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SATELLITE ESCROW AGREEMENT
Among
FIRST TRUST NATIONAL ASSOCIATION
(as "Escrow Agent" and "Trustee")
and
ECHOSTAR DBS CORPORATION
("Company")
June 25, 1997
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TABLE OF EXHIBITS
Exhibit A Form of Budget
Exhibit B-1 Form of Regular Disbursement Request
Exhibit B-2 Form of Disbursement Request for Regular
Disbursements from the Escrow Account
on or after Project Completion
Exhibit B-3 Form of Disbursement Request for Funds upon
Receipt of Contractual Deferrals
Exhibit B-4 Form of Disbursement Request for Funds
from Insurance Proceeds Sub-Account to
Construct and Launch Replacement
Satellite
Exhibit B-5 Form of Disbursement Request for Funds
from Insurance Proceeds Sub-Account
to Apply to an Excess Proceeds Offer
Exhibit B-6 Form of Disbursement Request for All
Remaining Funds from Insurance
Proceeds Sub-Account
Exhibit B-7 Form of Disbursement Request for
Funds from Asset Sales Sub-Account
to Make Receiver Subsidies or
to Buy or Lease Satellite Frequencies
at Orbital Slots or to Purchase
Tangible Assets or to Purchase a
Replacement Satellite
Exhibit B-8 Form of Disbursement Request for
Funds from Asset Sales Sub-Account
to Apply to an Excess Proceeds Offer
Exhibit B-9 Form of Disbursement Request for
All Remaining Funds from Asset Sales
Sub-Account
Exhibit C-1 Form of Reporting Accounting Letter
for Disbursement Request in the
Form of Exhibit X-x or B-2
Exhibit C-2 Form of Reporting Accountant Letter
for Disbursement Request in the Form
of Exhibit B-3 or B-6
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SATELLITE ESCROW AGREEMENT
This SATELLITE ESCROW AGREEMENT ("AGREEMENT"), dated as of June 25,
1997, by and among FIRST TRUST NATIONAL ASSOCIATION, as Escrow Agent ("ESCROW
AGENT") and as trustee for the benefit of the holders of the Notes (as defined
below) under the Indenture (as defined below) (the "TRUSTEE"), and ECHOSTAR DBS
CORPORATION, a Colorado corporation (the "COMPANY").
RECITALS
A. Pursuant to that certain Indenture dated as of June 25, 1997, by
and among the Company, the EchoStar Group (as defined below) and the Trustee
("INDENTURE"), the Company has issued $375,000,000 aggregate principal amount of
its 12 1/2% Senior Secured Notes due 2002 ("NOTES").
B. As security for its obligation to repay the Notes, the Company
has executed and delivered to the Trustee, in addition to the Indenture, (i) a
Security Agreement, in which the Company grants to the Trustee a security
interest in (x) the Satellite Escrow Account (as defined herein) established
hereby and (y) the escrow account established by the Interest Escrow Agreement
dated as of the date hereof; and (ii) certain other collateral-related
documents.
C. As security for the Company's obligation to repay the Notes,
EchoStar Communications Corporation ("ECHOSTAR") has executed and delivered to
the Trustee a Pledge Agreement in which EchoStar grants to the Trustee a pledge
of all of EchoStar's right, title and interest in and to all of the issued and
outstanding capital stock of the Company.
D. The parties have entered into this Agreement to set forth the
conditions upon which, and the manner in which, funds will be disbursed from the
Satellite Escrow Account to permit, among other things, the Company to make
required payments under the Satellite Contract and Launch Contract as well as to
make payments of Launch Insurance or In-Orbit Insurance.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. DEFINED TERMS. Capitalized terms used herein but not defined
shall have the meaning given in the Indenture. In addition to any other defined
terms used herein, the following terms shall constitute defined terms for
purposes of this Agreement and shall have the meanings set forth below:
"ACCEPTABLE REPLACEMENT ESCROW AGENT" means a corporation organized
and doing business under the laws of the United States of America or of any
state thereof authorized under such laws to exercise corporate trustee power,
subject to supervision or
examination by federal or state authority and having a combined capital and
surplus of at least $100 million as set forth in its most recent published
annual report of condition.
"ACCEPTABLE REPLACEMENT REPORTING ACCOUNTANT" means any of the largest
six nationally recognized accounting firms.
"ASSET SALES SUB-ACCOUNT" has the meaning given in Section 2(d).
"AVAILABLE FUNDS" means, as of any time the calculation of Available
Funds is made, (a) the proceeds from the issuance and sale of the Notes
remaining in the Satellite Escrow Account, (b) net revenue which the Company
expects to realize within the period within which such Available Funds are
required to be available deriving from the Satellite which at the time the
calculation is made is in commercial operation, based upon then existing
contracts for use of such Satellite or from existing businesses to the extent
such revenues will be available to the Company, (c) the net proceeds from
certain asset sales permitted by Section 4.10 of the Indenture, (d) the proceeds
of any insurance received by the Company as the result of any launch failure of
the Satellite, or any replacement therefor, and which are permitted by the
Indenture to be applied to the development, construction, insurance, launch and
operation of a replacement satellite, and (e) funds contained in the Company's
deposit or other accounts; in each case without duplication and not including
any funds which the Company is contractually prohibited from expending on items
in the Budget or which are committed to or required for other business uses.
"BUDGET" means an itemized schedule in substantially the form attached
as EXHIBIT A, as such Budget may be amended from time to time pursuant to
Section 4(a).
"DISBURSEMENT REQUEST" means a request for disbursement by the Company
in substantially the form of EXHIBIT B-1 for disbursements requested from the
Satellite Escrow Account prior to Project Completion, in substantially the form
of EXHIBIT B-2 for disbursements requested subsequent to Project Completion, in
substantially the form of EXHIBIT B-3 for disbursements requested upon receipt
of contractual deferrals, in substantially the form of EXHIBIT B-4 for
disbursements requested from the Insurance Proceeds Sub-Account, in
substantially the form of EXHIBIT B-5 for disbursements requested from the
Insurance Proceeds Sub-Account in the event of an Excess Proceeds Offer, in
substantially the form of EXHIBIT B-6 for a disbursement request for all
remaining funds from the Insurance Proceeds Sub-Account after an Excess Proceeds
Offer, in substantially the form of EXHIBIT B-7 for disbursements requested from
the Asset Sales Sub-Account, in substantially the form of EXHIBIT B-8 for
disbursements requested from the Asset Sales Sub-Account in the event of an
Excess Proceeds Offer, and in substantially the form of EXHIBIT B-9 for a
disbursement request for all remaining funds from the Asset Sales Sub-Account
after an Excess Proceeds Offer. Each Disbursement Request shall be signed by
two officers of the Company, one of which shall be the Chief Financial Officer
or other senior officer of the Company responsible for financial matters.
"ECHOSTAR GROUP" means EchoStar Communications Corporation, EchoStar
Satellite Broadcasting Corporation and Dish, Ltd.
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"ECHOSTAR PARTIES" means the Company, Dish, Ltd. and EchoStar
Satellite Broadcasting Corporation.
"ELIGIBLE INSTITUTION" means a commercial banking institution (which
may include Escrow Agent and its affiliates) that has combined capital and
surplus of not less than $500 million or its equivalent in foreign currency,
whose debt is rated "A" (or higher) according to Standard & Poor's Corporation
("S&P") or Xxxxx'x Investors Service, Inc. ("MOODY'S") at the time as of which
any investment or rollover therein is made.
"ESCROW AGENT" has the meaning set forth in the preamble to this
Agreement.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"INITIAL ESCROW AMOUNT" shall mean $112.0 million.
"INSURANCE PROCEEDS SUB-ACCOUNT" has the meaning given in Section
2(c).
