with another Person
if (a) the Company is the surviving Person; (b) the consideration issued or paid
by the Company in such merger consists solely of Equity Interests (other than
Disqualified Stock) of the Company or Equity Interests of EchoStar; and (c)
immediately after giving effect to such merger, the Company's Indebtedness to
Cash Flow Ratio does not exceed the Company's Indebtedness to Cash Flow Ratio
immediately prior to such merger.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Indenture
referring to the Company shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of the Company under
this Indenture with the same effect as if such successor Person has been named
as the Company, herein.
ARTICLE 6.
DEFAULTS AND REMEDIES
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SECTION 6.1. EVENTS OF DEFAULT.
Each of the following constitutes an "EVENT OF DEFAULT":
(a) default for 30 days in the payment when due of
interest on the Notes;
(b) default in the payment when due of principal of the
Notes at maturity, upon redemption or otherwise;
(c) failure to comply with the provisions of Section
4.10, Section 4.11, Section 4.15 or, Section 4.16;
(d) default under Section 4.07 or Section 4.09, which
default remains uncured for 30 days, or the breach of any
representation or warranty, or the making of any untrue
statement, in any certificate delivered by the Company pursuant
to this Indenture;
(e) failure by the Company for 60 days after notice from
the Trustee or the Holders of at least 25% in principal amount
of the Notes then outstanding to comply with any of its other
agreements in this Indenture or the Notes;
(f) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Restricted
Subsidiaries), which default is caused by a failure to pay when
due principal or interest on such Indebtedness within the grace
period provided in such Indebtedness (a "PAYMENT DEFAULT"), and
the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which
there has been a Payment Default, aggregates $20.0 million or
more;
(g) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Restricted
Subsidiaries), which default results in the acceleration of such
Indebtedness prior to its express maturity and the principal
amount of any such Indebtedness, together with the principal
amount of any other Indebtedness under which there has been a
Payment Default or the maturity of which has been so
accelerated, aggregates $20.0 million or more; provided that
any acceleration (other than an acceleration which is the result
of a Payment Default under clause (f) above) of Indebtedness
under the Outstanding Deferred Payments in aggregate principal
amount not to exceed $50 million shall be deemed not to
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constitute an acceleration pursuant to this clause (g);
(h) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments (other than any judgment as
to which a reputable insurance company has accepted full
liability) aggregating in excess of $20.0 million, which
judgments are not stayed within 60 days after their entry;
(i) any Guarantee of the Notes or this Indenture shall
be held in a judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect, or
any Guarantor, or any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Guarantee of
any Notes or this Indenture;
(j) EchoStar, the Company, any Guarantor or any
Significant Subsidiary of the Company pursuant to or within the
meaning of Bankruptcy Law: (i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in
an involuntary case; (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property;
or (iv) makes a general assignment for the benefit of its
creditors; and
(k) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief
against EchoStar, the Company, any Guarantor or any Significant
Subsidiary of the Company in an involuntary case; (ii) appoints
a Custodian of EchoStar, the Company, any Guarantor or any
Significant Subsidiary of the Company or for all or
substantially all of the property of EchoStar, the Company, any
Guarantor or any Significant Subsidiary of the Company; or (iii)
orders the liquidation of EchoStar, the Company, any Guarantor
or any Significant Subsidiary of the Company, and the order or
decree remains unstayed and in effect for 60 consecutive days.
SECTION 6.2. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clause (j) or (k) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes by written notice to the Company and the
Trustee, may declare all the Notes to be due and payable immediately. In the
case of an Event of Default specified in clause (j) or (k) of Section 6.01, with
respect to EchoStar, the Company, any Guarantor or any Significant Subsidiary of
the Company, all outstanding Notes shall become and be immediately due and
payable without further action or notice. Holders of the Notes may not enforce
this Indenture or the Notes except as provided in this Indenture. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it
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determines that withholding notice is in such Holders' interest. The Holders of
a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company or its
Subsidiaries with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to Section 3.07, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law.
All powers of the Trustee under this Indenture will be subject to
applicable provisions of the Communications Act, including without limitation,
the requirements of prior approval for DE FACTO or DE JURE transfer of control
or assignment of Title III licenses.
SECTION 6.3. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes and this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
Notes then outstanding, by notice to the Trustee, may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences under this Indenture, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest on, the
Notes. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.5. CONTROL BY MAJORITY.
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Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with the law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability.
SECTION 6.6. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the Trustee
to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and,
if requested, provide to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority
in principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
SECTION 6.7. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder of
the Note.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
75
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), the Company's creditors or the Company's
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder of
a Note to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders of the
Notes, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders of the Notes may be entitled to receive
in such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Note any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder of a Note thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder of a
Note in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
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Second: to Holders of Notes for amounts due and unpaid
on the Notes for principal, premium, if any, and interest,
ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal,
premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent Person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture.
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However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders of Notes, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to the Trustee against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
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(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Guarantor shall be
sufficient if signed by an Officer of the Company or such Guarantor.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.01, the Trustee shall have no duty
to inquire as to the performance of the Company's covenants in Article 4. In
addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Sections
4.01, 6.01(a) and 6.01(b) or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or obtained actual knowledge.
