EXECUTION COPY
ECHOSTAR DBS CORPORATION
5-3/4% SENIOR NOTES DUE 2008
INDENTURE
Dated as of October 2, 2003
U.S. Bank National Association
Trustee
EXECUTION COPY
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1).................................................... 7.10
(a)(2).................................................... 7.10
(a)(3).................................................... N/A
(a)(4).................................................... N/A
(b)....................................................... 7.10
(c)....................................................... N/A
311(a)....................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N/A
312(a)....................................................... 2.05
(b)....................................................... 11.03
(c)....................................................... 11.03
313(a)....................................................... 7.06
(b)(1).................................................... 7.06
(b)(2).................................................... 7.07
(c)....................................................... 7.06; 11.02
(d)....................................................... 7.06
314(a)....................................................... 4.03(a); 11.05
(4)....................................................... 4.04
(b)....................................................... N/A
(c)(1).................................................... 11.04
(c)(2).................................................... 11.04
(c)(3).................................................... N/A
(d)....................................................... N/A
(e)....................................................... 11.05
(f)....................................................... N/A
315(a)....................................................... 7.01(b)
(b)....................................................... 7.05; 11.02
(c)....................................................... 7.01(a)
(d)....................................................... 7.01
(e)....................................................... 6.11
316(a) (last sentence)....................................... 2.09
(a)(1)(A)................................................. 6.05
(a)(1)(B)................................................. 6.04
(a)(2).................................................... N/A
(b)....................................................... 6.07
(c)....................................................... 2.12
317(a)(1).................................................... 6.08
(a)(2).................................................... 6.09
(b)....................................................... 2.04
318(a)....................................................... 11.01
(c)....................................................... 11.01
- ------------------------
N/A means Not Applicable.
Note: This Cross-Reference Table shall not, for any purposes, be deemed to be
part of this Indenture.
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.......................................................................... 1
SECTION 1.02. Other Definitions.................................................................... 18
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.................................... 19
SECTION 1.04. Rules of Construction................................................................ 20
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating...................................................................... 20
SECTION 2.02. Form of Execution and Authentication................................................. 22
SECTION 2.03. Registrar and Paying Agent........................................................... 23
SECTION 2.04. Paying Agent To Hold Money in Trust.................................................. 23
SECTION 2.05. Lists of Holders of the Notes........................................................ 24
SECTION 2.06. Transfer and Exchange................................................................ 24
SECTION 2.07. Replacement Notes.................................................................... 35
SECTION 2.08. Outstanding Notes.................................................................... 35
SECTION 2.09. Treasury Notes....................................................................... 35
SECTION 2.10. Temporary Notes...................................................................... 36
SECTION 2.11. Cancellation......................................................................... 36
SECTION 2.12. Defaulted Interest................................................................... 36
SECTION 2.13. Record Date.......................................................................... 36
SECTION 2.14. CUSIP Number......................................................................... 37
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee................................................................... 37
SECTION 3.02. Selection of Notes To Be Redeemed.................................................... 37
SECTION 3.03. Notice of Redemption................................................................. 38
SECTION 3.04. Effect of Notice of Redemption....................................................... 38
SECTION 3.05. Deposit of Redemption Price.......................................................... 38
SECTION 3.06. Notes Redeemed in Part............................................................... 39
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SECTION 3.07. Optional Redemption.................................................................. 39
SECTION 3.08. Offer To Purchase by Application of Excess Proceeds.................................. 41
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes..................................................................... 43
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.................................................... 45
SECTION 4.08. Limitations on Dividend and Other Payment Restrictions Affecting Subsidiaries........ 50
SECTION 4.09. Limitation on 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.................................................................. 59
SECTION 4.13. Additional Subsidiary Guarantees..................................................... 59
SECTION 4.14. Corporate Existence.................................................................. 60
SECTION 4.15. Offer To Purchase Upon Change of Control............................................. 60
SECTION 4.16. Limitation on Activities of the Company.............................................. 61
SECTION 4.17. Intentionally Omitted................................................................ 61
SECTION 4.18. Accounts Receivable Subsidiary....................................................... 61
SECTION 4.19. Dispositions of ETC and Non-Core Assets.............................................. 64
SECTION 4.20. Payments For Consent................................................................. 67
SECTION 4.21. Termination or Suspension of Certain Covenants Under Certain Conditions.............. 67
ARTICLE 5
SUCCESSORS
SECTION 5.01. Merger, Consolidation, or Sale of Assets of the Company.............................. 68
SECTION 5.02. Successor Corporation Substituted.................................................... 69
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.................................................................... 69
SECTION 6.02. Acceleration......................................................................... 70
SECTION 6.03. Other Remedies....................................................................... 71
SECTION 6.04. Waiver of Past Defaults.............................................................. 71
SECTION 6.05. Control by Majority.................................................................. 71
SECTION 6.06. Limitation on Suits.................................................................. 72
SECTION 6.07. Rights of Holders of Notes To Receive Payment........................................ 72
SECTION 6.08. Collection Suit by Trustee........................................................... 72
SECTION 6.09. Trustee May File Proofs of Claim..................................................... 73
SECTION 6.10. Priorities........................................................................... 73
SECTION 6.11. Undertaking for Costs................................................................ 74
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.................................................................... 74
SECTION 7.02. Rights of Trustee.................................................................... 75
SECTION 7.03. Individual Rights of Trustee......................................................... 76
SECTION 7.04. Trustee's Disclaimer................................................................. 76
SECTION 7.05. Notice of Defaults................................................................... 76
SECTION 7.06. Reports by Trustee to Holders of the Notes........................................... 76
SECTION 7.07. Compensation and Indemnity........................................................... 77
SECTION 7.08. Replacement of Trustee............................................................... 77
SECTION 7.09. Successor Trustee by Merger, Etc..................................................... 79
SECTION 7.10. Eligibility; Disqualification........................................................ 79
SECTION 7.11. Preferential Collection of Claims Against Company.................................... 79
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option To Effect Legal Defeasance or Covenant Defeasance............................. 79
SECTION 8.02. Legal Defeasance and Discharge....................................................... 79
SECTION 8.03. Covenant Defeasance.................................................................. 80
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SECTION 8.04. Conditions to Legal or Covenant Defeasance........................................... 80
SECTION 8.05. Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous
Provisions........................................................................... 82
SECTION 8.06. Repayment to Company................................................................. 82
SECTION 8.07. Reinstatement........................................................................ 82
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holders of Notes.................................................. 83
SECTION 9.02. With Consent of Holders of Notes..................................................... 83
SECTION 9.03. Compliance with Trust Indenture Act.................................................. 85
SECTION 9.04. Revocation and Effect of Consents.................................................... 85
SECTION 9.05. Notation on or Exchange of Notes..................................................... 85
SECTION 9.06. Trustee To Sign Amendments, Etc...................................................... 85
ARTICLE 10
GUARANTEES
SECTION 10.01. Guarantee............................................................................ 86
SECTION 10.02. Execution and Delivery of Guarantees................................................. 87
SECTION 10.03. Merger, Consolidation or Sale of Assets of Guarantors................................ 88
SECTION 10.04. Successor Corporation Substituted.................................................... 88
SECTION 10.05. Releases from Guarantees............................................................. 89
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls......................................................... 89
SECTION 11.02. Notices.............................................................................. 89
SECTION 11.03. Communication by Holders of Notes with Other Holders of Notes........................ 90
SECTION 11.04. Certificate and Opinion as to Conditions Precedent................................... 91
SECTION 11.05. Statements Required in Certificate or Opinion........................................ 91
SECTION 11.06. Rules by Trustee and Agents.......................................................... 91
SECTION 11.07. No Personal Liability of Directors, Officers, Employees, Incorporators and
Stockholders......................................................................... 91
SECTION 11.08. Governing Law........................................................................ 92
SECTION 11.09. No Adverse Interpretation of Other Agreements........................................ 92
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SECTION 11.10. Successors........................................................................... 92
SECTION 11.11. Severability......................................................................... 92
SECTION 11.12. Counterpart Originals................................................................ 92
SECTION 11.13. Table of Contents, Headings, Etc..................................................... 92
vi
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
vii
INDENTURE, dated as of October 2, 2003, among EchoStar DBS
Corporation (the "Company"), a Colorado corporation, the Guarantors (as
hereinafter defined) and U.S. Bank 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 5-3/4% Senior Notes due 2008.