"LAUNCH CONTRACT" means the launch services contract for the launch of
EchoStar IV.
"OFFERING" means the private offering of the Notes.
"OFFERING MEMORANDUM" means the Offering Memorandum dated June 20,
1997, relating to the Offering.
"PROJECT" means the construction, launch and insurance of EchoStar IV.
"PROJECT COMPLETION" means that all requisite events have occurred or
failed to occur such that the Company can determine all amounts which will at
any time be due and owing under the Launch Contract and Satellite Contract and
to any other person entitled to funds contained in the Budget, and all such
amounts have been paid.
"REPORTING ACCOUNTANT" means Xxxxxx Xxxxxxxx LLP or, if the context
requires, the Acceptable Replacement Reporting Accountant.
"REPORTING LETTER" means a letter in substantially the form of EXHIBIT
C-1 or EXHIBIT C-2, from the Reporting Accountant.
"SATELLITE CONTRACT" means the satellite construction contract
relating to the Satellite.
"SATELLITE ESCROW ACCOUNT" means the escrow account established
pursuant to Section 2(b).
"SATELLITE" means the communications satellite described in the
Offering Memorandum as EchoStar IV.
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II. SATELLITE ESCROW ACCOUNT, ESCROW AGENT.
A. APPOINTMENT OF ESCROW AGENT. The Trustee and the Company
hereby appoint Escrow Agent, and Escrow Agent hereby accepts appointment, as
escrow agent under the terms and conditions of this Agreement. The term "Escrow
Agent" shall be deemed to include the successor to First Trust National
Association.
B. ESTABLISHMENT OF SATELLITE ESCROW ACCOUNT. Concurrently with
the execution and delivery hereof, Escrow Agent shall establish the Satellite
Escrow Account at its office at 000 Xxxx Xxxxx Xxxxxx, Xxxxx Xxxx, XX 00000.
Subject to the security interest granted therein for the benefit of the Trustee,
and subject to the other terms and conditions of this Agreement, all funds
accepted by Escrow Agent pursuant to this Agreement shall be held for the
benefit of the Company and the holders of the Notes in the Satellite Escrow
Account. All such funds shall be held in the Satellite Escrow Account until
disbursed in accordance with the terms hereof. The Satellite Escrow Account
shall be deemed to be under the sole dominion and control of Escrow Agent for
the benefit of the Trustee. Concurrently with the execution and delivery
hereof, the Company shall deliver the Initial Escrow Amount to the Escrow Agent
for deposit into the Satellite Escrow Account. The Company shall also deposit
into the Escrow Account any refundings of amounts paid pursuant to the Satellite
Contract and the Launch Contract. Escrow Agent shall issue a receipt, or an
initial account statement as described in Section 2(i), evidencing and
acknowledging Escrow Agent's receipt of all such funds.
C. INSURANCE PROCEEDS. Under certain circumstances as further
described in the Indenture, the Company, certain Subsidiaries or certain loss
payees are obligated to deposit with Escrow Agent all or a portion of the
proceeds of certain casualty insurance payments. Escrow Agent shall accept such
insurance proceeds, placing all funds relating to a casualty to either Satellite
in a segregated sub-account in the Satellite Escrow Account entitled "Insurance
Proceeds Sub-Account." Such sub-account shall for all purposes of this
Agreement be treated as the Satellite Escrow Account except as expressly
specified herein.
D. PROCEEDS FROM ASSET SALES. Under certain circumstances as
further described in the Indenture, the Company, certain Subsidiaries or a third
party is obligated to deposit with Escrow Agent the proceeds of asset sales.
Escrow Agent shall accept such asset sale proceeds, placing all funds relating
to such sale in a segregated sub-account in the Satellite Escrow Account
entitled "Asset Sales Sub-Account." Such sub-account shall for all purposes of
this Agreement be treated as a part of the Satellite Escrow Account except as
expressly specified herein.
E. ESCROW AGENT COMPENSATION.
1. Escrow Agent and any Acceptable Replacement Escrow
Agent shall be compensated pursuant to a separate agreement between the Company
and Escrow Agent or such Acceptable Replacement Escrow Agent.
2. Escrow Agent shall be entitled to disburse from the
Satellite Escrow Account all amounts due to Escrow Agent as compensation for
services to be performed by Escrow Agent under this Agreement (as determined by
agreement with the
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Company or pursuant to Section 2(e)(ii)). Such disbursements need not be made
pursuant to a Disbursement Request. The final payment pursuant to this
Section 2(e)(ii) shall be prorated if for a partial month.
F. INVESTMENT OF FUNDS IN SATELLITE ESCROW ACCOUNT. Funds
deposited in the Satellite Escrow Account shall be invested and reinvested upon
the following terms and conditions:
1. ACCEPTABLE INVESTMENTS. All funds held in the
Satellite Escrow Account shall be invested and reinvested in Marketable
Securities in accordance with the Company's written instructions to Escrow
Agent. Escrow Agent shall invest such funds (and all interest earned thereon)
in Marketable Securities designated by the Company from time to time. All such
Marketable Securities shall be assigned to Escrow Agent, for the benefit of the
Company (subject to the security interest of the Trustee), subject to the
provisions of Section 6, with bank guaranty of the assignor's signature.
2. SECURITY INTEREST IN INVESTMENTS. No investment of funds in
the Satellite Escrow Account shall be made unless the Company has certified to
Escrow Agent upon advice of legal counsel that upon such investment, the Trustee
will have a first perfected security interest in the applicable investment (such
advice of legal counsel relating solely to the manner of perfecting a security
interest in a particular type of investment, but not to whether such perfection
has been achieved in the instance). A certificate as to a class of investments
need not be issued with respect to individual investments in securities in that
class if the certificate applicable to the class remains accurate with respect
to such individual investments, which continued accuracy the Escrow Agent may
conclusively assume.
3. INTEREST AND DIVIDENDS. All interest earned and dividends
paid on funds invested in such Marketable Securities shall be deposited in the
Satellite Escrow Account (or reinvested, as the case may be) for the benefit of
the Company, subject to the security interest granted to the Trustee pursuant to
Section 6. Interest earned on the Insurance Proceeds Sub-Account or the Asset
Sales Sub-Account shall remain segregated in such sub-account and shall be
subject to the security interest granted to the Trustee pursuant to Section 6.
G. LIMITATION ON ESCROW AGENT'S RESPONSIBILITIES.
1. Escrow Agent's duties and responsibilities shall be
limited to those expressly set forth in this Agreement and are purely
ministerial in nature. Escrow Agent shall not be subject to, or obligated to
recognize, any other agreement to which the Company, the Trustee, or either of
them may be a party. References in this Agreement to any such agreement are for
identification and definitional purposes only.
2. Escrow Agent shall have no obligation with respect to the
Satellite Escrow Account other than to follow faithfully instructions contained
in this Agreement or delivered to Escrow Agent in accordance with this
Agreement. Escrow Agent may rely and act upon any written notice, instruction,
direction, request, waiver, consent, receipt, or other paper or document
("INSTRUCTIONS") which it believes in good
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faith to be genuine and what it purports to be. Escrow Agent shall be subject
to no liability with respect to the form, execution, or validity of any such
Instruction. The Escrow Agent shall not be liable for verifying the accuracy
of any certifications made by the Company in any Disbursement Request.
3. Escrow Agent shall not be liable for any error of judgment,
or for any act done or step taken or omitted by it in good faith, or for any
mistake of fact or law, or for doing anything which, in good faith, it may do or
refrain from doing in connection with the Satellite Escrow Account, except in
each case in the event of Escrow Agent's gross negligence or wilful misconduct.