(h) Delivery of reports, information and documents to the Trustee under
Section 4.03 is for informational purposes only and the Trustee's receipt of the
foregoing shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee (if any of the Notes are registered pursuant to the
Securities Act), or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture,
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it shall not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA
Section 313(a) (but if no event described in TIA Section 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA Section 313(b). The
Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the SEC and each stock exchange on
which any Notes are listed. The Company shall promptly notify the Trustee when
any Notes are listed on any stock exchange.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, except any such
loss, liability or expense as may be attributable to the gross negligence,
willful misconduct or bad faith of the Trustee. The Trustee shall notify the
Company
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promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction and discharge of
this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(j) or (k) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company and obtaining the prior written
approval of the FCC, if so required by the Communications Act, including Section
310(d) and the rules and regulations promulgated thereunder. The Holders of at
least a majority in principal amount of the then outstanding Notes may remove
the Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee (subject to the prior written approval of the FCC, if
required by the Communications Act, including Section 310(d), and the rules and
regulations promulgated thereunder) if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(c) the Trustee is no longer in compliance with the
foreign ownership provisions of Section 310 of the
Communications Act and the rules and regulations promulgated
thereunder.
(d) a Custodian or public officer takes charge of the
Trustee or its
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property; or
(e) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor ▇▇▇▇▇▇▇ does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee after written request by any Holder of a Note who has
been a Holder of a Note for at least six months fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trustee power, shall be subject to supervision or examination by federal or
state authority and shall have a combined capital and surplus of at least $25
million as set forth in its most recent published annual report of condition.
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This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, with respect to
the Notes, elect to have either Section 8.02 or 8.03 be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article 8.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 of the option applicable
to this Section 8.02, the Company and the Guarantors shall be deemed to have
been discharged from its obligations with respect to all outstanding Notes on
the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive payments in respect of the principal of, premium,
if any, and interest on such Notes when such payments are due, or on the
redemption date, as the case may be, (b) the Company's obligations with respect
to such Notes under Sections 2.05, 2.07, 2.08, 2.10, 2.11 and 4.02, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (d) this Article 8. Subject
to compliance with this Article 8, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 with respect to the Notes.
SECTION 8.3. COVENANT DEFEASANCE.
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Upon the Company's exercise under Section 8.01 of the option applicable
to this Section 8.03, the Company shall be released from its obligations under
the covenants contained in Sections 3.09, 4.03, 4.04, 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21 and 5.01 with
respect to the outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01(c),
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 8.01 of the option applicable to this Section 8.03, Sections 6.01(c)
through 6.01(i) shall not constitute Events of Default.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or Section 8.03 to the outstanding Notes:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 who shall agree to
comply with the provisions of this Article 8 applicable to it)
as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Notes, (i) cash in
U.S. Dollars, (ii) non-callable Government Securities which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in
U.S. Dollars, or (iii) a combination thereof, in such amounts,
as will be sufficient in each case, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge (A)
the principal of, premium, if any, and interest on the
outstanding Notes on the stated maturity or on the applicable
redemption date, as the case may be, of such principal or
installment of principal, premium, if any, or interest and (B)
any mandatory sinking fund payments or analogous payments
applicable to the outstanding Notes on the day on which such
payments are due and payable in accordance with the terms of
84
this Indenture and of such Notes; PROVIDED that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
non-callable Government Securities to said payments with respect to the
Notes;
(b) In the case of an election under Section 8.02, the
Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably satisfactory to the
Trustee confirming that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling or (ii) since the date hereof, there has been a change in
the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that,
the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such
Legal Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not
occurred;
(c) In the case of an election under Section 8.03, the
Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably satisfactory to the
Trustee to the effect that the Holders of the outstanding Notes
will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be
subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) No Default or Event of Default with respect to the
Notes shall have occurred and be continuing on the date of such
deposit or, in so far as Section 6.01(j) or 6.01(k) is
concerned, at any time in the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of
such period);
(e) Such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is
bound;
(f) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the
Company pursuant to its election under Section 8.02 or 8.03 was
not made by the Company with the intent of preferring the
Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding creditors
of the Company or others; and
(g) The Company shall have delivered to the Trustee an
Officers'
85
Certificate and an Opinion of Counsel in the United States, each stating
that all conditions precedent provided for relating to either the Legal
Defeasance under Section 8.02 or the Covenant Defeasance under Section
8.03 (as the case may be) have been complied with as contemplated by
this Section 8.04.
SECTION 8.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06, all money and Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the "Trustee") pursuant to
Section 8.04 in respect of the outstanding Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company or a Guarantor, if any, acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or Government Securities
deposited pursuant to Section 8.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or Government Securities held by it as provided in Section
8.04 which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(a)), are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.6. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
secured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustees thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the
86
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
Dollars or Government Notes in accordance with Section 8.02 or 8.03, as the case
may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03 until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 or 8.03, as the case may be;
PROVIDED, HOWEVER, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture, the Notes or
the Guarantees without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes or Guarantees in
addition to or in place of certificated Notes or the Guarantees;
(c) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders of the Notes in the case
of a merger or consolidation pursuant to Article 5, with respect
to the Company and pursuant to Section 10.03, with respect to
the Guarantors;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or the Guarantees
or that does not adversely affect the legal rights hereunder of
any Holder of the Notes or the Guarantors; or
(e) to comply with requirements of the SEC in order to
effect or
87
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of the Board
of Directors of the Company and each Guarantor authorizing the execution of any
such amended or supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 9.06, the Trustee shall join with the Company and
the Guarantors in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture which affects its own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.2. WITH CONSENT OF HOLDERS OF NOTES.
The Company, Guarantors and the Trustee may amend or supplement this
Indenture, the Notes or the Guarantees or any amended or supplemental Indenture
with the written consent of the Holders of Notes of at least a majority in
aggregate principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes), and
any existing Default and its consequences or compliance with any provision of
this Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for the Notes).
