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INTEREST ESCROW AGREEMENT
Among
FIRST TRUST NATIONAL ASSOCIATION
(as "Escrow Agent" and "Trustee")
and
ECHOSTAR DBS CORPORATION
("Company")
June 25, 1997
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INTEREST ESCROW AGREEMENT
This INTEREST ESCROW AGREEMENT ("AGREEMENT"), dated as of June 25,
1997, by and among FIRST TRUST NATIONAL ASSOCIATION, as escrow agent ("ESCROW
AGENT") and as trustee for the benefit of the holders of the Notes (as
defined below) under the Indenture (as defined below) (the "TRUSTEE"), and
ECHOSTAR DBS CORPORATION, a Colorado corporation (the "COMPANY").
RECITALS
A. Pursuant to that certain Indenture dated as of June 25, 1997, by and
among the Company, EchoStar Communications Corporation, EchoStar Satellite
Broadcasting Corporation, Dish, Ltd. and the Trustee (the "INDENTURE"), the
Company has issued $375,000,000 aggregate principal amount of its 12 1/2% Senior
Secured Notes due 2002 ("NOTES").
B. As security for its obligation to repay the Notes, the Company has
executed and delivered to the Trustee, in addition to the Indenture, (i) a
Security Agreement, in which the Company grants to the Trustee a security
interest in (x) the Interest Escrow Account (as defined herein) established
hereby and (y) the escrow account established by the Satellite Escrow Agreement
dated as of the date hereof; and (ii) certain other collateral-related
documents.
C. As security for the Company's obligation to repay the Notes, EchoStar
Communications Corporation ("ECHOSTAR") has executed and delivered to the
Trustee a Pledge Agreement in which EchoStar grants to the Trustee a pledge of
all of EchoStar's right, title and interest in and to all of the issued and
outstanding capital stock of the Company.
D. The parties have entered into this Agreement to set forth the
conditions upon which, and the manner in which, funds will be disbursed from the
Interest Escrow Account and released from the security interest and lien
described in SECTION 6(a) of this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. Capitalized terms used herein but not defined shall
have the meaning given in the Indenture. In addition to any other defined terms
used herein, the following terms shall constitute defined terms for purposes of
this Agreement and shall have the meanings set forth below:
"ACCEPTABLE REPLACEMENT ESCROW AGENT" means 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,
subject to supervision or examination by federal or state authority and having a
combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition.
"AFFILIATES" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"AVAILABLE FUNDS" means (A) the sum of (i) the Initial Escrow Amount
and (ii) interest earned or dividends paid on the funds in the Interest Escrow
Account (including holdings of Marketable Securities), less (B) the aggregate
disbursements previously made pursuant to this Agreement.
"COLLATERAL" shall have the meaning given in SECTION 6(a) hereof.
"ESCROW AGENT" has the meaning set forth in the preamble to this
Agreement.
"ESCROW ACCOUNT STATEMENT" shall have the meaning given in SECTION
2(g).
"INITIAL ESCROW AMOUNT" means $109.0 million.
"INTEREST ESCROW ACCOUNT" means the escrow account established
pursuant to SECTION 2.
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"INTEREST PAYMENT DATE" means July 1 and January 1 of each year
commencing on January 1, 1998 until the Notes are paid in full (or if any such
day is not a Business Day the next succeeding Business Day).
"ISSUE DATE" means June 25, 1997.
"PAYMENT NOTICE AND DISBURSEMENT REQUEST" means a notice sent by the
Trustee to the Escrow Agent requesting a disbursement of funds from the Interest
Escrow Account, in substantially the form of EXHIBIT A hereto. Each Payment
Notice and Disbursement Request shall be signed by an officer of the Trustee.
2. INTEREST ESCROW ACCOUNT, ESCROW AGENT.
(a) APPOINTMENT OF ESCROW AGENT. The Trustee and the Company hereby
appoint Escrow Agent, and Escrow Agent hereby accepts appointment, as escrow
agent under the terms and conditions of this Agreement. The term "Escrow Agent"
shall be deemed to include the successor to First Trust National Association.
(b) ESTABLISHMENT OF INTEREST ESCROW ACCOUNT. Concurrently with the
execution and delivery hereof, Escrow Agent shall establish the Interest Escrow
Account at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. Subject
to the security interest granted therein for the benefit of the Trustee, and
subject to the other terms and conditions of this Agreement, all funds accepted
by Escrow Agent pursuant to this Agreement shall be held for the exclusive
benefit of the Trustee, for the ratable benefit of the holders of the Notes.