H. SUBSTITUTION OF ESCROW AGENT.
1. The Company shall have the right to cause Escrow Agent
to be relieved of its duties hereunder and to select a substitute escrow agent
to serve hereunder (provided such substitute escrow agent is an Acceptable
Replacement Escrow Agent), upon the expiration of thirty (30) days following
delivery of written notice of substitution to Escrow Agent, the Reporting
Accountant and the Trustee. Upon selection of such substitute escrow agent,
such substitute escrow agent and the parties hereto other than the substituted
escrow agent shall enter into an agreement substantially identical to this
Agreement and, thereafter, Escrow Agent shall be relieved of its duties and
obligations to perform hereunder, except that Escrow Agent shall transfer to the
substitute escrow agent upon request therefor all funds and Marketable
Securities maintained by Escrow Agent hereunder and copies of all books,
records, plans and other documents in Escrow Agent's possession relating to such
funds or Marketable Securities or this Agreement.
2. Escrow Agent, or any substitute escrow agent, may at any
time resign and be discharged of its duties and obligations under this Agreement
by giving at least thirty days' notice to the Company and the Trustee. The
Company shall appoint an Acceptable Replacement Escrow Agent or substitute
escrow agent within such thirty day period.
3. If the Company fails to appoint a substitute escrow agent as
required under paragraph (ii) above, Escrow Agent shall deliver all assets held
in the Escrow Account to an Acceptable Replacement Escrow Agent of either its
choosing or as appointed by a court upon application therefor.
4. Escrow Agent shall be discharged from any further duties
under this Agreement upon its transfer of the assets held in the Escrow Account
to an Acceptable Replacement Escrow Agent.
I. SATELLITE ESCROW ACCOUNT STATEMENT. Upon receipt of the
initial escrow funds and upon the request of the Company or the Reporting
Accountant from time to time thereafter (but not less frequently than monthly),
Escrow Agent shall deliver to the Company and the Reporting Accountant a
statement setting forth with reasonable particularity the balance of funds then
in the Satellite Escrow Account (including all sub-accounts and investments) and
the manner in which such funds are invested. The parties hereto irrevocably
instruct Escrow Agent that on the first date upon
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which the balance in the Satellite Escrow Account (including the holdings of
all Marketable Securities) is reduced to zero, Escrow Agent shall deliver to
the Trustee and the Reporting Accountant a notice that the balance in the
Satellite Escrow Account has been reduced to zero.
J. OTHER POWERS OF ESCROW AGENT.
1. Escrow Agent may register any investments held by the
Satellite Escrow Account in its nominee name without increase or decrease of
liability.
2. Escrow Agent may consult with and obtain advice from legal
counsel in the event of any dispute or question as to the construction of any of
the provisions of this Agreement or any of Escrow Agent's duties under this
Agreement, and Escrow Agent shall incur no liability in acting in good faith in
accordance with the advice of such counsel. The fees for consultation with such
counsel shall be a proper expense chargeable to the Satellite Escrow Account
without a Disbursement Request, provided that Escrow Agent provides the Company
with prior written notice of any such charge.
K. INCUMBENCY CERTIFICATE. The Company and the Trustee each
shall provide, and the Company shall cause the Reporting Accountant to provide,
a certificate to Escrow Agent as to the incumbency and signatures of those
individuals authorized to provide from time to time instructions relating to the
Satellite Escrow Account or to execute documents to be provided to Escrow Agent.
The Company and the Trustee also shall promptly notify (and the Company shall
cause the Reporting Accountant to notify) Escrow Agent of any changes to such a
certificate. Escrow Agent may rely on the accuracy and completeness of any such
certificate unless and until it has received an acceptable replacement
certificate. All certificates provided under this Section 2(k) shall be
executed by the applicable party's corporate secretary or assistant secretary
or, if the party does not have a corporate secretary or assistant secretary, by
a comparable officer.
III. REPORTING ACCOUNTANT. During such time as any funds remain in
the Satellite Escrow Account, the Company shall retain the Reporting Accountant
or an Acceptable Replacement Reporting Accountant to perform the duties
described in the form of Reporting Letter attached as EXHIBIT C-1 and EXHIBIT
C-2. The Company shall be responsible for compensating the Reporting
Accountant. The Company shall have the right to cause replacement of the
Reporting Accountant and to select a substitute reporting accountant (provided
such substitute reporting accountant is an Acceptable Replacement Reporting
Accountant), upon the expiration of thirty (30) days following delivery of
written notice of substitution to the Reporting Accountant, Escrow Agent and the
Trustee.
IV. DISBURSEMENTS.
A. BUDGET. The Company shall amend the Budget concurrently
with submission of each Disbursement Request, and shall provide the Reporting
Accountant with such amended Budget. Such amendment shall reflect any material
changes in any line item thereof, including without limitation change orders
under the Satellite Contract or the Launch Contract, and shall reflect
expenditures made since
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the previous Budget, and remaining costs, including, if a replacement
satellite is to be acquired after casualty to a Satellite, costs related to
such replacement satellite. Any such amendment shall be in writing and shall
identify with particularity any line item of "Total Costs" to be increased or
decreased, and the amount of the increase or decrease.
B. PERIODIC REVIEW. The Company shall afford the Reporting
Accountant the right to meet periodically at reasonable times with
representatives of the Company and such employees, consultants or agents of the
Company, or affiliates thereof, as the Reporting Accountant shall reasonably
request. In addition, the Reporting Accountant shall have the right at
reasonable times to review all information (including contracts) supporting the
Company's amendments to the Budget and Disbursement Requests and certificates in
support thereof. The Reporting Accountant shall be permitted to contact any
contractor, subcontractor or supplier of materials or services for purposes of
confirming receipt of disbursements. The Reporting Accountant shall be entitled
to examine, copy and make extracts of the books, records, accounting data and
other documents of the Company, including without limitation bills of sale,
statements, receipts, conditional and unconditional lien releases, contracts or
agreements, which relate to any materials, fixtures or articles incorporated
into the Satellite or to be used or consumed in connection therewith. The
Company agrees to cooperate with the Reporting Accountant in assisting the
Reporting Accountant in the performance of its duties.
C. REGULAR DISBURSEMENTS FROM SATELLITE ESCROW ACCOUNT. If
Escrow Agent has determined that all conditions to disbursement set forth below
have been satisfied with respect to any Disbursement Request, Escrow Agent shall
disburse funds from the Satellite Escrow Account (other than the Insurance
Proceeds Sub-Account and the Asset Sales Sub-Account, except as provided in
Section 4(d) and 4(e)), to the Company in the amounts requested in such
Disbursement Request (for application in accordance with agreements of the
Company, including provisions in the Indenture) provided:
(i) a. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-1 and a copy
of a properly completed Reporting Letter substantially in the form of EXHIBIT
C-1; provided that with regard to the first Disbursement Request under this
Agreement the Company shall not be required to submit a completed Reporting
Letter in the form of EXHIBIT C-1; or
b. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-2 and a copy
of a properly completed Reporting Letter substantially in the form of EXHIBIT
C-1; and
c. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-3 and a copy
of a properly completed Reporting Letter substantially in the form of EXHIBIT
C-1; and
(ii) Escrow Agent shall not have received any notice from
the Trustee that as a result of an Event of Default (as defined in the
Indenture),
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the indebtedness represented by the Notes has been accelerated and has become
due and payable.
D. DISBURSEMENT OF FUNDS FROM THE INSURANCE PROCEEDS
SUB-ACCOUNT. If Escrow Agent has determined that all conditions to
disbursements set forth below have been satisfied with respect to any
Disbursement Request for funds in the Insurance Proceeds Sub-Account, Escrow
Agent shall disburse funds from such Sub-Account to the Company in the amounts
requested in such Disbursement Request (for application in accordance with
agreements of the Company, including provisions in the Indenture) provided:
1. a. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-4, and a copy
of a properly completed Reporting Letter substantially in the form of EXHIBIT
C-2; or
b. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-5; or
c. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-6; and
2. Escrow Agent shall not have received any notice from
the Trustee that, as a result of an Event of Default (as defined in the
Indenture), the indebtedness represented by the Notes has been accelerated and
has become due and payable.