RECITALS
The Company and the Guarantors have duly authorized the
execution and delivery of this Indenture to provide for the issuance of the
Notes and the Guarantees.
All things necessary (i) to make the Notes, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company and delivered hereunder, the valid obligations of the Company, (ii) to
make the Guarantees when executed by the Guarantors and delivered hereunder the
valid obligations of the Guarantors, and (iii) to make this Indenture a valid
agreement of the Company and 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 1.01 Definitions.
"144A Global Note" means one or more global Notes
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, which, in the aggregate, are
equal to the outstanding principal amount of the Notes initially 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 Company's accounts receivable 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 specified 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
telecommunications service provided by a telecommunications service 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 telecommunications
services to such subscriber from such telecommunications service provider,
whether directly or through the acquisition of the entity providing
telecommunications services or assets used or to be used to provide
telecommunications 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 telecommunications services
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 telecommunications
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 telecommunications
services 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 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 Clearstream 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.
"Board of Directors" means the Board of Directors of the
Company.
2
"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 one year from the date of acquisition; (c) certificates of deposit
and eurodollar time deposits with maturities of one year or less from the date
of acquisition, bankers' acceptances with maturities not exceeding one year 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 30 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 or
better, A-1 or better or the equivalent thereof by Moody's or S&P, respectively,
and in each case maturing within 12 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.
"Change of Control" means: (a) any transaction or series of
transactions the result of which is that any Person (other than the Principal or
a Related Party) individually owns more than 50% of the total Equity Interest of
ECC; (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.
"Clearstream" means Clearstream Banking, societe anonyme.
"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.
3
"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 or, if such Person is the Company, of the Company and its
Restricted 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 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 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 Tangible Assets" means, with respect to any
Person, the aggregate amount of assets of such Person (less applicable reserves
and other properly deductible items) after deducting therefrom (to the extent
otherwise included therein) (a) all current liabilities and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, all as set forth in the books and records of such Person
and its consolidated Subsidiaries as of the end of the most recently ended
fiscal quarter and computed in accordance with GAAP.
"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 on a consolidated basis in accordance with GAAP.
4
"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.
"DBS" means direct broadcast satellite.
"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 owed 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 the Company and/or them in the
businesses described in Section 4.16 in an aggregate principal amount not to
exceed $200 million at any one time outstanding.
"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.
5
"EchoStar Dish Network" means the DBS service of the Company
and its Subsidiaries.
"EchoStar I" means the Company's high-powered direct broadcast
satellite as identified in EchoStar's Annual Report on Form 10-K for the year
ended December 31, 2002 and consolidated financial statements included therein.
"EchoStar II" means the Company's high-powered direct
broadcast satellite as identified in EchoStar's Annual Report on Form 10-K for
the year ended December 31, 2002 and consolidated financial statements included
therein.
"EchoStar III" means the high-powered direct broadcast
satellite as identified in EchoStar's Annual Report on Form 10-K for the year
ended December 31, 2002 and consolidated financial statements included therein.
"EchoStar IV" means the high-powered direct broadcast
satellite as identified in EchoStar's Annual Report on Form 10-K for the year
ended December 31, 2002 and consolidated financial statements included therein.
"EDBS Exchange Indenture" means the indenture, dated as of
November 4, 2002, among the Company, the guarantors of the EDBS Exchange Notes
named therein and U.S. Bank National Association, as trustee, as the same may be
amended, modified or supplemented from time to time.
"EDBS Exchange Notes" means the $1,000,000,000 aggregate
principal original issue amount of 10-3/8% Senior Notes due 2007 issued by the
Company.
"EDBS Notes" means the 2001 EDBS Notes, the 1999 EDBS Notes
and the EDBS Exchange Notes.
"EDBS Notes Indentures" means the 2001 EDBS Notes Indenture,
the 1999 EDBS Notes Indenture and the EDBS Exchange Indenture.
"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).
"ESC" means EchoStar Satellite Corporation, a Colorado
corporation.
"ETC" means EchoStar Technologies Corporation, a Texas
corporation.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system.
6
"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) or pursuant to a registered exchange offer for Notes
with a Private Placement Legend issued after the Issue Date.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement with respect to the Notes.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement with respect to the Notes.
"Existing Indebtedness" means the Notes, the 6-3/8% Notes, the
Floating Rate 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.
"Floating Rate Notes" means the $500,000,000 aggregate
principal original issue amount of Floating Rate Senior Notes due 2008 issued by
the Company under the Floating Rate Notes Indenture.
"Floating Rate Notes Indenture" means the indenture, dated as
of October 2, 2003, among the Company, the guarantors of the Floating Rate Notes
named therein and U.S. Bank National Association, as trustee.
"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 United States of America, 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 of
America 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
7
(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 by a Guarantor.
"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, 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 if
such Person or any of its Subsidiaries (or, if such Person is the Company, any
of its Restricted Subsidiaries) consummates an acquisition, merger or other
business combination or an Asset Sale or other disposition of assets subsequent
to the commencement of the Measurement Period 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 transaction(s) as if
the same had occurred at the beginning of the applicable period.
8
"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 Notes" means the $1.0 billion aggregate principal
amount 5-3/4% Senior Notes due 2008 of the Company issued under this Indenture
on the Issue Date.
"Initial Purchasers" means, with respect to the Notes, Banc of
America LLC and Credit Suisse First Boston LLC.
"Investment Grade" means, with respect to a security, that
such security is rated at least BBB- or higher by S&P or Baa3 or higher by
Moody's (or, in the event of change in ratings systems, the equivalent of such
ratings by S&P or Moody's), or the equivalent rating of another nationally
recognized statistical rating organization.
"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 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.
"Issue Date" means October 2, 2003, the date of original
issuance of the Initial Notes.
"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 or required 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 statute) 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
9
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 3.0 times the Trailing Cash
Flow Amount, or, if greater and following a Fall Away Event, 15% of the
Company's Consolidated Net Tangible Assets.
"Moody's" means Moody's Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income
(loss) of such 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.
"1999 EDBS Notes" means the $1,625,000,000 aggregate principal
original issue amount of 9-3/8% Senior Notes due 2009 issued by the Company.
"1999 EDBS Notes Indenture" means the indenture dated January
25, 1999 among the Company, the guarantors of the 1999 EDBS Notes named therein
and U.S. Bank National Association, as Trustee, as the same may be amended,
modified or supplemented from time to time.
"Non-Core Assets" means: (1) all intangible present and
possible future authorizations, rights, interests and other intangible assets
related to all "western" DBS orbital locations other than the 148 degree orbital
slot (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 authorization
for 3 DBS frequencies at the 157 degree orbital location; (2) all intangible
present and possible future 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 Ka/Ku-band
system at 83 degree and 121 degree orbital location, the application of ESC to
add
10
C-band capabilities to a Ku-band satellite authorized at 83 degree orbital
location, and ESC's pending applications for Ka-band and extended Ku-band
satellites related to the fixed satellite service; (3) all present and possible
future intangible authorizations, rights, interests and other intangible assets
related to the mobile satellite service 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 mobile satellite service system; (4) all present and
possible future 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 4.19.
"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
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 Initial Notes, the Exchange Notes and any
other notes issued after the Issue Date in accordance with the fourth paragraph
of Section 2.02 of this Indenture treated as a single class of securities.
"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, the 6-3/8% Notes
and the Floating Rate Notes pursuant to the Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum, dated
September 18, 2003, relating to and used in connection with the Offering.
"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.
"Opinion of Counsel" means an opinion from legal counsel, who
may be an employee of or counsel to the Company, any Subsidiary of the Company
or the Trustee.