All such funds shall be held in the Interest Escrow Account until disbursed in
accordance with the terms hereof. The Interest Escrow Account, the funds held
therein and any Marketable Securities held by the Escrow Agent shall be deemed
to be under the sole dominion and control of Escrow Agent for the benefit of the
Trustee for the ratable benefit of the holders of the Notes, and all such funds
shall be held by the Escrow Agent separate and apart from all other funds of or
held by the Escrow Agent. Concurrently with the execution and delivery hereof,
the Company shall deliver the Initial Escrow Amount to the Escrow Agent for
deposit into the Interest Escrow Account against the Escrow Agent's written
acknowledgment and receipt of the Initial Escrow Amount.
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(c) ESCROW AGENT COMPENSATION.
(i) Escrow Agent and any Acceptable Replacement Escrow
Agent shall be compensated pursuant to a separate agreement between the Company
and Escrow Agent or such Acceptable Replacement Escrow Agent.
(ii) Escrow Agent shall be entitled to disburse from the
Interest Escrow Account all amounts due to Escrow Agent as compensation for
services to be performed by Escrow Agent under this Agreement (as determined by
agreement with the Company or pursuant to Section 2(c)(ii)). The final payment
pursuant to this Section 2(c)(ii) shall be prorated if for a partial month.
(d) INVESTMENT OF FUNDS IN INTEREST ESCROW ACCOUNT. Funds deposited in
the Interest Escrow Account shall be invested and reinvested upon the following
terms and conditions:
(i) ACCEPTABLE INVESTMENTS. Funds deposited in the Interest Escrow
Account shall initially be invested in a manner such that the Company
reasonably determines at such time that there will be sufficient funds
available without any further investment by the Company (other than the
reinvestment of funds as Marketable Securities mature and other than
amounts which the Company shall from time to time segregate from the
proceeds of the sale of the Notes for deposit into the Interest Escrow
Account to provide for the payment of interest on the outstanding Notes on
each Interest Payment Date beginning on and including January 1, 1998 and
through and including the Interest Payment Date on January 1, 2000) to
cover all interest due on the outstanding Notes, as such interest becomes
due, for each Interest Payment Date occurring from the Issue Date and
ending on (and including) January 1, 2000. The Escrow Agent shall have no
responsibility for determining whether funds held in the Interest Escrow
Account shall have been invested in such a manner so as to comply with the
requirements of this clause (i).
(ii) SECURITY INTEREST IN INVESTMENTS. No investment of funds in
the Interest Escrow Account shall be made unless the Company has
certified to Escrow Agent upon advice of legal counsel that, upon
such investment, the Trustee will have a first perfected security
interest in the applicable
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investment (such advice of legal counsel relating solely to the
manner of perfecting a security interest in a particular type of
investment, but not to whether such perfection has been achieved in
the instance). A certificate as to a class of investments need not
be issued with respect to individual investments in securities in
that class if the certificate applicable to the class remains
accurate with respect to such individual investments, which continued
accuracy the Escrow Agent may conclusively assume. When and if the
Indenture is qualified under the Trust Indenture Act of 1939, as
amended (the "TIA"), on such date and on each anniversary of such
date until the date upon which the balance of the Available Funds
shall have been reduced to zero, each of the Trustee and the Escrow
Agent shall receive an opinion of counsel to the Company, dated each
such date as applicable, which opinion shall meet the requirements of
Section 314(b) of the TIA.
(iii) INTEREST AND DIVIDENDS. All interest earned and
dividends paid on funds invested in such Marketable Securities shall
be deposited in the Interest Escrow Account for the exclusive benefit
of the Trustee for the ratable benefit of the holders of the Notes
and shall be reinvested in accordance with the terms hereof at the
Company's written instruction and subject to disbursement as provided
herein.
(e) LIMITATION ON ESCROW AGENT'S RESPONSIBILITIES.
(i) Escrow Agent's duties and responsibilities shall be limited to
those expressly set forth in this Agreement and are purely ministerial in
nature. Escrow Agent shall not be subject to, or obligated to recognize,
any other agreement to which the Company, the Trustee, or either of them
may be a party. References in this Agreement to any such agreement are for
identification and definitional purposes only.