E. DISBURSEMENT OF FUNDS FROM THE ASSET SALES SUB-ACCOUNT. If
Escrow Agent has determined that all conditions to disbursements set forth below
have been satisfied with respect to any Disbursement Request for funds in the
Asset Sales Sub-Account, Escrow Agent shall disburse funds from such Sub-Account
to the Company in the amounts requested in such Disbursement Request (for
application in accordance with agreements of the Company, including provisions
in the Indenture) provided:
1. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-7, and a copy
of a properly completed Reporting Letter substantially in the form of EXHIBIT
C-2; or
a. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-8; or
b. Escrow Agent shall have received from the Company
a properly completed Disbursement Request in the form of EXHIBIT B-9; and
2. Escrow Agent shall not have received any notice from the
Trustee that, as a result of an Event of Default (as defined in the Indenture),
the indebtedness represented by the Notes has been accelerated and has become
due and payable.
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F. LIMITATION ON MONTHLY DISBURSEMENTS. No disbursements made
pursuant to a Disbursement Request may exceed $15 million, except (i) to the
extent that the disbursement is made directly by Escrow Agent (by wire
transfer, check or other direct payment) to a recipient other than EchoStar
or its Subsidiaries, (ii) disbursement of funds to be used to make required
payments under the Satellite Contract and Launch Contract, (iii) disbursement
of funds to be used to make payments of Launch Insurance or In-Orbit
Insurance, or (iv) if made pursuant to a certificate in the form of EXHIBIT
X-0, XXXXXXX X-0, EXHIBIT B-6 or EXHIBIT B-9.
G. COORDINATION WITH ECHOSTAR PARTIES. The Company agrees to
disburse proceeds of its Disbursement Requests to the Company or the relevant
Subsidiary of the Company having need of such proceeds as provided in the
"Description of Senior Secured Notes -- Disbursement of Funds -- Escrow
Accounts" section of the Offering Memorandum. The Company agrees to engage
in such coordination with such EchoStar Parties as shall be necessary and
appropriate to allow the Company to make Disbursement Requests at such times
and in such amounts as shall be consistent with this Agreement and the
Indenture. Through their respective Guarantees of the Company's performance
of this Agreement, the Guarantors have agreed, and hereby agree, that all
information and certificates provided by the Company have received all
necessary review, approval and concurrence by the appropriate EchoStar Party.
V. INDEMNITY. The Company shall indemnify, hold harmless and defend
Escrow Agent and the Trustee, and their respective directors, officers, agents
and employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including defense costs, investigative fees and costs,
legal fees, and claims for damages, arising from Escrow Agent's and the
Trustee's respective performance under this Agreement, except to the extent that
such liability, expense or claim is directly attributable to the gross
negligence or wilful misconduct of such indemnified person. In connection with
any claim, action, obligation, liability or expense for which indemnification is
sought by the Escrow Agent hereunder, the Escrow Agent shall be entitled to
recover its costs as incurred from funds available in the Satellite Escrow
Account.
VI. GRANT OF SECURITY INTEREST.
A. The Company hereby irrevocably grants a first priority
security interest in, pledges, assigns and sets over to the Trustee all of
its right, title and interest in the Satellite Escrow Account, all funds held
therein and all Marketable Securities and replacements thereof and proceeds
therefrom held by Escrow Agent pursuant to Section 2, as well as all rights
of the Company under this Agreement (collectively, the "COLLATERAL"), to
secure all obligations and indebtedness of the Company under the Notes and
any other obligation now or hereafter arising, of every kind and nature, owed
by the Company under the Indenture to the Holders of the Notes or the
Trustee. The Company and the Trustee hereby irrevocably instruct Escrow
Agent to: (i) maintain all of the Collateral free and clear of all liens,
security interests, safekeeping or other charges, demands and claims against
Escrow Agent of any nature whatsoever now or hereafter existing, in favor of
anyone other than the Trustee; (ii) promptly notify the Trustee if Escrow
Agent becomes aware that any person other than the Trustee has a lien or
security interest upon any portion of the Collateral (other than any claim
which Escrow Agent may have against the Satellite Escrow Account for unpaid
fees and expenses); and
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(iii) immediately disburse all funds held in the Satellite Escrow Account to
the Trustee and transfer title to all Marketable Securities held by Escrow
Agent hereunder to the Trustee upon written notice by the Trustee to Escrow
Agent that as a result of an Event of Default under the Indenture, the
indebtedness represented by the Notes has been accelerated and has become due
and payable.
B. Escrow Agent shall act solely as the Trustee's agent in
connection with its duties under this Section 6, notwithstanding any other
provision contained in this Agreement, without any right to receive
compensation from the Trustee and without any authority to obligate the
Trustee or to compromise or pledge its security interest hereunder.
C. Upon demand, the Company will execute and deliver to the
Trustee such instruments and documents as the Trustee may reasonably deem
necessary or advisable to confirm or perfect the rights of the Trustee under
this Agreement and the Trustee's interest in the Collateral. The Trustee
will take all necessary action within its power to preserve and protect the
security interest created hereby as a lien and encumbrance upon the
Collateral.
D. The Company hereby appoints the Trustee as its
attorney-in-fact effective upon and during the continuance of an Event of
Default under the Indenture with full power of substitution to do any act
which the Company is obligated hereby to do, to exercise such rights as the
Company might exercise with respect to the Collateral and to take any action
in the Company's name required or advisable to protect the Trustee's security
interest hereunder.
VII. TERMINATION. This Agreement shall terminate automatically upon
termination of the Indenture or defeasance pursuant to Article 8 thereof,
unless sooner terminated by agreement of the parties hereto; provided,
however, that the obligations of the Company under Section 5 of this
Agreement shall survive termination of this Agreement.
A. WAIVER. Any party hereto may specifically waive any breach of
this Agreement by any other party, but no such waiver shall be deemed to have
been given unless such waiver is in writing, signed by the waiving party and
specifically designating the breach waived, nor shall any such waiver
constitute a continuing waiver of similar or other breaches.
B. INVALIDITY. If, for any reason whatsoever, any one or more of
the provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other
provisions of this Agreement inoperative, unenforceable or invalid, and the
inoperative, unenforceable or invalid provision shall be construed as if it
were written so as to effectuate, to the maximum extent possible, the
parties' intent.
C. ASSIGNMENT. This Agreement is personal to the parties hereto,
and the rights and duties of any party hereunder shall not be assignable
except with
-11-
the prior written consent of the other parties. In any event, this Agreement
shall inure to and be binding upon the parties and their successors and
permitted assigns.
D. BENEFIT. The parties hereto, the holders of the Notes and
their permitted assigns, but no others, shall be bound hereby and entitled to
the benefits hereof.
E. TIME. Time is of the essence in each provision of this
Agreement of which time is an element.
F. CHOICE OF LAW. The existence, validity, construction,
operation and effect of any and all terms and provisions of this Agreement
shall be determined in accordance with and governed by the laws of the State
of New York, without giving effect to conflict of law principles thereof.
G. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the
entire agreement among the parties with respect to the subject matter hereof
and supersedes any and all prior agreements, understandings and commitments,
whether oral or written. This Agreement may be amended only by a writing
signed by duly authorized representatives of all parties.