11
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Investments" means: (a) Investments in the Company
or in a Wholly Owned Restricted Subsidiary that is a Guarantor; (b) Investments
in Cash Equivalents and Marketable Securities; and (c) Investments by the
Company or any of its Subsidiaries in a Person if, as a result of such
Investment: (i) such Person becomes a Wholly Owned Restricted Subsidiary and
becomes a 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 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, the 6-3/8% Notes and the
Floating Rate Notes and Liens securing any Guarantee, any Guarantee (as defined
in the 6-3/8% Notes Indenture) and any Guarantee (as defined in the Floating
Rate Notes Indenture);
(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; 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 of its
Restricted Subsidiaries, 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;
12
(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 Issue Date;
(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 the business
of the Company or any of its Restricted Subsidiaries (including, without
limitation, Liens securing Purchase Money Indebtedness) with respect to
obligations that do not exceed $50 million in principal amount in the aggregate
at any one time outstanding;
(n) Liens securing Indebtedness in an amount not to
exceed $50 million incurred pursuant to clause (11) of the second paragraph of
Section 4.09 of this Indenture;
(o) Liens on any asset of the Company or any of its
Restricted Subsidiaries securing Indebtedness in an amount not to exceed $25
million;
(p) Liens securing Indebtedness permitted under clause
(12) of the second paragraph of 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 Obligations; provided that such Capital Lease Obligation is permitted
under the other provisions of this Indenture;
(r) Liens permitted to be incurred under the EDBS Notes
Indentures;
(s) Liens not provided for in clauses (a) through (r)
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
13
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
(t) 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.
"Principal" means Charles W. Ergen.
"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 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 or the Guarantors): (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 $50
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; and (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.
"Rating Agencies" means: (a) S&P; (b) Moody's; or (c) if S&P
or Moody's or both shall not make a rating of the Notes publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by the Company, which shall be substituted for S&P or Moody's or both,
as the case may be.
"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
14
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, the 6-3/8% Notes and the Floating Rate Notes, dated as
of October 2, 2003, by and among the Company, the Guarantors, the Initial
Purchasers and any 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 one or more global Notes
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, which, in the aggregate, are
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.
"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 distribution compliance
period as defined in Regulation S.
15
"Restricted Subsidiary" or "Restricted Subsidiaries" 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.
"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 Ratings Group, a division of The
McGraw Hill Companies, Inc.
"Satellite Receiver" means any satellite receiver capable of
receiving programming from the EchoStar Dish Network.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"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 Issue Date.
"6-3/8% Notes" means the $1,000,000,000 aggregate principal
original issue amount of 6-3/8% Senior Notes due 2011 issued by the Company
under the 6-3/8% Notes Indenture.
"6-3/8% Notes Indenture" means the indenture, dated as of
October 2, 2003, among the Company, the guarantors of the 6-3/8% Notes named
therein and U.S. Bank National Association, as trustee.
"Subsidiary" or "Subsidiaries" 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.
"TIA" means the Trust Indenture Act of 1939 as in effect on
the date of this Indenture.
16
"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; provided that if the Company or any of
its Restricted Subsidiaries consummates a merger, acquisition or other business
combination or an Asset Sale or other disposition of assets subsequent to the
commencement of such period but prior to or contemporaneously with the event for
which the calculation of Trailing Cash Flow Amount is made, then Trailing Cash
Flow Amount 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.
"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.
"2001 EDBS Notes" means the $700,000,000 aggregate principal
original issue amount of 9-1/8% Senior Notes due 2009 issued by the Company.
"2001 EDBS Notes Indenture" means the indenture dated December
28, 2001 among the Company and U.S. Bank National Association, as trustee, as
the same may be amended, modified or supplemented from time to time.
"2003 Indentures" means this Indenture, the 6-3/8% Notes
Indenture and the Floating Rate Notes Indenture.
"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.
"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" or "Unrestricted Subsidiaries"
means: (A) E-Sat, Inc., Wright Travel Corporation, EchoStar Real Estate
Corporation V, EchoStar International (Mauritius) Ltd., EchoStar Manufacturing &
Distribution Private Ltd. India, Satrec Mauritius Ltd., Celsat America, WS
Acquisition Corporation, Flextracker Sdn. Bhd., Echosphere De Mexico S. De R.L.
De C.V. and EIC Spain, S.L.; and (B) any Subsidiary of the Company designated as
an Unrestricted Subsidiary in a resolution of the Board of Directors:
(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
17
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 neither ESC nor Echosphere Corporation
may be designated as an Unrestricted Subsidiary. If at any time after the date
of this Indenture 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 ten business days following a request from the
Trustee, which certificate shall cover the six months preceding the date of the
request) of such 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.
"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.
18
SECTION 1.02 Other Definitions.
Defined
Term 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
"Company"..................................................... Preamble
"Covenant Defeasance"......................................... 8.03
"DTC"......................................................... 2.01
"ETC Amount Due............................................... 4.19
"Event of Default"............................................ 6.01
"Excess Proceeds"............................................. 4.10
"Excess Proceeds Offer"....................................... 3.08
"H.15(519) Selected Interest Rates"........................... 3.07
"incur"....................................................... 4.09
"Legal Defeasance"............................................ 8.02
"Make-Whole Premium".......................................... 3.07
"Non-Core Asset Amount Due"................................... 4.19
"Offer Amount"................................................ 3.08
"Offer Period"................................................ 3.08
"Paying Agent"................................................ 2.03
"Payment Default"............................................. 6.01(f)
"Payout"...................................................... 4.19
"Permitted Refinancing"....................................... 4.09
"Private Placement Legend".................................... 2.01
"Purchase Date"............................................... 3.08
"Refinancing Indebtedness".................................... 4.09
"Registrar"................................................... 2.03
"Remaining Term".............................................. 3.07
"Restricted Payments"......................................... 4.07
"Terminated Covenants"........................................ 4.21
"Treasury Yield".............................................. 3.07
SECTION 1.03 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;
"indenture security Holder" means a Holder of a Note;
19
"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.
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 1.04 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 2.01. 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 this Indenture. The Notes may have notations,
legends or endorsements approved as to form by the Company, and required by law,
stock exchange rule, agreements to which the Company is 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 one or more
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:
20
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 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 HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH NOTE, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (THE
"RESALE
21
RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT AND OTHERWISE IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40 DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE
(E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
The Trustee must refuse to register any transfer of a Note bearing the Private
Placement Legend that would violate the restrictions described in such legend.
SECTION 2.02. 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 authenticate (i) Initial Notes for original
issue on the Issue Date in an aggregate principal amount of $1.0 billion, (ii)
pursuant to the Exchange Offer, Exchange Notes from time to time for issue only
in exchange for a like principal amount of Initial Notes and (iii) subject to
compliance with Section 4.09, one or more series of Notes for original issue
after the Issue Date (such Notes to be substantially in the form of Exhibit A)
in an unlimited
22
amount (and if issued with a Private Placement Legend, the same principal amount
of Exchange Notes in exchange therefor upon consummation of a registered
exchange offer) in each case upon written orders of the Company in the form of
an Officers' Certificate, which Officers' Certificate shall, in the case of any
issuance pursuant to clause (iii) above, certify that such issuance is in
compliance with Section 4.09. In addition, each such Officers' Certificate shall
specify the amount of Notes to be authenticated, the date on which the Notes are
to be authenticated, whether the Securities are to be Initial Notes, Exchange
Notes or Notes issued under clause (iii) of the preceding sentence and the
aggregate principal amount of Notes outstanding on the date of authentication,
and shall further specify the amount of such Notes to be issued as a Global Note
or Definitive Notes. Such Notes shall initially be in the form of one or more
Global Notes, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Notes to be issued, (ii) shall
be registered in the name of the Depositary for such Global Note or Notes or its
nominee and (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction. All Notes issued under this Indenture
shall vote and consent together on all matters as one class and no series of
Notes will have the right to vote or consent as a separate class on any matter.
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 2.03. 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 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 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.
23
SECTION 2.04. 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 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) shall have no
further liability for the money delivered to the Trustee. If the Company 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 2.05. 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 shall otherwise comply with TIA Section
312(a).
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note
may not be 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 2.07 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
24
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 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, (B) (1) if Definitive Notes are at
such time permitted to be issued pursuant to this Indenture, 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
25
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 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:
(y) 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
26
(z) 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 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;
27
(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 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:
28
(y) 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
(z) 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 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.
29
(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 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; or
(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,
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:
(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
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(D) the Registrar receives the
following:
(y) 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
(z) 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 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
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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 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, if the Registrar so requests, a certification or
Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such transfer is in compliance with
the Securities Act.
(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:
(y) if the Holder of such
Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted
Definitive
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Note, a certificate from such Holder in the
form of Exhibit D hereto, including the
certifications in item (1)(d) thereof; or
(z) 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 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.
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(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 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, 3.08
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,
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
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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 2.07. 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 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 obligation of the Company.
