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Exhibit 10.16
Exchange Agency Agreement
November 24, 1998
State Street Bank and Trust Company
of Missouri, N.A.
Corporate Trust Department
211 North Broadway, Suite 3900
St. Louis, MO 63102
Ladies and Gentlemen:
Golden Sky Systems, Inc., a Delaware Corporation (the "Company") is offering to
exchange (the "Exchange Offer"), upon the terms and subject to the conditions
set forth in the Prospectus dated (the "Prospectus"), and the
accompanying Letter of Transmittal and instructions thereto (the "Letter of
Transmittal"), its 12 3/8% Senior Subordinated Notes Due 2006 (the "New Notes")
for all of its outstanding Senior Subordinated Notes Due 2006 (the "Old Notes")
of the Company of which $195,000,000 principal amount is outstanding. The New
Notes and the Old Note are together referred to herein as the "Notes".
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Prospectus or Letter of Transmittal.
You are hereby appointed and authorized to act as agent (the "Exchange Agent")
to effectuate the exchange of Old Notes for New Notes, on the terms and subject
to the conditions of this agreement (the "Agreement"). In that connection, the
following documents have been delivered to you:
(i) Prospectus;
(ii) the Letter of Transmittal accompanying the Prospectus, to be
used by the holders of Old Notes ("Old Noteholders") in
tendering their Old Notes; and
(iii) the Notice of Guaranteed Delivery to be used by Old
Noteholders whose Old Notes are not immediately available or
who cannot deliver their Old Notes, the Letter of Transmittal
or any other required documents to you prior to the expiration
of the Exchange Offer.
The Exchange Offer will expire at the time and on the date specified in the
Prospectus (the "Expiration Date") unless the Exchange Offer is extended by the
Company, in which case the term "Expiration Date" shall mean the latest date to
which the Exchange Offer is extended.
You are hereby requested, and you hereby agree, to act as follows:
1. You are to accept Old Notes which are accompanied by the appropriate
Letter of Transmittal or facsimile thereof, properly completed and duly
executed in accordance with
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the instructions thereon and any requisite collateral documents (or, in
the case of Old Notes tendered by book-entry transfer, an Agent's
Message in lieu of the Letter of Transmittal, and all other instruments
and communications submitted to you in connection with the Exchange
Offer and to hold the same upon the terms and conditions set forth in
this Agreement.
2. You are to examine the Letters of Transmittal, or Agent's Message in
lieu thereof, Old Notes and other documents delivered or mailed to you
by or for Old Noteholders to ascertain whether (i) the Letters of
Transmittal are properly completed and duly executed in accordance with
the instructions set forth therein, (ii) the other documents are
properly completed and duly executed, and (iii) the Old Notes have
otherwise been properly tendered. You need not pass on the legal
sufficiency of any signature or verify any signature guarantee.
3. In the event any Letter of Transmittal or other document has been
improperly executed or completed or any of the certificates are not in
proper form or have been improperly tendered or any book-entry delivery
of Old Notes has been improperly made, or if some other irregularity in
connection with the delivery of Old Notes by a holder thereof exists,
you are authorized, upon consultation with the Company or one of its
representatives, to request from any person tendering Old Notes such
additional documents or undertakings as you may deem appropriate. All
questions as to the form of all documents and the validity, eligibility
(including time of receipt) and acceptance of tendered Old Notes will
be determined by the Company, in its sole discretion, whose
determination will be final and binding. The Company reserves the
absolute right to reject any or all tenders of any particular Old
Notes, which would, in the opinion of the Company's counsel, be
unlawful. The Company also reserves the absolute right to waive any of
the conditions of the Exchange Offer or any defect or irregularity in
the tender of any Old Notes, and the Company's interpretation of the
terms and conditions of the Exchange Offer (including the Letter of
Transmittal and the instructions set forth therein) will be final. No
tender of Old Notes will be deemed to have been properly made until all
defects and irregularities have been cured or waived.