(ii) Escrow Agent shall have no obligation with respect to the
Interest Escrow Account other than to follow faithfully instructions
contained in this Agreement or delivered to Escrow Agent in accordance with
this Agreement. Escrow Agent may rely and act upon any written notice,
instruction, direction, request, waiver, consent, receipt, or other paper
or document ("INSTRUCTIONS") which it believes in good faith to be genuine
and what it purports to be. Escrow Agent shall be subject to no liability
with respect to
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the form, execution, or validity of any such Instruction. The Escrow Agent
shall not be liable for verifying the accuracy of any certifications made
by the Company in any Payment Notice and Disbursement Request.
(iii) Escrow Agent shall not be liable for any error of judgment,
or for any act done or step taken or omitted by it in good faith, or for
any mistake of fact or law, or for doing anything which, in good faith, it
may do or refrain from doing in connection with the Interest Escrow
Account, except in each case in the event of Escrow Agent's gross
negligence or wilful misconduct.
(f) SUBSTITUTION OF ESCROW AGENT.
(i) The Company shall have the right to cause Escrow Agent
to be relieved of its duties hereunder and to select a substitute escrow agent
to serve hereunder (provided such substitute escrow agent is an Acceptable
Replacement Escrow Agent), upon the expiration of thirty (30) days following
delivery of written notice of substitution to Escrow Agent and the Trustee.
Upon selection of such substitute escrow agent, such substitute escrow agent and
the parties hereto other than the substituted escrow agent shall enter into an
agreement substantially identical to this Agreement and, thereafter, Escrow
Agent shall be relieved of its duties and obligations to perform hereunder,
except that Escrow Agent shall transfer to the substitute escrow agent upon
request therefor all funds and Marketable Securities maintained by Escrow Agent
hereunder and copies of all books, records, plans and other documents in Escrow
Agent's possession relating to such funds or Marketable Securities or this
Agreement.
(ii) Escrow Agent, or any substitute escrow agent, may at
any time resign and be discharged of its duties and obligations under this
Agreement by giving at least thirty days' notice to the Company and the Trustee.
The Company shall appoint an Acceptable Replacement Escrow Agent or substitute
escrow agent within such thirty day period.
(iii) If the Company fails to appoint a substitute escrow
agent as required under paragraph (ii) above, Escrow Agent shall deliver all
assets held in the Escrow Account to an Acceptable Replacement Escrow Agent of
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either its choosing or as appointed by a court upon application therefor.
(iv) Escrow Agent shall be discharged from any further
duties under this Agreement upon its transfer of the assets held in the Escrow
Account to an Acceptable Replacement Escrow Agent.
(g) INTEREST ESCROW ACCOUNT STATEMENT. At least 30 days prior to each
Interest Payment Date, the Escrow Agent shall deliver to the Company and the
Trustee a statement setting forth with reasonable particularity the
Collateral then held by the Escrow Agent, and the manner in which such funds
are invested (the "ESCROW ACCOUNT STATEMENT"). The books and records of the
Escrow Agent with respect to the Interest Escrow Account shall be open to
inspection and audit at reasonable times during reasonable business hours by
the Trustee and the Company or their respective representatives. The parties
hereto irrevocably instruct Escrow Agent that on the first date upon which
the balance in the Interest Escrow Account (including the holdings of all
Marketable Securities) is reduced to zero, Escrow Agent shall deliver to the
Company and to the Trustee a notice that the balance in the Interest Escrow
Account has been reduced to zero.
(h) OTHER POWERS OF ESCROW AGENT.
(i) Escrow Agent may register any investments held by the
Interest Escrow Account in its nominee name without increase or decrease of
liability.
(ii) Escrow Agent may consult with and obtain advice from legal
counsel in the event of any dispute or question as to the construction of any
of the provisions of this Agreement or any of Escrow Agent's duties under
this Agreement, and Escrow Agent shall incur no liability in acting in good
faith in accordance with the advice of such counsel. The fees for
consultation with such counsel shall be a proper expense chargeable to the
Interest Escrow Account without a Payment Notice and Disbursement Request,
provided that Escrow Agent provides the Company with prior written notice of
any such charge.
(i) INCUMBENCY CERTIFICATE. The Company and the Trustee each shall
provide a certificate to Escrow Agent as to the incumbency and signatures of
those individuals authorized to provide from time to time instructions
relating to the Interest Escrow Account or to execute
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documents to be provided to Escrow Agent. The Company and the Trustee also
shall promptly notify Escrow Agent of any changes to such a certificate.
Escrow Agent may rely on the accuracy and completeness of any such
certificate unless and until it has received an acceptable replacement
certificate. All certificates provided under this Section 2(i) shall be
executed by the applicable party's corporate secretary or assistant secretary
or, if the party does not have a corporate secretary or assistant secretary,
by a comparable officer.