SECTION 2.08. 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 protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01, it shall cease to be outstanding and interest on it shall cease 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.
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SECTION 2.09. 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.
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
36
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
SECTION 3.01. 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
35 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. If the Company is required to make the redemption pursuant to
Section 3.08, it shall furnish the Trustee, at least one but not more than 10
Business Days before a redemption date, an Officers' Certificate setting forth
(i) the redemption date and (ii) the redemption price.
SECTION 3.02. 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 deems 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
37
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 3.03. Notice of Redemption.
Subject to the provisions of Sections 3.08, 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:
(i) the redemption date;
(ii) the redemption price;
(iii) 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 upon surrender of such Note, a new Note
or Notes in principal amount equal to the unredeemed portion shall be
issued in the name of the Holder thereof upon cancellation of the
original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(vi) 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;
(vii) the paragraph of the Notes and/or Section of
this Indenture pursuant to which the Notes called for redemption are
being redeemed; and
(viii) 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 that the Company
shall have delivered to the Trustee, at least 35 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 3.04. 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.
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SECTION 3.05. 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, if the Company does not
default in the payment of the redemption price, 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 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 3.06. 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 3.07. Optional Redemption.
The Notes will be subject to redemption at the option of the
Company, at any time in whole, or from time to time in part, upon not less than
30 nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount of such Notes plus accrued and unpaid interest, if any, to the
applicable redemption date plus the "Make-Whole Premium." The "Make-Whole
Premium," with respect to any Note or any portion of any Note to be redeemed
shall be equal to the greater of:
(a) 1% of the principal amount of such Note or such
portion of a Note being redeemed and
(b) the excess, if any, of
(i) the sum of the present values, calculated as
of the redemption date, of:
(A) each interest payment that, but for
the redemption, would have been payable on the Note, or
portion of a Note, being redeemed on each interest payment
date occurring after the redemption date, excluding any
accrued interest for the period prior to the redemption date,
plus
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(B) the principal amount that, but for
the redemption, would have been payable on the maturity date
of the Note, or portion of a Note, being redeemed; over
(ii) the principal amount of the Note, or portion
of a Note, being redeemed.
The present values of interest and principal payments referred
to in clause (b)(i) above will be determined in accordance with generally
accepted principles of financial analysis. The present values will be calculated
by discounting the amount of each payment of interest or principal from the date
that each such payment would have been payable, but for the redemption, to the
redemption date at a discount rate equal to the Treasury Yield, as defined
below, plus 50 basis points.
The Company shall appoint an independent investment banking
institution of national standing to calculate the Make-Whole Premium; provided
that if the Company fails to appoint such an institution at least 45 days prior
to the date set for redemption or if the institution that the Company appoints
is unwilling or unable to make such calculation, such calculation shall be made
by Banc of America Securities LLC or, if such firm is unwilling or unable to
make such calculation, by an independent investment banking institution of
national standing appointed by the Trustee.
For purposes of determining the Make-Whole Premium, "Treasury
Yield" shall refer to an annual rate of interest equal to the weekly average
yield to maturity of United States Treasury Notes that have a constant maturity
that corresponds to the remaining term to maturity of the Notes being redeemed,
calculated to the nearest 1/12th of a year (the "Remaining Term"). The Treasury
Yield shall be determined as of the third Business Day immediately preceding the
applicable redemption date.
The weekly average yields of United States Treasury Notes
shall be determined by reference to the most recent statistical release
published by the Federal Reserve Bank of New York and designated "H.15(519)
Selected Interest Rates" or any successor release (the "H.15 Statistical
Release"). If the H.15 Statistical Release sets forth a weekly average yield for
United States Treasury Notes having a constant maturity that is the same as the
Remaining Term, then the Treasury Yield shall be equal to such weekly average
yield. In all other cases, the Treasury Yield shall be calculated by
interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes that have a
constant maturity closest to and less than the Remaining Term, in each case as
set forth in the H.15 Statistical Release. Any weekly average yields as
calculated by interpolation shall be rounded to the nearest 0.01%, with any
figure of 0.005% or more being rounded upward. If weekly average yields for
United States Treasury Notes are not available in the H.15 Statistical Release
or otherwise, then the Treasury Yield shall be calculated by interpolation of
comparable rates selected by the independent investment banking institution.
Additionally, (i) Holders of record on the relevant record
date shall have the right to receive interest due on any interest payment date
that is on or prior to the redemption date and
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(ii) the redemption price shall never be less than 100% of the principal amount
of the Notes being redeemed plus accrued interest to the redemption date.
Notwithstanding the foregoing, at any time prior to October 1,
2006, the Company may redeem up to 35% of the aggregate principal amount of the
Notes outstanding at a redemption price equal to 105.750% of the principal
amount thereof on the redemption date, together with accrued and unpaid interest
to such redemption date, with the net cash proceeds of any capital contributions
or 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 of the originally issued principal amount of the Notes remains
outstanding immediately after the occurrence of such redemption; and (b) the
sale of such Equity Interests is made in compliance with the terms of this
Indenture.
SECTION 3.08. 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 or this Section 3.08 exceeds $100.0
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 Indenture. 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 ranked equally with the
Notes to make an offer to purchase such other Indebtedness 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.
41
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:
(i) that the Excess Proceeds Offer is being made
pursuant to this Section 3.08 and the length of time the Excess
Proceeds Offer shall remain open;
(ii) the Offer Amount, the purchase price and the
Purchase Date;
(iii) that any Note not tendered or accepted for
payment shall continue to accrue interest;
(iv) that any Note accepted for payment pursuant
to the Excess Proceeds Offer shall cease to accrue interest after the
Purchase Date;
(v) 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;
(vi) 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 Holder is withdrawing
his election to have the Note purchased;
(vii) 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
(viii) 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 3.08. 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
42
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 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 3.08, any
purchase pursuant to this Section 3.08 shall be made pursuant to the provisions
of Sections 3.01 through 3.06.
ARTICLE 4
COVENANTS
SECTION 4.01. 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 4.02. 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 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
43
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 4.03. 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 on Forms 10-Q and 10-K 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 required to file reports on Form 10-Q and
10-K, 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 Forms 10-Q and 10-K, 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 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 4.04. 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 and its Subsidiaries during 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.
44
(b) 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 4.05. 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 4.06. Stay, Extension and Usury Laws.
The Company 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 (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 4.07. Limitation on Restricted Payments.