H. NOTICES. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and
shall be deemed to have been duly given and received, regardless of when and
whether received, either: (a) on the day of hand delivery; or (b) three
business days following the day sent, when sent by United States certified
mail, postage and certification fee prepaid, return receipt requested,
addressed as follows:
To Escrow Agent:
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
To the Trustee:
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
To the Company:
EchoStar DBS Corporation
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
-12-
or at such other address as the specified entity most recently may have
designated in writing in accordance with this section to the others.
I. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
J. CAPTIONS. Captions in this Agreement are for convenience only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
K. AUTHORITY OF THE COMPANY; VALID AND BINDING AGREEMENT. The
Company hereby represents and warrants that this Agreement has been duly
authorized, executed and delivered on its behalf and constitutes the legal,
valid and binding obligation of the Company. The execution, delivery and
performance of this Agreement by the Company does not violate any applicable
law or regulation to which the Company is subject and does not require the
consent of any governmental or other regulatory body to which the Company is
subject, except for such consents and approvals as have been obtained and are
in full force and effect.
L. AUTHORITY OF THE ESCROW AGENT AND THE TRUSTEE; VALID AND
BINDING AGREEMENT. Each of the Escrow Agent and the Trustee hereby
represents and warrants and this Agreement has been duly authorized, executed
and delivered on its behalf and constitutes its legal, valid and binding
obligation.
[SIGNATURE PAGE FOLLOWS]
-13-
IN WITNESS WHEREOF, the parties have executed and delivered this
Satellite Escrow Agreement as of the date first above written.
ESCROW AGENT: FIRST TRUST NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trust Officer
TRUSTEE: FIRST TRUST NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trust Officer
COMPANY: ECHOSTAR DBS CORPORATION
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
-14-
Exhibit A TO SATELLITE ESCROW AGREEMENT
FORM OF BUDGET
AMOUNT EXPENDED
SOURCES (AVAILABLE FUNDS) TOTAL ORIGINAL THROUGH* REMAINING
------------------------- -------------- --------------- ---------
Balance in Satellite Escrow Account $ $ $
Asset Sale Proceeds $ $ $
Insurance Proceeds $ $ $
Interest $ $ $
------------- ------------- -------------
TOTAL $ $ $
AMOUNT EXPENDED
USES TOTAL COSTS THROUGH* REMAINING COSTS
---- ----------- --------------- ---------------
Satellite construction, launch and
insurance $ $ $
Other (to the extent of Asset Sale
Proceeds and Insurance Proceeds) $ $ $
------------- ------------- --------------
TOTAL $ $ $
---------------------
*Insert latest practicable date.
X-0
Xxxxxxx X-0 TO SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for Regular Disbursements from the Satellite Escrow Account prior to Project
Completion)
[Letterhead of the Company]
[Date]
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW AGREEMENT") dated as
of June __, 1997 by and among First Trust National Association, as Trustee
and Escrow Agent, and EchoStar DBS Corporation, a Colorado corporation (the
"COMPANY"). Capitalized terms used herein shall have the meaning given in
the Escrow Agreement.
This letter constitutes a Disbursement Request under the Escrow
Agreement.
The undersigned hereby requests one or more disbursements of funds
contained in the Satellite Escrow Account, for payment of the following items
or for reimbursement to the undersigned for its payment of the following
items:
Individual Items:
(1) Payments under the Satellite Contract: $
----------
(2) Payments under the Launch Contract: $
----------
(3) Payments for insurance of the Satellite: $
----------
(4) Other $
----------
Total disbursement: $
----------
----------
In connection with the requested disbursement, the undersigned hereby
represents, warrants and certifies as follows:
1. All prior disbursements from the Satellite Escrow Account have been
expended toward the items for which they were requested pursuant to prior
Disbursement requests (except that some or all of the funds disbursed within
the past 30
B-1-1
days may not yet have been expended), or have reimbursed the Company for
funds expended by the Company toward such items, without duplication. The
disbursements proposed by this Disbursement Request, and all past
disbursements, shall be, and shall have been, consistent with the
"Description of Senior Secured Notes -- Disbursement of Funds -- Escrow
Accounts" section of the Offering Memorandum.
2. Any disbursements for costs related to construction, launch and
insurance of Echostar IV will be applied toward required payments under the
Satellite Contract or Launch Contract relating to EchoStar IV or toward a
payment on Launch Insurance or In-Orbit Insurance for EchoStar IV.
3. Supporting invoices, certificates and other documentation have been
furnished to the Reporting Accountant, in each case referencing the number of
the applicable payment item described above. All such documentation is
accurate and complete in all material respects.
4. The Trustee continues to have such security interest in the
collateral covered by, or purported to be covered by, the Collateral
Documents, as described in the Offering Memorandum.
5. The Notes have not, as a result of an Event of Default, been
accelerated and become due and payable.
The foregoing representations, warranties and certifications are true
and correct and the Reporting Accountant and Escrow Agent are entitled to
rely on the foregoing in performing their respective duties relating hereto.
Funds transfer instructions for each payee are included on the attached
schedule.
ECHOSTAR DBS CORPORATION
By:
-----------------------------
Name:
Title:
I certify that to the best of my knowledge after due inquiry, the foregoing
representations, warranties and certifications are true and correct.
-----------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
B-1-2
cc: (w/o encls.)
[First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration]
B-1-3
Exhibit B-2 TO SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for Regular Disbursements from the Satellite Escrow Account on or after
Project Completion)
[Letterhead of the Company]
[Date]
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW AGREEMENT") dated as
of June __, 1997 by and among First Trust National Association, as Trustee
and Escrow Agent, and EchoStar DBS Corporation, a Colorado corporation (the
"COMPANY"). Capitalized terms used herein shall have the meaning given in
the Escrow Agreement.
This letter constitutes a Disbursement Request under the Escrow
Agreement.
The undersigned hereby requests one or more disbursements of all
remaining funds contained in the Satellite Escrow Account.
In connection with the requested disbursement, the undersigned hereby
represents, warrants and certifies as follows:
1. All prior disbursements from the Satellite Escrow Account have
been expended toward the items for which they were requested pursuant to
prior Disbursement Requests (except that some or all of the funds disbursed
within the past 30 days may not yet have been expended), or have reimbursed
the Company for funds expended by the Company toward such items, without
duplication. The disbursements proposed by this Disbursement Request, and all
past disbursements, shall be, and shall have been, consistent with the
"Description of Senior Secured Notes -- Disbursement of Funds -- Escrow
Accounts" section of the Offering Memorandum.
2. Project Completion, as defined in the Escrow Agreement, has been
achieved.
3. The Trustee continues to have such security interest in the
collateral covered by, or purported to be covered by, the Collateral
Documents, as is described in the Offering Memorandum.
B-2-1
4. The Notes have not, as a result of an Event of Default, been
accelerated and become due and payable.
5. If the amount of Excess Proceeds to be disbursed exceeds $5
million: The Company has made an Excess Proceeds Offer as required by the
Indenture and funds requested hereby were not required to be applied thereto.
The foregoing representations, warranties and certifications are true
and correct and the Escrow Agent is entitled to rely on the foregoing in
performing duties relating hereto.
Funds transfer instructions for each payee are included on the attached
schedule.
ECHOSTAR DBS CORPORATION
By:
---------------------------
Name:
Title:
I certify that to the best of my knowledge after due inquiry, the foregoing
representations, warranties and certifications are true and correct.
--------------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
cc: (w/o encls.)
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
B-2-2
Exhibit B-3 SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for funds upon receipt of contractual deferrals)
[Letterhead of the Company]
[Date]
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW AGREEMENT") dated as
of June 25, 1997 by and among First Trust National Association, as Trustee
and Escrow Agent, and EchoStar DBS Corporation, a Colorado corporation (the
"COMPANY"). Unless otherwise specified, capitalized terms used herein shall
have the meaning given in the Escrow Agreement.