3. DISBURSEMENTS.
(a) DISBURSEMENTS. At least three (3) Business Days prior to an Interest
Payment Date, the Trustee shall submit to the Escrow Agent a completed Payment
Notice and Disbursement Request substantially in the form of EXHIBIT A hereto
and the Escrow Agent shall, upon such Interest Payment Date for which the
completed Payment Notice and Disbursement Request was submitted, disburse the
funds requested to the Holders of the Notes. The Escrow Agent shall notify the
Trustee and the Company as soon as reasonably possible (but not later than two
(2) Business Days from the date of receipt of the Payment Notice and
Disbursement Request) if any Payment Notice and Disbursement Request is rejected
and the reason(s) therefor.
(b) RETIRED NOTES. In the event a portion of the Notes has been retired
by the Company and submitted to the Trustee for cancellation and there is no
Default or Event of Default under the Indenture, funds representing the lesser
of (A) the excess of the amount sufficient to pay interest through and including
January 1, 2000 on the Notes not so retired and (B) the interest payments which
have not previously been made on such retired Notes for each Interest Payment
Date through the Interest Payment Date to occur on January 1, 2000 shall, upon
written request of the Trustee to the Escrow Agent, be paid to the Company. The
Trustee shall provide such notice to the Escrow Agent (i) upon receipt of notice
of similar effect from the Company and (ii) upon compliance with the release of
collateral provisions of the TIA to the extent applicable.
(c) EXCESS AMOUNTS. At such time as all interest due on the Notes
through and including January 1, 2000 has been paid to the Holders thereof
pursuant to the Indenture and in accordance herewith, the Escrow Agent shall
disburse all remaining funds in the Interest Escrow Account to the Company.
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4. ESCROW AGENT. The Escrow Agent's responsibility and liability under
this Agreement shall be limited as follows: (i) the Escrow Agent does not
represent, warrant or guaranty to the holders of the Notes from time to time the
performance of the Company or the Trustee; (ii) the Escrow Agent shall have no
responsibility to the Company or the holders of the Notes or the Trustee from
time to time as a consequence of performance or nonperformance by the Escrow
Agent hereunder, except for any gross negligence or wilful misconduct of the
Escrow Agent; (iii) the Company shall remain solely responsible for all aspects
of the Company's business and conduct; and (iv) the Escrow Agent is not
obligated to supervise, inspect or inform the Company or any third party of any
matter referred to above.
No implied covenants or obligations shall be inferred from this Agreement
against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions
of any agreement beyond the specific terms hereof. Specifically and without
limiting the foregoing, the Escrow Agent shall in no event have any liability in
connection with its investment, reinvestment or liquidation, in good faith and
in accordance with the terms hereof, of any funds or Marketable Securities held
by it hereunder, including, without limitation any liability for any delay not
resulting from gross negligence or wilful misconduct in such investment,
reinvestment or liquidation, or for any loss of principal or income incident to
any such delay.
The Escrow Agent shall be entitled to rely upon any judicial order or
judgment, upon any written opinion of counsel or upon any certification,
instruction, notice, or other writing delivered to it by the Company or the
Trustee in compliance with the provisions of this Agreement without being
required to determine the authenticity or the correctness of any fact stated
therein or the propriety or validity of service thereof. The Escrow Agent may
act in reliance upon any instrument comporting with the provisions of this
Agreement or signature believed by it to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
The Escrow Agent may act pursuant to the written advice of counsel chosen
by it with respect to any matter relating to this Agreement and (subject to
SECTION 4(a)(ii)) shall not be liable for any action taken or omitted in
accordance with such advice.
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The Escrow Agent shall not be called upon to advise any party as to
selling to retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
In the event of any ambiguity in the provisions of this Agreement with
respect to any funds or property deposited hereunder, the Escrow Agent shall be
entitled to refuse to comply with any and all claims, demands or instructions
with respect to such funds or property, and the Escrow Agent shall not be or
become liable for its failure or refusal to comply with conflicting claims,
demands or instructions. The Escrow Agent shall be entitled to refuse to act
until either any conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting claimants as evidenced in a writing, satisfactory to the
Escrow Agent, or the Escrow Agent shall have received security or an indemnity
satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless
from and against any and all loss, liability or expense which the Escrow Agent
may incur by reason of its acting. The Escrow Agent may in addition elect in
its sole option to commence an interpleader action or seek other judicial relief
or orders as the Escrow Agent may deem necessary.