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 by 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:
(i) in accordance with the scheduled mandatory
redemption, sinking fund or repayment provisions set forth in the
original documentation governing such Indebtedness and
(ii) the purchase, repurchase or other acquisition of
subordinated Indebtedness with a stated maturity earlier than the
maturity of the Notes or the
45
Guarantees purchased in anticipation of satisfying a payment of
principal at the stated maturity thereof, within one year of such
stated maturity;
(d) declare or pay any dividend or make any distribution on
account of any Equity Interests of any Restricted Subsidiary, other than:
(i) to the Company or any Wholly Owned Restricted
Subsidiary; or
(ii) 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 (ii), 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 made by the Company after
December 28, 2001, is less than the sum of:
(A) the difference of
(x) the 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 January 1, 2002
to the end of the Company's most recently
ended fiscal 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
46
business permitted under Section 4.16 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
December 28, 2001; plus
(C) if any Unrestricted Subsidiary is
designated by the Company as a Restricted Subsidiary, an
amount equal to the fair market value of the net Investment by
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 December 28, 2001; 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
since December 28, 2001 to the extent not included in
cumulative Consolidated Cash Flow of the Company; 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 December 28, 2001 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 amount 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), (11),
and (12) below, no Default or Event of Default shall have occurred and be
continuing):
(1) the payment of any dividend or distribution 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 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);
47
(3) Investments in an aggregate amount not to exceed $500
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 amount 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) $100 million plus (B) 50% 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, redemption, repurchase or other acquisition
or retirement for value of employee stock options to purchase Capital
Stock of EchoStar, or Capital Stock of EchoStar issued pursuant to any
management equity plan, stock option plan or other management or
employee benefit plan or agreement, in an aggregate amount not to
exceed $25 million in any calendar year;
(6) a Permitted Refinancing;
(7) Investments in an amount equal to 100% of the aggregate
net proceeds (whether or not in cash) received by the Company or any
Wholly Owned Restricted Subsidiary 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 EchoStar), on
or after December 28, 2001; 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
that the foregoing amount 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 4.16
of this Indenture;
(8) Investments in any Restricted Subsidiary which is not a
Wholly Owned Restricted Subsidiary, but which is a Guarantor and
Investments in the form of intercompany debt with any direct or
indirect parent company or any Wholly Owned Subsidiary of such direct
or indirect parent company provided that such debt is incurred in the
ordinary course of business and is used in a business described in
Section 4.16 of this Indenture;
48
(9) Investments in businesses strategically related to
businesses described in Section 4.16 of this Indenture in an aggregate
amount not to exceed $250 million;
(10) cash dividends or distributions to EchoStar to the extent
required for the purchase of odd-lots of Equity Interests of EchoStar,
in an aggregate amount not to exceed $15 million in any calendar year;
(11) the making of any Restricted Payment (including the
receipt of any Investment) permitted under or resulting from any
transaction permitted under Section 4.19 of this Indenture; provided
that all conditions to any such Restricted Payment set forth in such
Section 4.19 are satisfied;
(12) 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 and Investments entered into in connection with an
acquisition of assets used in or constituting a business permitted
under Section 4.16 of this Indenture as a result of "earn-outs" or
other deferred payments or similar obligations;
(13) any Restricted Payment permitted under another 2003
Indenture or any of the EDBS Notes Indentures;
(14) Investments which are used to pay for the construction,
launch, operation or insurance of satellites owned or leased by the
Company or any Subsidiaries of the Company in an amount not to exceed
$500 million;
(15) Investments in a foreign direct-to-home satellite
provider in an amount not to exceed $200 million; provided that the
Investments are made through the supply of satellite receivers and
related equipment to the provider, or the proceeds from the Investments
are used to purchase satellite receivers and related equipment from
EchoStar or a Subsidiary of EchoStar;
(16) the redemption, repurchase, defeasance or other
acquisition or retirement for value of subordinated Indebtedness,
including premium, if any, and accrued and unpaid interest, with the
proceeds of, or in exchange for: (a) the proceeds of a capital
contribution or a substantially concurrent offering of, shares of
Capital Stock of the Company (or options, warrants or other rights to
acquire such Capital Stock), or (b) Indebtedness that is at least as
subordinated in right of payment to the Notes, including premium, if
any, and accrued and unpaid interest, as the Indebtedness being
redeemed, repurchased, defeased, acquired or retired and with a final
maturity equal to or greater 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
redeemed, repurchased, defeased, acquired or retired;
(17) repurchases of Equity Interests deemed to occur upon (a)
the exercise of stock options, warrants or convertible securities
issued as compensation if such Equity Interests represent a portion of
the exercise price thereof and (b) the withholding of a portion of the
Equity Interests granted or awarded to an employee to pay taxes
associated
49
therewith (or a dividend or distribution to finance such a deemed
repurchase by EchoStar);
(18) amounts paid by the Company to EchoStar or any other
person with which the Company is included in a consolidated tax return
equal to the amount of federal, state and local income taxes payable in
respect of the income of the Company and its Subsidiaries, including
without limitation, any payments made in accordance with tax allocation
agreements between the Company and its Affiliates in effect from time
to time; and
(19) the making of a Restricted Payment so long as 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 Company's Indebtedness to Cash Flow Ratio would
not exceed 3.5 to 1.
Restricted Payments made pursuant to clauses (1), (2), (4),
(7), (16) (but only to the extent that net proceeds received by the Company as
set forth in such clause (2), (7) or (16) were included in the computations made
in clause (iii)(B) of the first paragraph of this Section 4.07), (10) or (13)
(but only to the extent such Restricted Payment is included as a Restricted
Payment in any computation made pursuant to clause (iii) of the first paragraph
of Section 4.07 of the other 2003 Indentures and in the EDBS Notes Indenture),
shall be included as Restricted Payments in any computation made pursuant to
clause (iii) of the first paragraph of this Section 4.07.
Restricted Payments made pursuant to clauses (3), (5), (6),
(7), (16) (but only to the extent that net proceeds received by the Company as
set forth in such clause (7) or (16) were not included in the computations made
in clause (iii)(B) of the first paragraph of this Section 4.07), (8), (9), (11),
(12), (13) (but only to the extent such Restricted Payment is not included as a
Restricted Payment in any computation made pursuant to clause (iii) of the first
paragraph of Section 4.07 of another 2003 Indenture or in an EDBS Notes
Indenture), (14), (15), (17), (18) or (19) shall not be included as Restricted
Payments in any computation made pursuant 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 ten Business 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 the date
of the request was 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.
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SECTION 4.08. Limitations on Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary 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 the Company's
Subsidiaries;
(b) make loans or advances to the Company or any of its
Subsidiaries; or
(c) transfer any of its properties or assets to the Company or
any of its Subsidiaries; except for such encumbrances or restrictions existing
under or by reasons of:
(i) Existing Indebtedness and existing agreements as
in effect on the Issue Date;
(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 this 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) any of the 2003 Indentures or any of the Notes,
the 6-3/8% Notes or the Floating Rate 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
51
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 4.09. Limitation on 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, "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 (including, in the case of an acquisition, merger or other
business combination giving pro forma effect to such transaction), either (a)
the Indebtedness to Cash Flow Ratio of the Company would not have exceeded 8.0
to 1 or (b) the aggregate amount of Indebtedness of the Company and the
Guarantors would not exceed $1,500 per Subscriber.
The foregoing limitation will not apply to any of the
following incurrences of Indebtedness:
(1) Indebtedness in an aggregate principal amount of $2.5
billion represented by any of the Notes and the Guarantees thereof, the
6-3/8% Notes and the Guarantees (as defined in the 6-3/8% Notes
Indenture), the Floating Rate Notes and the Guarantees (as defined in
the Floating Rate Notes Indenture), and the 2003 Indentures;
(2) the incurrence by the Company or any Guarantor of Acquired
Subscriber Debt not to exceed $1,750 per Acquired Subscriber (less any
amount used to incur Indebtedness pursuant to clause (b) of the
immediately preceding paragraph);
(3) the incurrence by the Company or any Guarantor of Deferred
Payments and letters of credit with respect thereto;
(4) Indebtedness of the Company or any Guarantor in an
aggregate principal amount not to exceed $1,050,000,000 at any one time
outstanding;
(5) Indebtedness between and among the Company and any
Guarantor;
(6) 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) $250
million in the aggregate for all such Persons other than those
described in the immediately following clause (B); and (B) Acquired
Debt owed to the Company or any of its Restricted Subsidiaries;
(7) Existing Indebtedness;
(8) the incurrence of Purchase Money Indebtedness by the
Company or any Guarantor in an amount not to exceed the cost of
construction, acquisition or
52
improvement of assets used in any business permitted under Section
4.16 of this Indenture, as well as any launch costs and insurance
premiums related to such assets;
(9) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred in the ordinary
course of business and not for speculative purposes, it being
understood that Hedging Obligations covering the principal amount of
Indebtedness entered into in order to protect the Company or any of its
Restricted Subsidiaries from fluctuation in interest rates on
Indebtedness are deemed to be incurred in the ordinary course of
business;
(10) 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 4.16 of this Indenture;
(11) 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 any of its Restricted
Subsidiaries or any refinancing thereof; provided that the aggregate of
all Indebtedness incurred pursuant to this clause (11) shall in no
event exceed $100 million at any one time outstanding;
(12) 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 (1), (2), (3), (6), (7) or (8) 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 exchanged, 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 equal to or later 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
exchanged, extended, refinanced, renewed, replaced, substituted 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, substituted or refunded (a
"Permitted Refinancing");
(13) 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;
53
(14) Indebtedness under Capital Lease Obligations of the
Company or any Guarantor with respect to no more than five direct
broadcast satellites at any time; and
(15) Indebtedness of the Company or any Restricted Subsidiary
owed to (including obligations in respect of letters of credit for the
benefit of) any Person in connection with workers' compensation,
health, disability or other employee benefits or property, casualty or
liability insurance provided by such Person to the Company or such
Restricted Subsidiary pursuant to reimbursement or indemnification
obligations to such Person, in each case incurred in the ordinary
course of business and consistent with industry practices.