This letter constitutes a Disbursement Request under the Escrow
Agreement.
The undersigned hereby requests one or more disbursements of funds
contained in the Satellite Escrow Account in an amount set forth below
representing the amount of Additional Payment Obligations (as defined in the
Indenture) deferred to a date after the launch date of the Satellite:
Additional Payment Obligations
deferred to $
------------------ ------------
In connection with the requested disbursement, the undersigned hereby
represents, warrants and certifies as follows:
1. All prior disbursements from the Satellite Escrow Account have
been expended toward the items for which they were requested pursuant to
prior Disbursement requests (except that some or all of the funds disbursed
within the past 30 days may not yet have been expended), or have reimbursed
the Company for funds expended by the Company toward such items, without
duplication. The disbursements proposed by this Disbursement Request, and all
past disbursements, shall be, and shall have been, consistent with the
"Description of Senior Secured Notes -- Disbursement of Funds -- Escrow
Accounts" section of the Offering Memorandum.
B-3-1
2. Supporting invoices, certificates and other documentation have
been furnished to the Reporting Accountant, in each case referencing the
deferred Additional Payment Obligation described above. All such
documentation is accurate and complete in all material respects.
3. The Trustee continues to have such security interest in the
collateral covered by, or purported to be covered by, the Collateral
Documents, as described in the Offering Memorandum.
4. The Notes have not, as a result of an Event of Default, been
accelerated and become due and payable.
The foregoing representations, warranties and certifications are true
and correct and the Reporting Accountant and Escrow Agent are entitled to
rely on the foregoing in performing their respective duties relating hereto.
Funds transfer instructions are included on the attached schedule.
ECHOSTAR DBS CORPORATION
By:
--------------------------
Name:
Title:
B-3-2
I certify that to the best of my knowledge after due inquiry, the foregoing
representations, warranties and certifications are true and correct.
------------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
cc: (w/o encls.)
[First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration]
B-3-3
Exhibit B-4 SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for funds from the Insurance Proceeds Sub-Account to Construct and
Launch Replacement Satellite)
[Letterhead of the Company]
[Date]
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW AGREEMENT") dated as
of June 25, 1997 by and among First Trust National Association, as Trustee
and Escrow Agent, and EchoStar DBS Corporation, a Colorado corporation (the
"COMPANY"). Capitalized terms used herein shall have the meaning given in
the Escrow Agreement.
This letter constitutes a Disbursement Request under the Escrow
Agreement.
The undersigned hereby requests one or more disbursements of funds
contained in the Insurance Proceeds Sub-Account:
Individual Items:
(1) Payments for construction, launch, insurance or purchase of a
replacement satellite, provided such replacement satellite is
of lesser value compared to the insured satellite: $
------
(2) Payments for the construction, launch, insurance or purchase
of a replacement satellite of equal or greater value as
compared to the insured satellite: $
------
Total disbursement: $
======
In connection with the requested disbursement, the undersigned hereby
represents, warrants and certifies as follows:
1. All prior disbursements from the Satellite Escrow Account and
Insurance Proceeds Sub-Account have been expended toward the items for which
they
B-4-1
were requested pursuant to prior Disbursement Requests (except that some or
all of the funds disbursed within the past 30 days may not yet have been
expended), or have reimbursed the Company for funds expended by the Company
toward such items, without duplication. The disbursements proposed by this
Disbursement Request, and all past disbursements, shall be, and shall have
been, consistent with the sections of the Offering Memorandum entitled
"Description of Senior Secured Notes -- Certain Covenants -- Maintenance of
Insurance" and "Description of Senior Secured Notes -- Disbursements of Funds
-- Escrow Account."
2. Any disbursements for costs related to purchase of a replacement
satellite or for construction, launch and insurance of a replacement
satellite will be applied toward required payments under such Satellite
Contract or Launch Contract or towards a payment on Launch Insurance or
In-Orbit Insurance for such replacement satellite.
3. Supporting invoices, certificates and other documentation, in each
case referencing the number of the applicable payment item described above,
have been delivered to the Reporting Accountant. All such documentation is
accurate and complete in all material respects.
4. The Trustee continues to have such security interest in the
collateral covered by, or purported to be covered by, the Collateral
Documents, as described in the Offering Memorandum.
5. The Notes have not, as a result of an Event of Default, been
accelerated and become due and payable.
6. The Company is not required to make or has already made an offer
to repurchase the Notes under the Indenture.
7. The Company has issued all of the certifications required by
Section 4.16 of the Indenture and such certifications are true and correct.
The foregoing representations, warranties and certifications are true
and correct and the Reporting Accountant and Escrow Agent are entitled to
rely on the foregoing in performing their respective duties relating hereto.
Funds transfer instructions for each payee are included on the attached
schedule.
ECHOSTAR DBS CORPORATION
By:
---------------------------
Name:
Title:
B-4-2
I certify that to the best of my knowledge after due inquiry, the foregoing
representations, warranties and certifications are true and correct.
-------------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
cc: (w/o encls.)
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
B-4-3
Exhibit B-5 TO SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for funds from the Insurance Proceeds Sub-Account to apply to an Excess
Proceeds Offer)
[Letterhead of the Company]
[Date]
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW AGREEMENT") dated as
of June 25, 1997 by and among First Trust National Association, as Trustee
and Escrow Agent, and EchoStar DBS Corporation, a Colorado corporation (the
"COMPANY"). Capitalized terms used herein shall have the meaning given in
the Escrow Agreement.
This letter constitutes a Disbursement Request under the Escrow
Agreement.
This letter constitutes a Disbursement Request under the Escrow
Agreement and is for funds from the Insurance Proceeds Sub-Account.
The undersigned has made an Exceeds Proceeds Offer and requests
disbursement of $___________ from the Insurance Proceeds Sub-Account to be
applied to such Excess Proceeds Offer.
In connection with the requested disbursement, the undersigned hereby
represents, warrants and certifies as follows:
1. The disbursements proposed by this Disbursement Request shall be
applied for the use specified above.
2. The Trustee continues to have such security interest in the
collateral covered by, or purported to be covered by, the Collateral
Documents, as is described in the Offering Memorandum.
3. The Notes have not, as a result of an Event of Default, been
accelerated and become due and payable.
B-5-1
4. The Indenture permits the disbursement proposed by this
Disbursement Request.
The foregoing representations, warranties and certifications are true
and correct and the Escrow Agent is entitled to rely on the foregoing in
performing its duties relating thereto.
Funds transfer instructions for each payee are included on the attached
schedule.
ECHOSTAR DBS CORPORATION
By:
---------------------------
Name:
Title:
I certify that to the best of my knowledge after due inquiry, the
foregoing representations, warranties and certifications are true
and correct.
---------------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
cc: (w/o encls.)
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
B-5-2
Exhibit B-6 TO SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for all remaining funds from the Insurance Proceeds Sub-Account)
[Letterhead of the Company]
[Date]
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW AGREEMENT") dated as
of June 25, 1997 by and among First Trust National Association, as Trustee
and Escrow Agent, EchoStar DBS Corporation, a Colorado corporation (the
"COMPANY"). Capitalized terms used herein shall have the meaning given in
the Escrow Agreement.
This letter constitutes a Disbursement Request under the Escrow
Agreement and is for funds from the Insurance Proceeds Sub-Account.
The undersigned hereby requests disbursements to the Company of all
remaining funds contained in the Insurance Proceeds Sub-Account.
In connection with the requested disbursement, the undersigned hereby
represents, warrants and certifies as follows:
1. Any proceeds applied or contractually committed to be applied,
within 180 days of their receipt, to purchase, construction, launch or
insurance of a replacement satellite have been so applied.
or
1. The Company has determined not to proceed with the purchase of or
the construction, launch and insurance of a replacement satellite.