No provision of this Agreement shall require the Escrow Agent to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder.
5. INDEMNITY. The Company shall indemnify, hold harmless and defend
Escrow Agent and the Trustee, and their respective directors, officers, agents
and employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including defense costs, investigative fees and costs,
legal fees, and claims for damages, arising from Escrow Agent's and the
Trustee's respective performance under this Agreement, except to the extent that
such liability, expense or claim is directly attributable to the gross
negligence or wilful misconduct of such indemnified person. In connection with
any claim, action, obligation, liability or expense for which indemnification is
sought by the Escrow Agent hereunder, the Escrow Agent shall be entitled to
recover its costs as incurred from funds available in the Interest Escrow
Account.
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6. GRANT OF SECURITY INTEREST; INSTRUCTIONS TO ESCROW AGENT.
(a) The Company hereby irrevocably grants a first priority security
interest in, pledges, assigns and sets over to the Trustee all of its right,
title and interest in the Interest Escrow Account, all funds held therein and
all Marketable Securities and replacements thereof and proceeds therefrom held
by Escrow Agent pursuant to Section 2, as well as all rights of the Company
under this Agreement (collectively, the "COLLATERAL"), to secure all obligations
and indebtedness of the Company under the Notes and any other obligation now or
hereafter arising, of every kind and nature, owed by the Company under the
Indenture to the Holders of the Notes or the Trustee.
(b) The Company and the Trustee hereby irrevocably instruct the Escrow
Agent to: (i) maintain all of the Collateral free and clear of all liens,
security interests, safekeeping or other charges, demands and claims against
Escrow Agent of any nature whatsoever now or hereafter existing, in favor of
anyone other than the Trustee; (ii) promptly notify the Trustee if Escrow Agent
becomes aware that any person other than the Trustee has a lien or security
interest upon any portion of the Collateral (other than any claim which Escrow
Agent may have against the Interest Escrow Account for unpaid fees and
expenses); and (iii) immediately disburse all funds held in the Interest Escrow
Account to the Trustee and transfer title to all Marketable Securities held by
Escrow Agent hereunder to the Trustee upon written notice by the Trustee to
Escrow Agent that as a result of an Event of Default under the Indenture, the
indebtedness represented by the Notes has been accelerated and has become due
and payable.
(c) Any money and Marketable Securities collected by the Trustee pursuant
to SECTION 6(b)(iii) shall be applied as provided in Section 6.10 of the
Indenture.
(d) Upon demand, the Company will execute and deliver to the Trustee such
instruments and documents as the Trustee may reasonably deem necessary or
advisable to confirm or perfect the rights of the Trustee under this Agreement
and the Trustee's interest in the Collateral. The Trustee will take all
necessary action within its power to preserve and protect the security interest
created hereby as a lien and encumbrance upon the Collateral.
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(e) The Company hereby appoints the Trustee as its attorney-in-fact with
full power of substitution to do any act which the Company is obligated hereto
to do, except that the Trustee shall not direct the investment of any monies on
deposit in the Interest Escrow Account, and the Trustee may exercise such rights
as the Company might exercise with respect to the Collateral and take any action
in the Company's name to protect the Trustee's security interest hereunder.
7. TERMINATION. This Agreement shall terminate automatically ten (10)
days following disbursement of all funds remaining in the Interest Escrow
Account (including the proceeds of any Marketable Securities), unless sooner
terminated by agreement of the parties hereto (in accordance with the terms
hereof, not in violation of the Indenture), provided, however, that the
obligations of the Company under SECTION 5 of this Agreement shall survive
termination of this Agreement or the resignation or removal of the Escrow Agent;
provided, further, however, that until such tenth day, the Company will cause
this Agreement (or any permitted successor agreement) to remain in effect and
will cause there to be an escrow agent (including any permitted successor
thereto) acting hereunder (or under any such permitted successor agreement).
8. MISCELLANEOUS.
(a) WAIVER. Any party hereto may specifically waive any breach of this
Agreement by any other party, but no such waiver shall be deemed to have been
given unless such waiver is in writing, signed by the waiving party and
specifically designating the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
(b) INVALIDITY. If, for any reason whatsoever, any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
(c) ASSIGNMENT. This Agreement is personal to the parties hereto, and
the rights and duties of any party hereunder shall not be assignable except
with the prior
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written consent of the other parties. In any event, this Agreement shall
inure to and be binding upon the parties and their successors and permitted
assigns.
(d) BENEFIT. The parties hereto, the holders of the Notes and their
permitted assigns, but no others, shall be bound hereby and entitled to the
benefits hereof.