Notwithstanding the foregoing, (a) Sections 3.09, 4.10 and 4.15 of this
Indenture (including, in each case, the related definitions) may not be amended
or waived without the written consent of at least 66-2/3% in principal amount of
the Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Notes) and (b) without the consent of
each Holder affected, an amendment or waiver may not (with respect to any Notes
held by a non-consenting Holder of Notes):
(i) reduce the aggregate principal amount of Notes
whose Holders must consent to an amendment, supplement or
waiver;
(ii) reduce the principal of or change the fixed
maturity of any Note or alter the provisions with respect to the
redemption of the Notes;
(iii) reduce the rate of or change the time for payment
of interest on any Note;
(iv) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on the
Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of
the then outstanding Notes and a waiver of the payment default
that resulted from such acceleration);
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(v) make any Note payable in money other than that
stated in the Notes;
(vi) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of principal of or interest
on the Notes;
(vii) waive a redemption payment with respect to any
Note; or
(viii) make any change in the foregoing amendment and
waiver provisions.
Upon the request of the Company accompanied by a resolution of the Board
of Directors of the Company and each Guarantor authorizing the execution of any
such amended or supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
9.06, the Trustee shall join with the Company and the Guarantors in the
execution of such amended or supplemental Indenture unless such amended or
supplemental Indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture, the Notes or the
Guarantees shall be set forth in an amended or supplemental Indenture that
complies with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
89
debt as the consenting ▇▇▇▇▇▇'s Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder of a Note.
The Company may fix a record date for determining which Holders of the
Notes must consent to such amendment, supplement or waiver. If the Company
fixes a record date, the record date shall be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most recent
list of Holders of Notes furnished to the Trustee prior to such solicitation
pursuant to Section 2.05 or (ii) such other date as the Company shall designate.
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. Neither
the Company nor any Guarantor may sign an amendment or supplemental Indenture
until its Board of Directors approves it.
ARTICLE 10.
GUARANTEES
SECTION 10.1. GUARANTEE.
Each of the Guarantors, jointly and severally, hereby unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the Obligations of the
Company hereunder or thereunder, that: (a) the principal of and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the
90
Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, each of the
Guarantors, jointly and severally, will be obligated to pay the same
immediately. Each of the Guarantors, jointly and severally, hereby agrees that
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Guarantors, jointly and severally, hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first aginst the Company, protest, notice (except that the Trustee
shall provide at least ten days' prior written notice to the Company on behalf
of the Guarantors before taking any action for which the Communications Act
and/or the FCC rules require such notice and which right to notice is not
waivable by any Guarantor) and all demands whatsoever and covenant that this
Guarantee will not be discharged except by complete performance of the
Obligations guaranteed hereby. If any Holder or the Trustee is required by any
court or otherwise to return to the Company or any Guarantor, or any Custodian,
Trustee, liquidator or other similar official acting in relation to either the
Company or any Guarantor, any amount paid by either to the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each of the Guarantors, jointly and
severally, agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby. Each
of the Guarantors, jointly and severally, further agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the Obligations guaranteed hereby may be accelerated as
provided in Article 6 for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6, such obligations
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.
Notwithstanding the foregoing, in the event that any Guarantee would
constitute or result in a violation of any applicable fraudulent conveyance or
similar law of any relevant jurisdiction, the liability of the applicable
Guarantor under its Guarantee shall be reduced to the maximum amount permissible
under such fraudulent conveyance or similar law. The Guarantors hereby agree as
among themselves that each Guarantor that makes a payment or distribution under
a Guarantee shall be entitled to a pro rata contribution from each other
Guarantor
91
hereunder based on the net assets of each other Guarantor. The preceding
sentence shall in no way affect the rights of the Holders of Notes to the
benefits of this Indenture, the Notes or the Guarantees.
Nothing in this Section 10.01 shall apply to claims of, or payments to,
the Trustee under or pursuant to the provisions of Section 7.07.
Nothing contained in this Section 10.01 or elsewhere in this Indenture,
the Notes or the Guarantees, shall impair, as between any Guarantor and the
Holder of any Note, the obligation of such Guarantor, which is unconditional and
absolute, to pay to the Holder thereof the principal of, premium, if any, and
interest on the Notes in accordance with their terms and the terms of the
Guarantee and this Indenture, nor shall anything herein or therein prevent the
Trustee or the Holder of any Note from exercising all remedies otherwise
permitted by applicable law or hereunder or thereunder upon the occurrence of an
Event of Default.
SECTION 10.2. EXECUTION AND DELIVERY OF GUARANTEES.
To evidence its Guarantee set forth in Section 10.01, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form of
Exhibit B shall be endorsed by an officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by its President or one of its Vice
Presidents and attested to by an Officer.
Each of the Guarantors, jointly and severally, hereby agrees that its
Guarantee set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Guarantee.
If an officer or Officer whose signature is on this Indenture or on the
Guarantee of a Guarantor no longer holds that office at the time the Trustee
authenticates the Note on which the Guarantee of such Guarantor is endorsed, the
Guarantee of such Guarantor shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantees set forth in
this Indenture on behalf of the Guarantors.