For purposes of determining compliance with this Section 4.09,
if an item of Indebtedness meets the criteria of more than one of the categories
described in clauses (1) through (15) 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 (1) through (15) 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:
(1) sales or other dispositions of inventory in the ordinary
course of business;
(2) sales or other dispositions to the Company or a Wholly
Owned Restricted Subsidiary of the Company by the Company or any
Restricted Subsidiary;
(3) 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;
(4) sales or other dispositions of rights to construct or
launch satellites; and
(5) sales or other dispositions permitted under Section 4.19
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 of Article 5 of this Indenture); or
(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 4.19 of
this Indenture);
54
in either case, which assets or Equity Interests: (1) have a fair market value
in excess of $100 million (as determined in good faith by the Board of Directors
evidenced by a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee); or (2) are sold or otherwise disposed of
for net proceeds in excess of $100 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 evidenced by a resolution of the Board of
Directors and set forth in an Officers' Certificate delivered to the
Trustee not later than ten Business Days following a request from the
Trustee, which certificate shall cover each Asset Sale made in the six
months preceding the 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 180 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; and/or
(z) properties and capital assets (including
Capital Stock of an entity owning such property or
assets so long as the receipt of such Capital Stock
otherwise complies with Section 4.07 (other than
clause (12) of the second paragraph thereof) to be
used by the Company or any of its Restricted
Subsidiaries in a business permitted under Section
4.16 of this Indenture;
provided, however, that up to $100 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), so long as 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 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: 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, a business permitted under Section 4.16 of this
Indenture, to repurchase Notes, 6-3/8% Notes, Floating Rate Notes or
55
EDBS Notes, to prepay, repay or purchase other senior Indebtedness or, if the
Company sells any of its satellites after launch such that the Company or its
Restricted Subsidiaries own fewer than three in-orbit satellites, only to
purchase a replacement satellite. 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 3.08 of this Indenture.
Clause (B) of the second preceding paragraph shall not apply
to all or such portion of the consideration:
(1) as is properly designated by the Company in connection
with an Asset Sale as being subject to this paragraph; and
(2) 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 that the Company and its Subsidiaries are permitted
to designate as a result of the cash contributions made to the Company
by EchoStar pursuant to another 2003 Indenture or any of the EDBS Notes
Indentures plus, to the extent any such consideration did not satisfy
clause (B)(x) or (B)(z) above, upon the exchange or repayment of such
consideration for or with assets which satisfy either or both such
clauses, an amount equal to the fair market value of such consideration
(evidenced by a resolution of the Board of Directors 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 essential 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 any of its Restricted Subsidiaries 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 the assets sold are satellites, uplink centers or
call centers; provided that, in the case of this clause (z), the
Company and its Restricted Subsidiaries continue to own at least three
satellites, one uplink center and one call center.
(c) Transactions described under clause (xii) of Section 4.11
of this Indenture shall not be subject to the requirements of this Section 4.10.
56
SECTION 4.11. Limitation on Transactions with Affiliates.
The Company shall not and shall not permit any Restricted
Subsidiary to, sell, lease, transfer or otherwise dispose of any of its or their
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 $200 million, such Affiliate Transaction has either (i)
been approved by a majority of the disinterested members of the Board
of Directors or (ii) if there are no disinterested members of the Board
of Directors, the Company or such Restricted Subsidiary has obtained
the favorable opinion of an independent expert as to the fairness of
such Affiliate Transaction to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view, and the
Company delivers to the Trustee no later than ten Business Days
following a request from the Trustee a resolution of the Board of
Directors 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 reasonable fees, compensation or
employee benefit arrangements to, and any indemnity provided for the
benefit of, directors, officers, consultants or employees of EchoStar
and its Subsidiaries in the ordinary course of business and consistent
with industry practice;
(ii) transactions between or among the Company and
its Wholly Owned Subsidiaries (other than Unrestricted Subsidiaries);
(iii) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the
funding of employment arrangements, stock options and stock ownership
plans approved by the Board of Directors;
(iv) transactions in the ordinary course of business,
including loans, expense allowances, reimbursements or extensions of
credit (including indemnity arrangements) between the Company or any of
its Restricted Subsidiaries on the one hand, and any employee of the
Company or any of its Restricted Subsidiaries, on the other hand;
(v) the granting and performance of registration
rights for shares of Capital Stock of the Company under a written
registration rights agreement approved by a majority of the members of
the Board of Directors that are disinterested with respect to these
transactions;
57
(vi) transactions with Affiliates solely in their
capacity as holders of Indebtedness or Capital Stock of the Company or
any of its Subsidiaries, so long as a significant amount of
Indebtedness or Capital Stock of the same class is also held by persons
that are not Affiliates of the Company and these Affiliates are treated
no more favorably than holders of the Indebtedness or the Capital Stock
generally;
(vii) 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;
(viii) Restricted Payments that are permitted by
Section 4.07 of this Indenture;
(ix) any transactions pursuant to agreements in
effect on the date of this Indenture and any modifications, extensions
or renewals thereof that are no less favorable to the Company or the
applicable Restricted Subsidiary than such agreement as in effect on
the date of such Indenture;
(x) 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;
(xi) the provision of services to EchoStar and its
Affiliates by the Company or any of its Restricted Subsidiaries so long
as no cash or other assets are transferred by the Company or its
Restricted Subsidiaries in connection with such transactions (other
than up to $100 million in cash in any fiscal year and other than
nonmaterial assets used in the operations of the business in the
ordinary course pursuant to the agreement governing the provision of
the services), and so long as such transaction or agreement is
determined by a majority of the members of the Board of Directors to be
fair to the Company and its Restricted Subsidiaries when taken together
with all other such transactions and agreements entered into with
EchoStar and its Affiliates;
(xii) the disposition of assets of the Company and
its Restricted Subsidiaries in exchange for assets of EchoStar and its
Affiliates so long as (i) the value to the Company in its business of
the assets the Company receives is determined by a majority of the
members of the Board of Directors to be substantially equivalent or
greater than the value to the Company in its business of the assets
disposed of, and (ii) the assets acquired by the Company and its
Restricted Subsidiaries constitute properties and capital assets
(including Capital Stock of an entity owning such property or assets so
long as the receipt of such Capital Stock otherwise complies with
Section 4.07 of this Indenture (other than clause (12) of the second
paragraph thereof)) to be used by the Company or any of its Restricted
Subsidiaries in a business permitted as described under Section 4.16 of
this Indenture;
58
(xiii) sales of Equity Interests (other than
Disqualified Stock) to Affiliates of the Company; and
(xiv) 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.
SECTION 4.13. Additional Subsidiary Guarantees.
If the Company or any Guarantor transfers or causes to be
transferred, in one transaction 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 evidenced by a resolution of the Board of Directors 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 Officers' Certificate shall cover
the six months preceding January 1, July 1 or the date of request, as the case
may be) exceeding the sum of $100 million in the aggregate for all such
transfers after the Issue Date (fair market value being determined as of the
time of such acquisition) to Restricted Subsidiaries that are not Guarantors,
the Company shall, or shall cause each of such Subsidiaries to which any amount
exceeding such $100 million (less such fair market value) is transferred to:
(i) execute and deliver to the Trustee a supplemental
indenture to this 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
evidenced by a resolution of the Board of Directors and set forth in an
Officers' Certificate delivered to the Trustee no later than five Business Days
following January
59
1 and July 1 of each year or ten days following a request from the Trustee,
which Officers' Certificate shall cover the six months preceding January 1, July
1 or the 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
to this Indenture and deliver an opinion of counsel, 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 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 the date of request, as the case may
be) of all such Restricted Subsidiaries created, acquired or designated since
the Issue Date (fair market value being determined as of the time of creation,
acquisition or designation) does not exceed the sum of $100 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, 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 proviso set
forth at the end 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 Sections 4.10 and 4.19, 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 and 4.19, the rights (charter and statutory), licenses
and 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 of 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 (the "Change of Control Payment"). Within 15
days following any Change of Control, the Company shall mail a notice to each
Holder stating:
60
(a) that the Change of Control Offer is being made pursuant to
the covenant entitled "Section 4.15 -- Offer to Purchase Upon Change of
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");
(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
Holder 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 Holder'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 required in the event of a Change of Control.
SECTION 4.16. Limitation on 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.
61
SECTION 4.17. Intentionally Omitted.