(e) TIME. Time is of the essence in each provision of this Agreement of
which time is an element.
(f) CHOICE OF LAW. The existence, validity, construction, operation and
effect of any and all terms and provisions of this Agreement shall be determined
in accordance with and governed by the laws of the State of New York, without
giving effect to conflict of law principles thereof.
(g) ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any and all prior agreements, understandings and commitments, whether
oral or written. This Agreement may be amended only by a writing signed by duly
authorized representatives of all parties.
(h) NOTICES. All notices and other communications required or permitted
to be given or made under this Agreement shall be in writing and shall be deemed
to have been duly given and received, regardless of when and whether received,
either: (a) on the day of hand delivery; or (b) three business days following
the day sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as follows:
To Escrow Agent:
First Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
To the Trustee:
First Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
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To the Company:
EchoStar DBS Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
or at such other address as the specified entity most recently may have
designated in writing in accordance with this section to the others.
(i) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(j) CAPTIONS. Captions in this Agreement are for convenience only and
shall not be considered or referred to in resolving questions of interpretation
of this Agreement.
(k) AUTHORITY OF THE COMPANY; VALID AND BINDING AGREEMENT. The Company
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered on its behalf and constitutes the legal, valid and
binding obligation of the Company. The execution, delivery and performance of
this Agreement by the Company does not violate any applicable law or regulation
to which the Company is subject and does not require the consent of any
governmental or other regulatory body to which the Company is subject, except
for such consents and approvals as have been obtained and are in full force and
effect.
(l) AUTHORITY OF THE ESCROW AGENT AND THE TRUSTEE; VALID AND BINDING
AGREEMENT. Each of the Escrow Agent and the Trustee hereby represents and
warrants and this Agreement has been duly authorized, executed and delivered on
its behalf and constitutes its legal, valid and binding obligation.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Interest Escrow Agreement as of the date first above written.
ESCROW AGENT: FIRST TRUST NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Trust Officer
TRUSTEE: FIRST TRUST NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Trust Officer
COMPANY: ECHOSTAR DBS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
and General Counsel
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Exhibit A
FORM OF PAYMENT NOTICE AND DISBURSEMENT REQUEST
[Letterhead of the Trustee]
[Date]
First Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
[indicate whether revised]
Ladies and Gentlemen:
We refer to the Interest Escrow Agreement ("ESCROW AGREEMENT") dated
as of June 25, 1997 by and among First Trust National Association, as Trustee
and Escrow Agent, and EchoStar DBS Corporation, a Colorado corporation (the
"COMPANY"). Unless otherwise specified, capitalized terms used herein shall
have the meaning given in the Escrow Agreement.
This letter constitutes a Payment Notice and Disbursement Request
under the Escrow Agreement.
[Choose one of the following, as applicable]
[The undersigned hereby notifies you that a scheduled interest
payment in the amount of $_________ will become due on ___________, 199_ and
requests a disbursement of funds contained in the Interest Escrow Account in
such amount to the Holders of the Notes pursuant to Section 3(a) of the Escrow
Agreement.]
[The undersigned hereby notifies you that Notes equaling $_________
in aggregate principal amount have been retired and authorizes you to release
$________ of funds in the Interest Escrow Account to the Company (to an account
designated by the Company in writing), which amount represents the amount
permitted to be released in accordance with Section 3(c) of the Escrow
Agreement.]
[The undersigned hereby notifies you that all amounts due on the
Notes up to and through January 1, 2000 have been paid from the Interest Escrow
Account in
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accordance with the Indenture (as defined in the Escrow Agreement) and
authorizes you to release to the Company all remaining funds contained in the
Interest Escrow Account.]
[In accordance with Section 6(b)(iii) of the Escrow Agreement, the
undersigned hereby notifies you that there has been an acceleration of the
maturity of the Notes. Accordingly, you are hereby requested to disburse all
remaining funds contained in the Interest Escrow Account to the Trustee such
that the balance in the Interest Escrow Account is reduced to zero.]
In connection with the requested disbursement, the undersigned hereby
notifies you that:
1. [The Notes have not, as a result of an Event of Default (as
defined in the Indenture), been accelerated and become due and payable.]
2. All prior disbursements to the Trustee from the Interest Escrow
Account have been applied.
3. [Add wire instructions for payment to Trustee.]
The Escrow Agent is entitled to rely on the foregoing in disbursing
funds relating to this Payment Notice and Disbursement Request.
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
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Name:
Title:
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