SECTION 10.3. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Subject to 10.04, a Guarantor may not, and the Company will not cause or
permit any Guarantor to, consolidate or merge with or into (whether or not such
Guarantor is the surviving entity), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions to, another Person other than the Company or
another Guarantor unless:
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(a) such Guarantor is the surviving Person or the Person
formed by or surviving any such consolidation or merger (if
other than such Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of
Columbia;
(b) the Person formed by or surviving any such consolidation
or merger (if other than such Guarantor) or the Person to which
such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of
such Guarantor, pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee, under the Notes and this
Indenture;
(c) immediately after such transaction no Default or Event of
Default exists; and
(d) (i) the Company shall have Consolidated Net Worth
immediately after the transaction (after any purchase accounting
adjustments or accrual of deferred tax liabilities resulting
from the transaction) not less than the Consolidated Net Worth
of the Company immediately preceding the transaction.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of any
Guarantee previously signed by the Guarantor and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Guarantees to be issuable hereunder by such ▇▇▇▇▇▇▇▇▇
and delivered to the Trustee. All the Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Guarantees had been issued at the date of
the execution of such Guarantee by such Guarantor.
Nothing contained in this Indenture shall prevent any consolidation or
merger of a Guarantor that is a Wholly Owned Restricted Subsidiary with or into
the Company or another Guarantor that is a Wholly Owned Restricted Subsidiary of
the Company or shall prevent any sale or conveyance of the property of a
Guarantor that is a Wholly Owned Restricted Subsidiary as an entirety or
substantially as an entirety to the Company or another Guarantor that is a
Wholly Owned Restricted Subsidiary of the Company. Except as set forth in
Articles 4 and 5, nothing contained in this Indenture shall prevent any
consolidation or merger of a Guarantor that is a Restricted Subsidiary with or
into the Company or
93
another Guarantor that is a Restricted Subsidiary of the Company or shall
prevent any sale or conveyance of the property of a Guarantor that is a
Restricted Subsidiary as an entirety or substantially as an entirety to the
Company or another Guarantor that is a Restricted Subsidiary of the Company.
SECTION 10.4. RELEASES FROM GUARANTEES.
If pursuant to any direct or indirect sale of assets (including, if
applicable, all of the capital stock of any Guarantor) or other disposition by
way of merger, consolidation or otherwise the assets sold include all or
substantially all of the assets of any Guarantor or all of the capital stock of
any such Guarantor, then such Guarantor or the Person acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such a Guarantor) shall be released and relieved of its obligations
under its Guarantee or Section 10.03, as the case may be; PROVIDED that in the
event of an Asset Sale, the Net Proceeds from such sale or other disposition are
applied in accordance with the provisions of Section 4.10. In addition, a
Guarantor shall be released and relieved of its obligations under its Guarantee
or Section 10.03, as the case may be (1) if such Guarantor is dissolved or
liquidated in accordance with the provisions of this Indenture; (2) if the
Company designates any such Guarantor as an Unrestricted Subsidiary in
compliance with the terms of this Indenture; or (3) without limiting the
generality of the foregoing, in the case of ETC or any Guarantor which
constitutes a Non-Core Asset, upon the sale or other disposition of any Equity
Interest of ETC or such Guarantor which constitutes a Non-Core Asset,
respectively. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including without limitation Section 4.10 or 4.21 if applicable, the
Trustee shall execute any documents reasonably required in order to evidence the
release of any such Guarantor from its obligations under its Guarantee. Any
such Guarantor not released from its obligations under its Guarantee shall
remain liable for the full amount of principal of and interest on the Notes and
for the other obligations of such Guarantor under this Indenture as provided in
this Article 10.
ARTICLE 11.
MISCELLANEOUS
SECTION 11.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 11.2. NOTICES.
Any notice or communication by the Company, the Guarantors or the
Trustee to the other is duly given if in writing and delivered in Person or
mailed
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by first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company or the Guarantors:
EchoStar DBS Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
With a copy to:
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to the Trustee:
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company, each Guarantor or the Trustee, by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders of
Notes) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of a Note shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder of a Note or any
defect in it shall not affect its sufficiency with respect to other Holders of
Notes.
95
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders of Notes, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.3. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders of the Notes may communicate pursuant to TIA Section 312(b) with
other Holders of Notes with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 11.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action
have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 11.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or
not such covenant or condition has been satisfied; and
96
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders of Notes. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 11.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
INCORPORATORS AND STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of EchoStar,
the Company, the Guarantors or any of their Affiliates, as such, shall have any
liability for any obligations of EchoStar, the Company, the Guarantors and any
of their Affiliates under the Notes, the Guarantees or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes.
SECTION 11.8. GOVERNING LAW.
The internal law of the State of New York shall govern and be used to
construe this Indenture, the Notes and the Guarantees.
SECTION 11.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of EchoStar, the Company or any of their respective Subsidiaries.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company, the Guarantors in this Indenture, the
Notes and the Guarantees shall bind the successors of the Company and the
Guarantors, respectively. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed
97
copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
[Signatures on following page]
98
IN WITNESS WHEREOF, the parties hereto have caused this Indenture 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
DIRECT BROADCASTING SATELLITE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR SATELLITE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR TECHNOLOGIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR SATELLITE BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
DISH, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
DIRECTSAT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHO ACCEPTANCE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHOSPHERE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
DISH INSTALLATION NETWORK CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
HT VENTURES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
SATELLITE SOURCE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
HOUSTON TRACKER SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR NORTH AMERICA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
SKY VISTA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR INDONESIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR SPACE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
[Face of Note]
---------------------------------------------------------------------------
9 1/4% Senior Note due 2006
Cert. No.
CUSIP No.
---------
EchoStar DBS Corporation
promises to pay to
----------------
or its registered assigns
the principal sum of
--------------
Dollars on February 1, 2006.
Interest Payment Dates: February 1 and August 1, commencing August 1, 1999.
Record Dates: January 15 and July 15 (whether or not a Business Day).