4. Tenders of Old Notes may be made only as set forth in the Prospectus
and Letter of Transmittal, and Old Notes shall be considered properly
tendered to you only when:
(a) a properly completed and duly executed Letter of Transmittal,
with any required signature guarantee and any other required
documents as set forth in the Letter of Transmittal, is
received by you at your address set forth in the Prospectus
and Letter of Transmittal, and Old Notes are received by you
at such addresses or a timely confirmation of a book-entry
transfer of such Old Notes, along with an Agent's Message is
received by you at or prior to the Expiration Date at your
address set forth in the Prospectus and Letter of Transmittal;
or a properly completed and duly executed Notice of Guaranteed
Delivery substantially in the form provided by the Company,
with an appropriate guarantee of signature and delivery from
an Eligible Institution, is received by you at or prior to the
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Expiration Date and Old Notes (in respect of which there have
been delivered to you prior to the Expiration Date a properly
completed and duly executed Notice of Guaranteed Delivery) in
proper form for transfer together with a properly completed
and duly executed Letter of Transmittal (or facsimile thereof)
or Agent's Message, and any other required documents as set
forth in the Letter of Transmittal, are received by you within
five New York Stock Exchange trading days, and
(b) the adequacy of the items relating to Old Notes, the Letter of
Transmittal therefor and any Notice of Guaranteed Delivery has
been favorably passed upon as above provided.
Notwithstanding the provisions of the preceding paragraph, Old Notes which the
Company shall approve as having been properly tendered shall be considered to be
properly tendered.
5. Holders of Old Notes may make book-entry delivery of their securities.
You will establish in your name or the name of your nominee an account
with respect to the Old Notes at Depository Trust Company ("DTC") for
purpose of the Exchange Offer to permit book-entry transfers. Except as
otherwise provided below, Old Notes, or any book-entry transfer into
your account at DTC of Old Notes tendered electronically, as well as a
properly completed and duly executed copy of the Letter of Transmittal
or Agent's Message, and any other documents required by the Letter of
Transmittal, must be received by you or, in the case of tenders of
book-entry, confirmed to you by transfer to your account on or prior to
the Expiration Date.
6. a. A tendering Old Noteholder may withdraw tendered Old Notes in
accordance with the procedures set forth in the Prospectus and
Letter of Transmittal, in which event, except as may be
otherwise specified in the Old Noteholder's notice of
withdrawal, all items in your possession which shall have been
received from the Old Noteholder with respect to those Old
Notes shall be promptly returned to or upon the order of the
Old Noteholder and the Old Notes covered by those items shall
no longer be considered to be properly tendered.
b. A withdrawal may not be rescinded. Withdrawn Old Notes may,
however, be tendered at anytime on or prior to the Expiration
Date.
7. You are to record and to hold all tenders received by you and to
promptly notify by telephone or facsimile, after the close of business
on each business day, the following person as to the total number of
Old Notes tendered on such day and the cumulative numbers with respect
to the Old Notes received through the time of such call or facsimile:
Executive Vice President, Treasurer and Chief Financial Officer of the
Company.
Each daily report should identify: the number and principal amount of
Old Notes represented by (i) certificates, and (ii) Notices of
Guaranteed Delivery actually received by
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you through the time of the report. In addition, you will also provide,
and cooperate in making available to the Company or the Company's
counsel such other information as the Company or the Company's counsel
may reasonably request upon oral request made from time to time. Your
cooperation shall include, without limitation, the granting by you to
the Company, and such other persons as it may reasonably request, of
access to those persons on your staff who are responsible for receiving
tenders of Old Notes in order to insure that immediately prior to the
Expiration Date, the Company shall have received information in
sufficient detail to enable it to decide whether to extend the Exchange
Offer.