SECTION 4.18. 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
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 Issue Date (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
62
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 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;
(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;
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(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 this clause (h)(ii), the
order or decree remains unstayed and in effect for 60 consecutive days.
SECTION 4.19. Dispositions of ETC and Non-Core Assets.
Notwithstanding the provisions of Section 4.07 and Section
4.10 of this Indenture, in the event that 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 Equity Interests in or assets of ETC owned by
the Company and its Subsidiaries, then:
(1) the payment of any dividend or distribution consisting of
Equity Interests in or assets of ETC, 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 ETC or the proceeds of a sale, conveyance or other
disposition of such Equity Interests or assets shall not constitute a
Restricted Payment;
(2) the sale, conveyance or other disposition of the Equity
Interests in 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 release, ETC shall be discharged
and released from its Guarantee and, so long as the Company designates
ETC as an Unrestricted Subsidiary, ETC shall be discharged and released
from all covenants and restrictions contained in this Indenture;
provided that no such payment, sale, conveyance or other disposition
(collectively, a "Payout") described in clauses (1) or (2) above shall be
permitted if at the time of such Payout:
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(a) 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:
(i) the amount of all Investments (other than the
contribution of:
(x) 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
(y) patents, trademarks and copyrights
applied for or granted as of the date of this
Indenture to the extent used by ETC or resulting 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
(ii) 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
(iii) $100 million; and
(b) 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 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 Restricted
Subsidiaries with an unrelated Person, all as evidenced by a resolution of the
Board of Directors set forth in an Officers' Certificate delivered to the
Trustee, within ten Business Days of a request by the Trustee certifying that
each such contract, agreement, understanding, loan, advance and guarantee has
been approved by a majority of the members of the Board of Directors.
If at the time of such Payout, the condition set forth in
clause (a) 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 4.19 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 (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
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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.
Notwithstanding the provisions of Section 4.07 and Section
4.10 of this Indenture:
(1) the payment of any dividend or distribution consisting 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 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;
(2) the sale, conveyance or other disposition of the 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 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 release, any such Non-Core Asset
that is a Guarantor shall be discharged and released from its Guarantee
and, so long as the Company designates such Non-Core Asset as an
Unrestricted Subsidiary, such Non-Core Asset shall be released 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:
(a) 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:
(i) the amount of all Investments made in such
Non-Core Asset by the Company or its Restricted Subsidiaries since the
Issue Date (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
(ii) 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
(iii) $100 million in the aggregate for all such
Payouts and $25 million for any single such Payout; and
(b) 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
66
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 as set forth in an Officers' Certificate delivered to the
Trustee, within ten Business Days of a request by the same, certifying that each
such contract, agreement, understanding, loan, advance and guarantee has been
approved by a majority of the Board of Directors.
If at the time of such Payout, the condition set forth in
clause (a) 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
Non-Core Asset 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 4.19 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 4.19, within ten Business Days of a request by the Trustee, 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 4.19 have been satisfied in connection with the making of such Payout.
Notwithstanding anything contained in this Section 4.19 to the
contrary, any disposition of ETC or Non-Core Assets permitted pursuant to the
EDBS Notes Indentures shall also be permitted pursuant to this Indenture and
shall not be considered a "Restricted Payment" or "Asset Sale" for purposes of
this Indenture.
SECTION 4.20. 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.
SECTION 4.21. Termination or Suspension of Certain Covenants Under Certain
Conditions.
If, on any date following the Issue Date, the Notes receive an
Investment Grade rating from both Rating Agencies and no Default or Event of
Default has occurred and is
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continuing (a "Fall Away Event") then, beginning on that date and continuing at
all times thereafter regardless of any subsequent changes in the rating of the
Notes, the provisions of the Indenture contained in Sections 3.08, 4.07, 4.09,
4.10, 4.11, 4.15, 4.18 and 4.19 and clause (d) of Section 5.01 (collectively,
the "Fall Away Covenants") will no longer be applicable to the Notes.
In addition to the foregoing, during any period of time in
which the Notes have an Investment Grade rating from one of the Rating Agencies
and no Default or Event of Default has occurred and is continuing, then the Fall
Away Covenants will not apply to the Notes.
Upon the termination or suspension of the Fall Away Covenants
under either of the two foregoing paragraphs, the amount of Excess Proceeds for
purposes of Section 3.08 of this Indenture shall be set at zero.
ARTICLE 5
SUCCESSORS
SECTION 5.01. Merger, Consolidation, or Sale of Assets of the Company.
The Company shall 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 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 under this Indenture and the
Notes pursuant to a supplemental indenture to this Indenture in form reasonably
satisfactory to the Trustee;
(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 will have been made
(i) will 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
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(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 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 (determined
on a pro forma basis), the Company's Indebtedness to Cash Flow Ratio either (i)
does not exceed 8.0:1 or (ii) does not exceed the Company's Indebtedness to Cash
Flow Ratio immediately prior to such merger.
SECTION 5.02. 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
SECTION 6.01. 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 repurchase, redemption or otherwise;
(c) failure to comply with the provisions of Section 4.10,
Section 4.11 or Section 4.15;
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(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 then outstanding of
the Notes 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 and 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 $200 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 and 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 $200 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 $200 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 $100 million, which judgments are not stayed within 60 days after their
entry;
(i) EchoStar, the Company 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;
(j) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief against EchoStar, the
Company or any Significant Subsidiary of the Company in an involuntary case;
(ii) appoints a custodian of EchoStar, the Company or any Significant Subsidiary
of the Company or for all or substantially all of the property of EchoStar, the
Company or any Significant Subsidiary of the Company; or (iii) orders the
liquidation of EchoStar or any Significant Subsidiary of the Company, and the
order or decree remains unstayed and in effect for 60 consecutive days; and
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(k) any Guarantee 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.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default
specified in clause (i) or (j) 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.
Notwithstanding the foregoing, in the case of an Event of Default specified in
clause (i) or (j) of Section 6.01 with respect to the Company or any Guarantor,
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 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 6.03. 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.
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SECTION 6.04. 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 6.05. Control by Majority.
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 6.06. 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 6.07. 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
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payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder of the Note.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b)
occurs and is 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 6.09. 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 7.01. 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. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
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(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 7.01.
(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 Holder 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 7.02. 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.
(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.
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(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(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 7.03. 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 7.04. 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, 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 7.05. 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
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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 7.06. 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 7.07. 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 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.
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When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(i) or (j) 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 7.08. 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 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 Trustee 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.
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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 7.09. 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.
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 8.01. 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 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 of the option
applicable to this Section 8.02, the Company shall be deemed to have been
discharged from its obligations with
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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 2.03, 2.04, 2.05, 2.06, 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 8.03. Covenant Defeasance.
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 3.08, 4.03, 4.04, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.18, 4.19 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 GAAP). 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(h) and Section
6.01(k) shall not constitute Events of Default.
SECTION 8.04. 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
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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 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 Issue Date, 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 acceptable 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(i) or 6.01(j) 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
81
of the Company or with the intent of defeating, hindering, delaying or
defrauding any of the other creditors of the Company or others; and
(g) The Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for or
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 8.05. 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 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 8.06. 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 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
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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 8.07. 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 9.01. 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 Guarantees;
(c) to provide for the assumption of the Company's or the
Guarantors' obligations to the Holders of the Notes in the case of a merger or
consolidation pursuant to Article 5 or Article 10;
(d) 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 hereunder of any Holder of the Notes; or
(e) to comply with requirements of the SEC in order to effect
or 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 a resolution of the board of directors
of each Guarantor and upon receipt by the Trustee of the documents described in
Section 11.04, 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
83
obligated to enter into such amended or supplemental indenture which affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. With Consent of Holders of Notes.
The Company, the 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 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 3.08, 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):
(a) reduce the aggregate principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the Notes;
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) 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);
(e) make any Note payable in money other than that stated in
the Notes;
(f) 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;
(g) waive a redemption payment or mandatory redemption with
respect to any Note; or
(h) 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 a resolution of the board of directors
of each Guarantor, 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 11.04,
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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 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture and the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
SECTION 9.04. 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 debt as the consenting Holder'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 9.05. 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.
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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 9.06. 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 any amended or supplemental
indenture until its board of directors approves it.
ARTICLE 10
GUARANTEES
SECTION 10.01. 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 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 against 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
86
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 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 10.02. 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
87
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 10.03. Merger, Consolidation or Sale of Assets of Guarantors.