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
Dated:
------------
ECHOSTAR DBS CORPORATION
By:
------------------------------
Title:
By:
------------------------------
Title:
(SEAL)
This is one of the Notes
referred to in the within-
mentioned Indenture:
U.S. Bank Trust National Association, as Trustee
By:
--------------------
A-103
Authorized Signatory
Dated:
---------------
(Back of Note)
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated
(a) INTEREST. EchoStar DBS Corporation, a Colorado corporation (the
"Company") promises to pay interest on the principal amount of this Note at the
rate and in the manner specified below. Interest will accrue at 9 1/4% per annum
and will be payable semi-annually in cash on each February 1 and August 1,
commencing August 1, 1999, or if any such day is not a Business Day on the next
succeeding Business Day (each an "INTEREST PAYMENT DATE") to Holders of record
of the Notes at the close of business on the immediately preceding January 15
and July 15, whether or not a Business Day. Interest will be computed on the
basis of a 360-day year consisting of twelve 30-day months. Interest shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from January 25, 1999. To the extent lawful, the Company
shall pay interest on overdue principal at the rate of the then applicable
interest rate on the Notes; it shall pay interest on overdue installments of
interest (without regard to any applicable grace periods) at the same rate to
the extent lawful. In addition, Holders may be entitled to the benefits of
certain provisions of the Registration Rights Agreement.
(b) METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the record date next preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such
Interest Payment Date. The Holder hereof must surrender this Note to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Notes will be payable both as to
principal and interest at the office or agency of the Company maintained for
such purpose or, at the option of the Company, payment of interest may be made
by check mailed to the Holders of Notes at their respective addresses set forth
in the register of Holders of Notes. Unless otherwise designated by the Company,
the Company's office or agency will be the office of the Trustee maintained for
such purpose.
(c) PAYING AGENT AND REGISTRAR. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder of a Note. The Company may act
in any such capacity.
(d) INDENTURE. The Company issued the Notes under an Indenture, dated as
of January 25, 1999 (the "INDENTURE"), among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part
A-104
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb), as in effect on the date of the Indenture. The
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and such act for a statement of such terms. The terms of the Indenture
shall govern any inconsistencies between the Indenture and the Notes. The Notes
are unsecured obligations of the Company limited to $375,000,000 in aggregate
principal amount.
(e) OPTIONAL REDEMPTION. Except as provided in the next paragraph, the
Notes will not be redeemable at the Company's option prior to February 1, 2003.
Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, together with accrued and unpaid interest thereon to the
applicable redemption date, if redeemed during the 12-month period beginning on
February 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003 104.625%
2004 102.313
2005 100.000%
Notwithstanding the foregoing, at any time prior to February 1, 2002, the
Company may redeem up to 35% of the aggregate principal amount of the Notes
outstanding at a redemption price equal to 109.250% of the principal amount
thereof on the repurchase date, together with accrued and unpaid interest to
such repurchase date, with the net cash proceeds of one or more public or
private sales (including sales to EchoStar, regardless of whether EchoStar
obtained such funds from an offering of Equity Interests or Indebtedness of
EchoStar or otherwise) of Equity Interests (other than Disqualified Stock) of
the Company (other than proceeds from a sale to any Subsidiary of the Company or
any employee benefit plan in which the Company or any of its Subsidiaries
participates); PROVIDED that: (a) at least 65% in aggregate principal amount of
the Notes originally issued remain outstanding immediately after the occurrence
of such redemption; (b) such redemption occurs within 120 days of the date of
the closing of any such sale; and (c) the sale of such Equity Interests is made
in compliance with the terms of the Indenture.
(f) REPURCHASE AT OPTION OF HOLDER. Upon the occurrence of a Change of
Control, the Company will be required to offer to purchase on the Change of
Control Payment Date all outstanding Notes at a purchase price equal to 101% of
the aggregate principal amount thereof, together with accrued and unpaid
interest thereon to the date of purchase. Holders of Notes that are subject to
an offer to purchase will receive a Change of Control Offer from the Company
prior to any related Change of Control Payment Date and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
When the cumulative amount of Excess Proceeds that have not been applied in
A-105
accordance with Section 4.10 (Asset Sales) and 4.16 (Maintenance of Insurance)
or Section 3.09 (Offer to Purchase By Application of Excess Proceeds) of the
Indenture, exceeds $17.5 million, the Company will be required to offer to
purchase the maximum principal amount of Notes that may be purchased out of such
Excess Proceeds at an offer price in cash in an amount equal to 101% of the
principal amount thereof, together with accrued and unpaid interest thereon to
the date of purchase. To the extent the Company or a Restricted Subsidiary is
required under the terms of Indebtedness of the Company or such Restricted
Subsidiary which is PARI PASSU with, or (in the case of any secured
Indebtedness) senior with respect to such collateral to, the Notes with any
proceeds which constitute Excess Proceeds under the Indenture, the Company shall
make a pro rata offer to the holders of all other PARI PASSU Indebtedness
(including the Notes) with such proceeds. If the aggregate principal amount of
Notes and other PARI PASSU Indebtedness surrendered by holders thereof exceeds
the amount of such Excess Proceeds, the Trustee shall select the Notes and other
PARI PASSU Indebtedness to be purchased on a PRO RATA basis. Holders of Notes
that are subject to an offer to purchase will receive a Excess Proceeds Offer
from the Company prior to any related Purchase Payment Date and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
(g) NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes may be redeemed
in part but only in whole multiples of $1,000, unless all of the Notes held by a
Holder of Notes are to be redeemed. On and after the redemption date, interest
ceases to accrue on Notes or portions of them called for redemption unless the
Company fails to redeem such Notes or such portions thereof.