2. The Company has made an Excess Proceeds Offer as required by the
Indenture and funds in the Insurance Proceeds Sub-Account requested hereby
were not required to be applied thereto.
B-6-1
3. The Trustee continues to have such security interest in the
collateral covered by, or purported to be covered by, the Collateral
Documents, as is described in the Offering Memorandum.
4. The Notes have not, as a result of an Event of Default, been
accelerated and become due and payable.
The foregoing representations, warranties and certifications are true
and correct and the Escrow Agent is entitled to rely on the foregoing in
performing its duties relating thereto.
Funds transfer instructions for each payee are included on the attached
schedule.
ECHOSTAR DBS CORPORATION
By:
-----------------------------
Name:
Title:
I certify that to the best of my knowledge after due inquiry, the
foregoing representations, warranties and certifications are true
and correct.
-------------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
cc: (w/o encls.)
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
B-6-2
Exhibit B-7 TO SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for funds from the Asset Sales Sub-Account to make Receiver
Subsidies (as defined in the Indenture), buy or lease satellite
frequencies at orbital slots, purchase tangible assets, or purchase
a replacement satellite)
[Letterhead of the Company]
[Date]
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW
AGREEMENT") dated as of June 25, 1997 by and among First Trust
National Association, as Trustee and Escrow Agent, and EchoStar DBS
Corporation, a Colorado corporation (the "COMPANY"). Capitalized
terms used herein shall have the meaning given in the Escrow
Agreement.
This letter constitutes a Disbursement Request under the
Escrow Agreement.
The undersigned hereby requests one or more disbursements
of funds contained in the Asset Sales Sub-Account:
Individual Items:
(1) Payments for Receiver Subsidies: $
----------
(2) Payments for the purchase or lease of satellite
frequencies at orbital slots: $
----------
(3) Payments for the purchase of tangible assets to be
used in the business of Echostar permitted under
Section 4.18 of the Indenture: $
----------
(4) If the Company has sold any of its satellites after
launch, payments for the purchase of a replacement
satellite: $
----------
Total disbursement: $
==========
In connection with the requested disbursement, the
undersigned hereby represents, warrants and certifies as follows:
B-7-1
1. All prior disbursements from the Satellite Escrow
Account and Asset Sales Sub-Account have been expended toward the
items for which they were requested pursuant to prior Disbursement
Requests (except that some or all of the funds disbursed within the
past 30 days may not yet have been expended), or have reimbursed
the Company for funds expended by the Company toward such items,
without duplication. The disbursements proposed by this
Disbursement Request, and all past disbursements, shall be, and
shall have been, consistent with the sections of the Offering
Memorandum entitled "Description of Senior Secured Notes -- Certain
Covenants -- Asset Sales" and "Description of Senior Secured Notes
-- Disbursement of Funds -- Escrow Accounts."
2. Funds disbursed for making Receiver Subsidies, for
the purchase or lease of satellite frequencies at orbital slots,
for the purchase of tangible assets to be used in the business of
EchoStar and, if the Company has sold any of its satellites after
launch, for the purchase of a replacement satellite will be applied
toward required payments under contracts relating to such
disbursements.
3. Supporting invoices, certificates and other
documentation, in each case referencing the number of the
applicable payment item described above, have been delivered to the
Reporting Accountant. All such documentation is accurate and
complete in all material respects.
4. The Trustee continues to have such security interest
in the collateral covered by, or purported to be covered by, the
Collateral Documents, as described in the Offering Memorandum.
5. The Notes have not, as a result of an Event of
Default, been accelerated and become due and payable.
The foregoing representations, warranties and
certifications are true and correct and the Reporting Accountant
and Escrow Agent are entitled to rely on the foregoing in
performing their respective duties relating hereto.
Funds transfer instructions for each payee are included
on the attached schedule.
ECHOSTAR DBS CORPORATION
By:
---------------------------
Name:
Title:
I certify that to the best of my knowledge after due inquiry, the
foregoing representations, warranties and certifications are true
and correct.
-------------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
B-7-2
cc: (w/o encls.)
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
B-7-3
Exhibit B-8 TO SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for funds from the Asset Sales Sub-Account to apply to an
Excess Proceeds Offer)
[Letterhead of the Company]
[Date]
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW
AGREEMENT") dated as of June 25, 1997 by and among First Trust
National Association, as Trustee and Escrow Agent, and EchoStar DBS
Corporation, a Colorado corporation (the "COMPANY"). Capitalized
terms used herein shall have the meaning given in the Escrow
Agreement.
This letter constitutes a Disbursement Request under the
Escrow Agreement.
This letter constitutes a Disbursement Request under the
Escrow Agreement and is for funds from the Asset Sales Sub-Account.
The undersigned has made an Exceeds Proceeds Offer and
requests disbursement of $_______ from the Asset Sales Sub-Account
to be applied to such Excess Proceeds Offer.
In connection with the requested disbursement, the
undersigned hereby represents, warrants and certifies as follows:
1. The disbursements proposed by this Disbursement
Request shall be applied for the use specified above.
2. The Trustee continues to have such security interest
in the collateral covered by, or purported to be covered by, the
Collateral Documents, as is described in the Offering Memorandum.
3. The Notes have not, as a result of an Event of
Default, been accelerated and become due and payable.
B-8-1
4. The Indenture permits the disbursement proposed by
this Disbursement Request.
The foregoing representations, warranties and
certifications are true and correct and the Escrow Agent is
entitled to rely on the foregoing in performing its duties relating
thereto.
Funds transfer instructions for each payee are included
on the attached schedule.
ECHOSTAR DBS CORPORATION
By:
------------------------------
Name:
Title:
I certify that to the best of my knowledge after due inquiry, the
foregoing representations, warranties and certifications are true
and correct.
----------------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
cc: (w/o encls.)
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
B-8-2
Exhibit B-9 TO SATELLITE ESCROW AGREEMENT
FORM OF DISBURSEMENT REQUEST
(for all remaining funds from the Asset Sales Sub-Account)
[Letterhead of the Company]
[Date]
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Disbursement Request No. ___
Ladies and Gentlemen:
We refer to the Satellite Escrow Agreement ("ESCROW
AGREEMENT") dated as of June 25, 1997 by and among First Trust
National Association, as Trustee and Escrow Agent, EchoStar DBS
Corporation, a Colorado corporation (the "COMPANY"). Capitalized
terms used herein shall have the meaning given in the Escrow
Agreement.
This letter constitutes a Disbursement Request under the
Escrow Agreement and is for funds from the Asset Sales Sub-Account.
The undersigned hereby requests disbursements to the
Company of all remaining funds contained in the Asset Sales
Sub-Account.
In connection with the requested disbursement, the
undersigned hereby represents, warrants and certifies as follows:
1. Any proceeds applied or contractually committed to
be applied, within 180 days of their receipt, to the making of
Receiver Subsidies, the purchase or lease of satellite frequencies
at orbital slots, the purchase of tangible assets to be used in the
business of EchoStar or, if permitted under Section 4.10 of the
Indenture, the purchase of a replacement satellite have been so
applied.
or
1. The Company has determined not to proceed with the
making of Receiver Subsidies, the purchase or lease of satellite
frequencies at orbital slots, the purchase of tangible assets to be
used in the business of EchoStar or, if permitted under Section
4.10 of the Indenture, the purchase of a replacement satellite.
2. The Company has made an Excess Proceeds Offer as
required by the Indenture and funds in the Asset Sale Sub-Account
requested hereby were not required to be applied thereto.
B-9-1
3. The Trustee continues to have such security interest
in the collateral covered by, or purported to be covered by, the
Collateral Documents, as is described in the Offering Memorandum.