8. Letters of Transmittal, Notices of Guaranteed Delivery and telegrams,
facsimile transmissions and letters submitted in lieu thereof pursuant
to the Exchange Offer shall be stamped by you as to the date and time
of receipt and shall be retained in your possession until the
Expiration Date. As promptly as practicable after the Expiration Date,
you will deliver those items, together with all properly tendered Old
Notes to the Company.
9. You are to follow up and to act upon any amendments, modifications or
supplements to these instructions mutually satisfactory to you, ind the
Company, and upon any further information in connection with the terms
of the Exchange Offer, any of which may be given to you by the Company,
including instructions with respect to (i) any extension or other
modification of the Exchange Offer, (ii) the amount or manner of
payment for any Old Notes exchanged, and (iii) the cancellation of the
Exchange Offer.
10. If under the conditions set forth in the Prospectus and Letter of
Transmittal, the Company becomes obligated to accept Old Notes
tendered, it will, as promptly as practicable thereafter, deposit with
you certificates representing New Notes in the amount determined
according to the ratio prescribed in the Prospectus and Letter of
Transmittal. Unless otherwise indicated under any Special Issuance
Instructions or any Special Delivery Instructions set forth in any
Letter of Transmittal, you shall in mail the certificates representing
the New Notes and the certificates for any Old Notes submitted but not
tendered for exchange to the registered owner of the securities at the
address shown in the Letter of Transmittal. In the event that either or
both of the Special Issuance Instructions or any Special Delivery
Instructions are completed, you shall mail all certificates
representing New Notes (or Old Notes to be returned, if any) to the
person or persons so indicated in the Letter of Transmittal.
Certificates shall be post-marked by you within a reasonable period of
time after certificates have been provided to you.
11. No exchange shall be made as to any Old Notes unless and until such Old
Notes have been properly tendered as provided in Section 4 of this
Agreement.
12. For performing your services hereunder, you shall be entitled to
receive from the Company a fee of $3,000.00. You shall also be
reimbursed by the Company for all reasonable expenses, including
counsel fees, if any, and mailing costs you may incur in connection
with the performance of your duties.
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13. As Exchange Agent hereunder you:
(a) shall not have duties or obligations other than those
specifically set forth or as may subsequently be agreed to by
you and the Company;
(b) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability
unless you have been furnished with reasonable
indemnification;
(c) may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and believed by
you to be genuine and to have been signed by the proper party
or parties.
(d) may rely on and shall be protected in acting or refraining
from acting up n the written instructions of the Company;
(e) may consult counsel satisfactory to you (including counsel to
the Company), and the opinion of such counsel shall be full
and complete authorization and protection with respect to any
act on taken. suffered, or omitted by you hereunder in good
faith and in accordance with the opinion of such counsel; and
(f) you shall not be deemed to have notice of any fact, claim or
demand with respect hereto unless actually known by an officer
charged with responsibility for administering this Agreement
or unless in writing received by you and making specific
reference to this Agreement.
14. You undertake the duties and obligations imposed herein upon the
following additional terms and conditions:
(a) you shall perform your duties and obligations hereunder with
due care;
(b) you shall not be under any responsibility in respect of the
validity or sufficiency (not only as to genuineness, but also
as to its due execution, the genuineness or signatures
appearing thereon and as to the trust and accuracy of any
information therein contained) of and Letter of Transmittal,
certificate representing Old Notes, book-entry transfer of Old
Notes or Notice of Guaranteed Delivery; and
(c) neither you nor any of your directors, officers or employees
shall be liable to anyone for any error of judgment, or for
any act done or step taken or omitted to be taken by you or
any of your directors, officers or employees, of for any
mistake of fact or law, or for anything which you or any of
your directors, officers or employees, may do or refrain from
doing in connection with or in the administration of the
Agreement, unless and except to the extent the same
constitutes gross negligence or willful misconduct on your
part.
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15. You are not authorized to make any recommendation on behalf of the
Company as to whether a holder of Old Notes should or should not tender
his, her or its Old Notes.