(h) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder of a Note,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Note or portion of a
Note selected for redemption. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed.
(i) PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee for
registration of the transfer of this Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Note is registered as
its absolute owner for the purpose of receiving payment of principal of,
premium, if any, and interest on this Note and for all other purposes
whatsoever, whether or not this Note is overdue, and neither the Trustee, any
Agent nor the Company shall be affected by notice to the contrary. The
registered Holder of a Note shall be treated as its owner for all purposes.
(j) AMENDMENTS, SUPPLEMENT AND WAIVERS. Subject to certain exceptions,
the Indenture or Notes may be amended or supplemented with the consent of the
Holders
A-106
of at least a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer
for the Notes), and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for the Notes).
Notwithstanding the foregoing, (a) Sections 3.09 (Offer to Purchase by
Application of Excess Proceeds), 4.10 (Asset Sales) and 4.15 (Offer to
Repurchase Upon Change in Control) of the Indenture (including, in each case,
the related definitions) may not be amended or waived without the written
consent of at least 66 2/3% in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Notes) and (b) without the consent of each Holder affected, an amendment
or waiver may not (with respect to any Notes held by a non-consenting Holder of
Notes) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver; reduce the principal of or change the fixed
maturity of any Note or alter the provisions with respect to the redemption of
the Notes; reduce the rate of or change the time for payment of interest on any
Note; waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes and a waiver of the payment default that resulted
from such acceleration); make any Note payable in money other than that stated
in the Notes; make any change in the provisions of the Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to rceive payments of
principal of or interest on the Notes; waive a redemption payment with respect
to any Note; or make any change in the foregoing amendment and waiver
provisions. Notwithstanding the foregoing, without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency; to provide for uncertificated Notes in
addition to or in place of certificated Notes; to provide for the assumption of
the Company's obligations to the Holders of the Notes in case of a merger or
consolidation; to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder; or to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
(k) DEFAULTS AND REMEDIES. Each of the following constitutes an Event of
Default:
(a) default for 30 days in the payment when due of interest on
the Notes;
(b) default in payment when due of principal of the Notes at
maturity, upon repurchase, redemption or otherwise;
(c) failure to comply with the provisions described under Section
4.15 (Offer to Purchase Upon Change in Control), Section 4.16
(Maintenance of Insurance), Section 4.11 (Limitation on Transactions
with Affiliates) or Section 4.10 (Asset Sales) of the Indenture;
A-107
(d) default under the provisions described under Section 4.07
(Limitation on Restricted Payments) or Section 4.09 (Incurrence of
Indebtedness) of the Indenture which default remains uncured for
30 days, or the breach of any representation or warranty, or the
making of any untrue statement, in any certificate delivered by the
Company pursuant to the Indenture;
(e) failure by the Company for 60 days after notice from the
Trustee or the holders of at least 25% in principal amount of the then
outstanding Notes to comply with any of its other agreements in the
Indenture or the Notes;
(f) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), which default is
caused by a failure to pay when due principal or interest on such
Indebtedness within the grace period provided in such Indebtedness (a
"Payment Default"), and the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default, aggregates $20 million
or more;
(g) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), which default
results in the acceleration of such Indebtedness prior to its express
maturity and the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $20 million or more; provided that any
acceleration (other than an acceleration which is the result of a
Payment Default under clause (f) above) of Indebtedness under the
Outstanding Deferred Payments in aggregate principal amount not to
exceed $50 million shall be deemed not to constitute an acceleration
pursuant to this clause (g);
(h) failure by the Company or any of its Restricted Subsidiaries
to pay final judgments (other than any judgment as to which a
reputable insurance company has accepted full liability) aggregating
in excess of $20 million, which judgments are not stayed within
60 days after their entry;
(i) certain events of bankruptcy or insolvency with respect to
EchoStar, the Company or certain of the Company's Subsidiaries
(including the filing of a voluntary case, the consent to an order of
relief in an involuntary case, the consent to the appointment of a
custodian, a general
A-108
assignment for the benefit of creditors or an order of a court for relief
in an involuntary case, appointing a custodian or ordering liquidation,
which order remains unstayed for 60 days); and
(j) any Guarantee of the Notes shall be held in a judicial
proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect, or any Guarantors, or any
Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Guarantee of any Notes.
If any Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately (plus, in the case of an
Event of Default that is the result of an action by the Company or any of its
Subsidiaries intended to avoid restrictions on or premiums related to
redemptions of the Notes contained in the Indenture or the Notes, an amount of
premium that would have been applicable pursuant to the Notes or as set forth in
the Indenture). Notwithstanding the foregoing, in the case of an Event of
Default arising from the events of bankruptcy or insolvency with respect to the
Company or any of its Subsidiaries described in (i) above, all outstanding Notes
will become due and payable without further action or notice. Holders of the
Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in such holders' interest.
The holders of a majority in aggregate principal amount of the then
outstanding Notes, by notice to the Trustee, may on behalf of the holders of all
of the Notes waive any existing Default or Event of Default and its consequences
under the Indenture, except a continuing Default or Event of Default in the
payment of interest or premium on, or principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default to deliver to the Trustee a
statement specifying such Default or Event of Default.
All powers of the Trustee under the Indenture will be subject to applicable
provisions of the Communications Act, including without limitation, the
requirements of prior approval for DE FACTO or DE JURE transfer of control or
assignment of Title III licenses.
(l) TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or
A-109
its Affiliates, as if it were not Trustee; however, if the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the SEC for permission to continue as Trustee or resign.