4. The Notes have not, as a result of an Event of
Default, been accelerated and become due and payable.
The foregoing representations, warranties and
certifications are true and correct and the Escrow Agent is
entitled to rely on the foregoing in performing its duties relating
thereto.
Funds transfer instructions for each payee are included
on the attached schedule.
ECHOSTAR DBS CORPORATION
By:
-----------------------------
Name:
Title:
I certify that to the best of my knowledge after due inquiry, the
foregoing representations, warranties and certifications are true
and correct.
---------------------------------
Chief Financial Officer
[or other senior officer
responsible for financial
matters]
cc: (w/o encls.)
First Trust National Association, as Trustee
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Corporate Trust Administrator
B-9-2
Exhibit C-1
Form of Reporting Accountant Letter for
Disbursement Request in form of Exhibit B-1 or Exhibit B-2
[Date]
Echostar Satellite Broadcasting Corporation
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: _______________
Dear Sirs:
We have performed an audit of EchoStar DBS Corporation
("THE COMPANY") as of and for the year ended December 31, 199_, and
have issued our report thereon dated February __, 199_. We have
not audited any financial statements of the Company as of any date
or for any period subsequent to December 31, 199_; although we have
conducted an audit for the year ended December 31, 199_, the
purpose (and, therefore, the scope) of the audit was to enable us
to express our opinion on the combined and consolidated financial
statements as of December 31, 199_, and for the year then ended,
but not on the financial statements for any interim period within
that year. Therefore, we are unable to and do not express any
opinion on the unaudited combined and consolidated balance sheets
as of March 31, 199_, and the unaudited combined and consolidated
statements of income, stockholders' equity and cash flows for the
three-month period ended March 31, 199 included in the Offering
Memorandum or on the financial position, results of operations, or
cash flows as of any date or for any period subsequent to December
31, 199_. [Dates to change as appropriate]
We have received a copy of the Company's Disbursement
Request sequentially numbered ___ and dated __________, 19__ and
certain supporting invoices, certificates and other documentation
as referred to therein. We have also received all previous
sequentially numbered Disbursement Requests and supporting
invoices, certificates and other documentation as referred to
therein ("PAST DISBURSEMENT REQUESTS").
At your request, we have applied the following agreed-upon procedures
to the Past Disbursement Requests and the attached Schedules in conjunction
with the Company's Senior Secured Notes Due 2002 (the "NOTES").
PAST DISBURSEMENT REQUESTS:
- Agreed disbursements requested to supporting
invoices, certificates and other documentation furnished
to us by the Company
EXHIBIT A - USES
- Agreed paid to date amounts to purchase
orders/contracts, etc., which support amount disbursed
- Agreed estimates to complete to budget and
confirmation/contracts as appropriate
C-1-1
- Recalculated totals
EXHIBIT A - SOURCES
- Agreed escrow balance with escrow agent
- Agreed cash and cash equivalents to management
schedule/general ledger
- Agreed remaining cost to complete project to
remaining funds
- Agreed amounts stated to be due to Company
under contracts for EchoStar IV from __________, 19__ to
__________, 19__ to contracts
- Recomputed totals
We noted no differences except as needed below, if any.
Because the above procedures do not constitute an audit
made in accordance with generally accepted auditing standards, we
do not express an opinion on any of the elements referred to above.
Had we performed additional procedures or had we made an audit of
the financial statements of EchoStar DBS Corporation in accordance
with generally accepted auditing standards as of or for any period
subsequent to December 31, 199_, matters might have come to our
attention that would have been reported to you. This report
relates only to the elements specified above and does not extend to
any financial statements of EchoStar DBS Corporation taken as a
whole. [Dates to change as appropriate]
This letter is solely for the information of, and
assistance to, the initial purchasers, bond counsel and the other
above-named addressees in connection with the offering of the Notes
covered by the Offering Memorandum, and, without our prior consent,
is not to be used, circulated, quoted or otherwise referred to
within or without this group for any other purpose, including, but
not limited to, the registration, purchase or sale of securities.
This letter is not to be filed with or referred to in whole or in
part in any document, except that reference may be made to it in
the Offering Memorandum, the Satellite Escrow Agreement, the
Purchase Agreement, or in any list of closing documents pertaining
to the offering of the Notes covered by the Offering Memorandum.
Very truly yours,
XXXXXX XXXXXXXX LLP
cc: First Trust National Association, as Escrow Agent
C-1-2
Exhibit C-2
Form of Reporting Accountant Letter for
Disbursement Request in form of Exhibit B-4 or B-7
DRAFT
_____________, 199_
Echostar Satellite Broadcasting Corporation
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: ________________
Dear Sirs:
We have performed an audit of EchoStar DBS Corporation
("THE COMPANY") as of and for the year ended December 31, 199_, and
have issued our report thereon dated February __, 199_. We have
not audited any financial statements of the Company as of any date
or for any period subsequent to December 31, 199_; although we have
conducted an audit for the year ended December 31, 199_, the
purpose (and, therefore, the scope) of the audit was to enable us
to express our opinion on the combined and consolidated financial
statements as of December 31, 199_, and for the year then ended,
but not on the financial statements for any interim period within
that year. Therefore, we are unable to and do not express any
opinion on the unaudited combined and consolidated balance sheets
as of March 31, 199_ and the unaudited combined and consolidated
statements of income, stockholders' equity and cash flows for the
three-month period ended March 31, 199_ included in the Offering
Memorandum or on the financial position, results of operations, or
cash flows as of any date or for any period subsequent to December
31, 199_. [Dates to change as appropriate]
We have received a copy of the Company's Disbursement
Request sequentially numbered ____ and dated __________, 19__ and
certain supporting invoices, certificates and other documentation
as referred to therein. We have also received all previous
sequentially numbered Disbursement Requests and supporting
invoices, certificates and other documentation as referred to
therein ("PAST DISBURSEMENT REQUESTS").
At your request, we have applied the following agreed
upon procedures to the Past Disbursement Requests and the attached
Schedules in conjunction with the Company's Senior Secured Notes
Due 2002 (the "NOTES").
PAST DISBURSEMENT REQUESTS:
- Agreed disbursements requested to supporting
invoices, certificates and other documentation furnished
to us by the Company
EXHIBIT A
C-2-1
- Agreed paid to date amounts to purchase
orders/contracts, etc., which support amount distributed
- Agreed estimates to complete to budget and
confirmation/contracts as appropriate
- Recalculated totals
We noted no differences except as noted below, if any.
Because the above procedures do not constitute an audit
made in accordance with generally accepted auditing standards, we
do not express an opinion on any of the elements referred to above.
Had we performed additional procedures or had we made an audit of
the financial statements of EchoStar DBS Corporation in accordance
with generally accepted auditing standards as of or for any period
subsequent to December 31, 199_, matters might have come to our
attention that would have been reported to you. This report relates
only to the elements specified above and does not extend to any
financial statements of EchoStar DBS Corporation taken as a whole.
[Dates to change as appropriate]
This letter is solely for the information of, and
assistance to, the initial purchasers, bond counsel and the other
above-named addresses in connection with the offering of the Notes
covered by the Offering Memorandum, and, without our prior consent,
is not to be used, circulated, quoted or otherwise referred to
within or without this group for any other purpose, including, but
not limited to, the offering, purchase or sale of securities. This
letter is not to be filed with or referred to in whole or in part
in any document, except that reference may be made to it in the
Offering Memorandum, the Satellite Escrow Agreement, the Purchase
Agreement, or in any list of closing documents pertaining to the
offering of the Notes covered by the Offering Memorandum.
Very truly yours,
XXXXXX XXXXXXXX LLP
cc: First Trust National Association, as Escrow Agent