Subject to Section 10.05, 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:
(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 under this Indenture and the
Notes pursuant to a supplemental indenture to this Indenture in form reasonably
satisfactory to the Trustee; and
(c) immediately after such transaction no Default or Event of
Default exists.
Nothing contained in this Indenture shall prevent any
consolidation or merger of a Guarantor 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 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 with or into the Company or another
Guarantor that is a Restricted Subsidiary of the Company or shall prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor that is a
Restricted Subsidiary of the Company.
SECTION 10.04. Successor Corporation Substituted.
Upon any consolidation, merger, sale or conveyance described
in clauses (a) through (d) of Section 10.04, 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 Guarantor and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the
88
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.
SECTION 10.05. 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 and Section 10.04, 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 and Section 10.04, 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 4.20 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 11.01. 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 11.02. Notices.
Any notice or communication by the Company, any Guarantor or
the Trustee to the other is duly given if in writing and delivered in Person or
mailed 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 any Guarantor:
89
EchoStar DBS Corporation
5701 South Santa Fe Drive
Littleton, Colorado 80120
Telecopier No.: (303) 723-1699
Attention: David K. Moskowitz, Esq.
With a copy to:
Sullivan & Cromwell LLP
1870 Embarcadero Road
Palo Alto, California 94303
Telecopier No.: (650) 461-5600
Attention: Scott D. Miller, Esq.
If to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
Saint Paul, Minnesota 55107
Telecopier No: (651) 495-8097
Attention: Corporate Trust Administration
The Company, any 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.
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 11.03. 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
90
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.04. 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 11.05. 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
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.06. 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 11.07. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders.
No director, officer, employee, incorporator or stockholder of
the Company, the Guarantors or any of their Affiliates, as such, shall have any
liability for any obligations of the Company, the Guarantors or any of their
Affiliates under the Notes, the Guarantees or this
91
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. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
SECTION 11.08. 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 11.09. 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 and the Guarantors in this
Indenture and 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 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]
92
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- David K. Moskowitz
--------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: -s- Richard H. Prokosch
--------------------------------------------
Name: Richard H. Prokosch
Title: Vice President
ECHOSTAR SATELLITE CORPORATION
ECHOSTAR TECHNOLOGIES CORPORATION
ECHO ACCEPTANCE CORPORATION
ECHOSPHERE CORPORATION
DISH NETWORK SERVICE CORPORATION
ECHOSTAR INTERNATIONAL CORPORATION
as Guarantors
By: -s- David K. Moskowitz
--------------------------------------------
Name:
Title:
S-1
EXHIBIT A
[Face of Note]
5-3/4% Senior Note due 2008
Cert. No.
CUSIP No. [ ]
EchoStar DBS Corporation promises to pay to __________________ or its registered
assigns the principal sum of _____________________ Dollars on October 1, 2008
Interest Payment Dates: April 1 and October 1, commencing April 1, 2004
Record Dates: March 15 and September 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 National Association, as Trustee
By: _________________________________________
Authorized Signatory
Dated:
A-1
(Back of Note)
Capitalized terms used herein have the meanings assigned to
them in the Indenture (as defined below) unless otherwise indicated.
(1) 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 5-3/4% per
annum and will be payable semi-annually in arrears in cash on each April 1 and
October 1 of each year, commencing April 1, 2004, 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 March 15 and September 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 the date of issuance. 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.
(2) 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 of America 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.
(3) 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.
(4) Indenture. The Company issued the Notes under an
Indenture, dated as of October 2, 2003 (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 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.
A-2
(5) Optional Redemption. The Notes will be subject to
redemption at the option of the Company, at any time in whole, or from time to
time in part, upon not less than 30 nor more than 60 days' notice, at a
redemption price equal to 100% of the principal amount of such Notes plus
accrued and unpaid interest, if any, to the applicable redemption date plus the
"Make-Whole Premium" as set forth in the Indenture.
Notwithstanding the foregoing, at any time prior to October 1,
2006, the Company may redeem up to 35% of the aggregate principal amount of the
Notes outstanding at a redemption price equal to 105.750% of the principal
amount thereof on the redemption date, together with accrued and unpaid interest
to such redemption date, with the net cash proceeds of any capital contributions
or 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 of the originally issued principal amount of the Notes remains
outstanding immediately after the occurrence of such redemption; and (b) the
sale of such Equity Interests is made in compliance with the terms of the
Indenture.
(6) 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 accordance with Section 4.10 (Asset Sales) or Section 3.08
(Offer to Purchase By Application of Excess Proceeds) of the Indenture, exceeds
$100.0 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 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 ranked
equally with the Notes to make an offer to purchase such other Indebtedness 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. To the extent that the 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 an 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.
A-3
(7) 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.
(8) 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.
(9) 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.
(10) Amendments, Supplement and Waivers. Subject to certain
exceptions, the Indenture or Notes may be amended or supplemented with the
consent of the Holders 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 3.08 (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 receive payments
of principal of or interest on the Notes; waive a
A-4
redemption payment or mandatory redemption 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 or Guarantees in addition to
or in place of certificated Notes or Guarantees; to provide for the assumption
of the Company's or any Guarantor'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.
(11) 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 4.11
(Limitation on Transactions with Affiliates), or Section 4.10 (Asset
Sales) of the Indenture;
(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 and any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company and 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 $200 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 and 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
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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 $200 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 $200 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 $100 million, which judgments are not stayed
within 60 days after their entry;
(i) EchoStar, the Company 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;
(j) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief against
EchoStar, the Company or any Significant Subsidiary of the Company in
an involuntary case; (ii) appoints a custodian of EchoStar, the Company
or any Significant Subsidiary of the Company or for all or
substantially all of the property of EchoStar, the Company or any
Significant Subsidiary of the Company; or (iii) orders the liquidation
of EchoStar or any Significant Subsidiary of the Company, and the order
or decree remains unstayed and in effect for 60 consecutive days; and
(k) any Guarantee 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.
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.
A-6
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.
(12) 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 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.
(13) 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.
(14) Guarantees. 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.
(15) Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
(16) 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).
(17) CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security 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.
A-7
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
5701 South Santa Fe Drive
Littleton, Colorado 80120
Attention: David K. Moskowitz, Esq.
A-8
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-9
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 3.08 or Section 4.15 of the
Indenture check the appropriate box:
[ ] Section 3.08 [ ] Section 4.15
If you want to have only part of the Note purchased by the
Company pursuant to Section 3.08 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-10
[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
AMOUNT OF AMOUNT
AMOUNT OF INCREASE OF THIS GLOBAL SIGNATURE OF
DECREASE IN PRINCIPAL NOTE AUTHORIZED
PRINCIPAL AMOUNT FOLLOWING SUCH OFFICER
DATE OF AMOUNT OF OF THE GLOBAL DECREASE (OR OF TRUSTEE OR
EXCHANGE THIS GLOBAL NOTE NOTE INCREASE) NOTE CUSTODIAN
- ---------------- ---------------- ------------- ---------------- --------------
A-11
EXHIBIT B
FORM OF 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 GUARANTOR]
By:______________________________
Name:
Title:
B-1
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
EchoStar DBS Corporation
5701 South Santa Fe Drive
Littleton, Colorado 80120
U.S. Bank National Association
60 Livingston Avenue
St. Paul, Minnesota 55107
Re: 5-3/4 % Senior Notes due 2008
Reference is hereby made to the Indenture, dated as of October
2, 2003 (the "Indenture"), among EchoStar DBS Corporation, as issuer (the
"Company"), the Guarantors named therein and U.S. Bank 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 being effected
pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act
C-1
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.
(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 transfe
C-2
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.
C-3
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:_________________
C-4
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-5
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
EchoStar DBS Corporation
5701 South Santa Fe Drive
Littleton, Colorado 80120
U.S. Bank National Association
60 Livingston Avenue
St. Paul, Minnesota 55107
Re: 5-3/4% Senior Notes due 2008
(CUSIP ___________)
Reference is hereby made to the Indenture, dated as of October
2, 2003 (the "Indenture"), among EchoStar DBS Corporation, as issuer (the
"Company"), the Guarantors named therein and U.S. Bank 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 transfer, (ii) such
Exchange has been effected in
D-1
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 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
D-2
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.
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:_________________
D-3