(m) NO PERSONAL LIABILITIES OF DIRECTORS, OFFICERS, EMPLOYEES,
INCORPORATORS AND STOCKHOLDERS. No director, officer, employee, incorporator or
stockholder of the Company or any of its Affiliates, as such, shall have any
liability for any obligations of the Company or any of its Affiliates under this
Note or the Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
(n) GUARANTEE. Payment of principal and interest (including interest on
overdue principal and overdue interest, if lawful) is unconditionally
guaranteed, jointly and severally, by each of the Guarantors.
(o) AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
(p) ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties, JT TEN ( = joint tenants with right of
survivorship and not as tenants in common), CUST (5 Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
(q) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders of Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture. Request may be made to:
EchoStar DBS Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
A-110
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
---------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
---------------------------
---------------------------
---------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
---------------------------
Date:
--------------
Your Signature:
-----------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee.
A-111
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by the
Company pursuant to Section 3.09 or Section 4.15 of the Indenture check the
appropriate box:
Section 3.09 Section 4.15
--- ---
If you want to have only part of the Note purchased by the Company pursuant
to Section 3.09 or Section 4.15 of the Indenture, state the amount you elect to
have purchased:
$
-------------------
Date:
--------------
Your Signature:
-----------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee.
A-112
[ATTACHMENT FOR GLOBAL NOTES]
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal ▇▇▇▇▇▇
▇▇▇▇▇▇ of decrease in Amount of Increase of this Global Note Signature of authorized
Principal Amount of Principal Amount of following such officer of Trustee or
Date of Exchange this Global Note the Global Note. decrease (or Increase) Note Custodian
---------------- ----------------- ---------------- ---------------------- --------------
A-113
EXHIBIT B
Guarantee
[Name of Guarantor] and its successors under the Indenture, jointly
and severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees (i) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal of
and interest, if any, on the Notes, to the extent lawful, and the due and
punctual performance of all other obligations of EchoStar DBS Corporation (the
"Company") to the Holders or the Trustee all in accordance with the terms set
forth in Article 10 of the Indenture, (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration or
otherwise and (iii) has agreed to pay any and all costs and expenses (including
reasonable attorneys' fees) incurred by the Trustee or any Holder in enforcing
any rights under this Guarantee. Capitalized terms used herein have the meanings
assigned to them in the Indenture unless otherwise indicated.
No stockholder, officer, director or incorporator, as such, past,
present or future, of [name of Guarantor] shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
officer, director or incorporator.
This Guarantee shall be binding upon [name of Guarantor] and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
[NAME OF ▇▇▇▇▇▇▇▇▇]
By:
------------------------------
Name:
B-114
Title:
B-115
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
EchoStar DBS Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 9 1/4% Senior Notes due 2006
----------------------------
Reference is hereby made to the Indenture, dated as of January 25, 1999
(the "INDENTURE"), between EchoStar DBS Corporation, as issuer (the "COMPANY"),
the Guarantors named therein and U.S. Bank Trust National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
________________ (the "TRANSFEROR") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $____ in such Note[s] or interests (the "TRANSFER"), to
__________ (the "TRANSFEREE"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. : CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. : CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is
C-116
EXHIBIT C
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. : CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) : such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) : or such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) : such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
4. : CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
C-117
EXHIBIT C
(a) : CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) : CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) : CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-------------------------------------
[Insert Name of Transferor]
By:
----------------------------------
Name:
Title:
C-118
EXHIBIT C
Dated:
--------------------
C-119
EXHIBIT C
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ___________), or
(ii) / / Regulation S Global Note (CUSIP ___________), or
(b) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ___________), or
(ii) / / Regulation S Global Note (CUSIP ___________),or
(iii) / / Unrestricted Global Note (CUSIP ___________), or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
C-120
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
EchoStar DBS Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Re: 9 1/4% Senior Notes due 2006
----------------------------
(CUSIP )
---------
Reference is hereby made to the Indenture, dated as of January 25, 1999
(collectively, the "INDENTURE"), between EchoStar DBS Corporation, as issuer
(the "COMPANY"), the Guarantors named therein and U.S. Bank Trust National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
_______________ (the "OWNER") owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $________
in such Note[s] or interests (the "EXCHANGE"). In connection with the Exchange,