16. All certificates representing New Notes shall be forwarded by (i)
first-class mail under a blanket surety bond protecting you and the
Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (ii) registered mail, insured
separately for the replacement value of such certificates.
17. You are authorized to cooperate with and furnish information to any
organization (and its representatives) designated from time to time by
the Company, in any manner reasonably requested by any of them and
acceptable to you in connection with the Exchange Offer.
18. The Company covenants and agrees to reimburse, indemnify and hold you
harmless against any costs, expenses (including reasonable expenses of
your legal counsel), losses or damages which, without negligence.
misconduct or bad faith on your part may be paid, incurred or suffered
by you or to which you may become subject by reason of or as a result
of the administration of your duties hereunder or by reason of or as
result of Your compliance with the instructions set forth herein or
with any written or oral instructions delivered to you pursuant hereto,
including any claims against you by any Old Noteholder. The Company
shall be entitled to participate at its own expense in the defense, and
if the Company so elects at any time after receipt of such notice, the
Company shall assume the defense of any suit brought to enforce any
such claim. In the event that the Company assumes the defense of any
such suit, the Company shall not be liable for the fees and expenses of
any additional counsel thereafter retained by you, unless in your
judgment, which must be reasonable, it is advisable for you to be
represented by separate counsel. In no case shall the Company be liable
under this indemnity with respect to any claim or action against you,
unless the Company shall be notified by you, by letter or by cable or
by telecopy confirmed by letter, of the written assertion of a claim
against you or of any action commenced against you, promptly after you
shall have received any such written assertion of a claim or shall have
been served with a summons or other first legal process giving
information as to the nature and basis of an action, but failure so to
notify the Company shall not relieve the Company from any liability
which it may have otherwise than on account of this indemnity.
19. You hereby acknowledge receipt of each of the documents listed in items
(i) through (iii) of the introduction to this Agreement and further
acknowledge that you have examined the same. Any inconsistency between
this Agreement on the one hand and the documents listed in items (i)
through (iii) of the introduction of this Agreement, as they may from
time to time be amended, on the other, shall be resolved in favor of
the latter, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent.
20. All notices statements and other communications hereunder shall be in
writing, signed by a duly authorized officer of the party sending such
notices, and shall be deemed given when delivered by hand or certified
mail, postage prepaid, addressed as follows:
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To the Company:
Golden Sky Systems, Inc.
605 West 47th Street, Suite 300
Kansai City, MO 64112
Attention: Randall Duncan
Facsimile: 816/753-5044
Telephone: 816/753-5544
To the Exchange Agent:
State Street Bank and Trust Company
Corporate Trust Department
211 North Broadway, Suite 3900
St. Louis, MO 63102
Attention: Robert A. Clasquin
Facsimile: 314/206-3016
Telephone: 314/206-3054
or to such other address as either party may furnish hereunder by
notice; provided that notice of change of address shall be deemed given
only when received.
21. This Agreement shall be construed and enforced in accordance with the
law of the State of Missouri applicable to agreements made and to be
performed in the State of Missouri and shall inure to the benefit of,
and the obligations created hereby shall be binding upon, the
successors and assigns of the parties hereto.
22. These instructions may be reasonably modified or supplemented by the
Company of by any officer thereof authorized to give notice, approval
or waiver on its behalf.
23. As used herein, "business day" shall mean any day other than a Saturday
or Sunday, or any other day on which you are authorized or required to
be closed for business.
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Please acknowledge receipt of this letter and confirm the arrangements herein
provided by signing and returning the enclosed copy.
Very truly yours,
GOLDEN SKY SYSTEMS, INC.
By: /s/ RODNEY A. WEARY
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Name: Rodney A. Weary
Title: Chief Executive Officer
ACCEPTED AS OF NOVEMBER 24, 1998
STATE STREET BANK AND TRUST COMPANY
OF MISSOURI, N.A.
As Exchange Agent
By: /s/ ROBERT A. CLASQUIN
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Name: Robert A. Clasquin
Title: Assistant Vice President