the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the United
States Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without
D-121
EXHIBIT D
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
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EXHIBIT D
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] : 144A Global Note, : Regulation S Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
D-123
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
--------------------------------
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
Dated:
--------------------
By:
D-124
EXHIBIT D
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1. DEFINITIONS AND INCORPORATION
BY REFERENCE 1
SECTION 1.01. Definitions 1
SECTION 1.02. Other Definitions 18
Section 1.03. Incorporation by Reference of Trust Indenture Act 18
Section 1.04. Rules of Construction 19
ARTICLE 2. THE NOTES 19
SECTION 2.01. Form and Dating 19
SECTION 2.02. FORM OF EXECUTION AND AUTHENTICATION 21
SECTION 2.03. REGISTRAR AND PAYING AGENT 22
Section 2.04. Paying Agent to Hold Money in Trust 22
Section 2.05. Lists of Holders of the Notes 23
Section 2.06. Transfer and Exchange 23
Section 2.07. Replacement Notes 36
Section 2.08. Outstanding Notes 36
Section 2.09. Treasury Notes 36
SECTION 2.10. TEMPORARY NOTES. 37
SECTION 2.11. Cancellation 37
Section 2.12. Defaulted Interest 37
SECTION 2.13. RECORD DATE 38
SECTION 2.14. CUSIP NUMBER 38
ARTICLE 3. REDEMPTION 38
SECTION 3.01. NOTICES TO TRUSTEE 38
SECTION 3.02. Selection of Notes to be Redeemed 38
Section 3.03. Notice of Redemption 39
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION 39
SECTION 3.05. Deposit of Redemption Price 39
SECTION 3.06. Notes Redeemed in Part 40
SECTION 3.07. Optional Redemption 40
SECTION 3.08. Mandatory Redemption 41
SECTION 3.09. Offer to Purchase by Application of Excess
Proceeds 41
ARTICLE 4. COVENANTS 43
SECTION 4.01. Payment of Notes 43
D-125
EXHIBIT D
SECTION 4.02. Maintenance of Office or Agency 43
SECTION 4.03. Reports 44
SECTION 4.04. COMPLIANCE CERTIFICATE 44
SECTION 4.05. TAXES 45
SECTION 4.06. STAY, EXTENSION AND USURY LAWS 45
SECTION 4.07. LIMITATION ON RESTRICTED PAYMENTS 46
SECTION 4.08. LIMITATIONS CONCERNING DISTRIBUTIONS BY
SUBSIDIARIES, ETC 50
SECTION 4.09. INCURRENCE OF INDEBTEDNESS 51
SECTION 4.10. ASSET SALES 54
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES 56
SECTION 4.12. LIMITATION ON LIENS 57
SECTION 4.13. ADDITIONAL SUBSIDIARY GUARANTEES 57
SECTION 4.14. CORPORATE EXISTENCE 58
SECTION 4.15. OFFER TO PURCHASE UPON CHANGE IN CONTROL 58
SECTION 4.16. MAINTENANCE OF INSURANCE 59
SECTION 4.17. ACTIVITIES OF THE COMPANY 60
SECTION 4.18. THE 110 ACQUISITION 60
SECTION 4.19. ECHOSTAR EQUITY CONTRIBUTION 60
SECTION 4.20. ACCOUNTS RECEIVABLE SUBSIDIARY. 60
SECTION 4.21. DISPOSITIONS OF ETC AND NON-CORE ASSETS 62
SECTION 4.22. PAYMENTS FOR CONSENT 65
ARTICLE 5. SUCCESSORS 65
Section 5.01. Merger, Consolidation, or Sale of Assets 65
Section 5.02. Successor Corporation Substituted 66
ARTICLE 6. DEFAULTS AND REMEDIES 66
Section 6.01. Events of Default 66
Section 6.02. Acceleration 68
Section 6.03. Other Remedies 68
Section 6.04. Waiver of Past Defaults 69
Section 6.05. Control by Majority 69
Section 6.06. Limitation on Suits 69
Section 6.07. Rights of Holders of Notes to Receive Payment 70
Section 6.08. Collection Suit by Trustee 70
Section 6.09. Trustee May file Proofs of Claim 70
Section 6.10. Priorities 71
Section 6.11. Undertaking for Costs 71
ARTICLE 7. TRUSTEE 72
Section 7.01. Duties of Trustee 72
Section 7.02. Rights of Trustee 73
Section 7.03. Individual Rights of Trustee 74
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EXHIBIT D
Section 7.04. Trustee's Disclaimer 74
Section 7.05. Notice of Defaults 74
Section 7.06. Reports by Trustee to Holders of the Notes 74
Section 7.07. Compensation and Indemnity 75
Section 7.08. Replacement of Trustee 75
Section 7.09. Successor Trustee by ▇▇▇▇▇▇, Etc 76
Section 7.10. Eligibility; Disqualification 77
Section 7.11. Preferential Collection of Claims Against
Company 77
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE 77
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance 77
Section 8.02. Legal Defeasance and Discharge 77
Section 8.03. Covenant Defeasance 78
Section 8.04. Conditions to Legal or Covenant Defeasance 78
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions 80
Section 8.06. Repayment to Company 80
Section 8.07. Reinstatement 81
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER 81
Section 9.01. Without Consent of Holders of Notes 81
Section 9.02. With Consent of Holders of Notes 82
Section 9.03. Compliance with Trust Indenture Act 83
Section 9.04. Revocation and Effect of Consents 83
Section 9.05. Notation on or Exchange of Notes 84
Section 9.06. Trustee to Sign Amendments, Etc 84
ARTICLE 10. GUARANTEES 84
Section 10.01. Guarantee 84
Section 10.02. Execution and Delivery of Guarantees 86
Section 10.03. Guarantors May Consolidate, Etc., on Certain
Terms 86
Section 10.04. Releases from Guarantees 87
ARTICLE 11. MISCELLANEOUS 88
Section 11.01. Trust Indenture Act Controls 88
Section 11.02. Notices 88
Section 11.03. Communication by Holders of Notes with Other
Holders of Notes89
Section 11.04. Certificate and Opinion as to Conditions
Precedent 89
Section 11.05. Statements Required in Certificate or Opinion 89
Section 11.06. Rules by Trustee and Agents 90
Section 11.07. No Personal Liability of Directors, Officers,
Employees, Incorporators and Stockholders 90
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EXHIBIT D
Section 11.08. Governing Law 90
Section 11.09. No Adverse Interpretation of Other Agreements 90
Section 11.10. Successors 90
Section 11.11. Severability 90
Section 11.12. Counterpart Originals 91
Section 11.13. Table of Contents, Headings, Etc 91
D-128
EXHIBITS
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF GUARANTEE
EXHIBIT C FORM OF CERTIFICATE OF TRANSFER
EXHIBIT D FORM OF CERTIFICATE OF EXCHANGE
D-129