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Exhibit 4.5
ACCOUNT CONTROL AGREEMENT
THIS ACCOUNT CONTROL AGREEMENT, dated as of JULY 31, 1998 (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Agreement"), is by and among Golden Sky Systems, Inc., a Delaware corporation
(the "Debtor"), State Street Bank and Trust Company of Missouri, N.A. ("State
Street Missouri"), in its capacity as Escrow Agent under that certain Escrow
Agreement of even date between the Debtor and State Street Missouri, in its
respective capacities as Escrow Agent and as Trustee, each as defined therein
(the "Escrow Agreement"), acting for the benefit of said Trustee (State Street
Missouri, acting in such capacity as Escrow Agent, the "Escrow Agent") and State
Street Bank and Trust Company, a Massachusetts trust company, acting as
custodian and securities intermediary hereunder (the "Securities Intermediary").
Capitalized terms used herein but not otherwise defined herein shall
have the meanings assigned to such terms in, or incorporated by reference into,
the Escrow Agreement. All references herein to the "UCC" shall, unless otherwise
specified mean the Uniform Commercial Code as in effect in the Commonwealth of
Massachusetts.
IN CONSIDERATION of the mutual covenants herein contained and the
payment by State Street-Missouri of FIVE DOLLARS ($5.00) each to the Debtor and
to the Securities Intermediary, it is hereby agreed as follows:
SECTION 1. Establishment of Securities Account. The Securities
Intermediary hereby confirms that (i) an account, identified by account number
______________ and in the name of "State Street Bank and Trust Company of
Missouri, N.A., as Escrow Agent/Escrow Account pledged by Golden Sky Systems
Inc., to State Street Bank and Trust Company of Missouri, N.A., as Trustee"
(such account and any successor account the "Securities Account") has been
established with and is held by the Securities Intermediary, (ii) the Securities
Account is a "securities account" as such term is defined in Section 8-501(a) of
the UCC, (iii) the Securities Intermediary shall treat the Escrow Agent as
entitled to exercise the rights that comprise any financial asset credited to
the Securities Account, (iv) all property delivered to the Securities
Intermediary pursuant to the Escrow Agreement and required by the terms thereof
to be credited to the Securities Account will be promptly credited to the
Securities Account, and (v) all securities (or other investment property or
financial assets credited into the Securities Account) underlying any financial
assets credited to the Securities Account shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name of the Securities
Intermediary, and in no case will any financial asset credited to the Securities
Account be registered in the name of the Debtor, payable to the order of the
Debtor or specially indorsed to the Debtor (except to the extent the foregoing
have been specially indorsed to the Securities Intermediary or in blank).
SECTION 2. "Financial Assets" Election. The Securities Intermediary
hereby agrees that each item of property (whether investment property, financial
asset, security, instrument or cash) credited to the Securities Account shall be
treated as a "financial asset" within the meaning of Section 8-102(a)(9) of the
UCC.
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SECTION 3. Entitlement Orders. If at any time the Securities
Intermediary shall receive an "entitlement order" (within the meaning of Section
8-102(a)(8) of the UCC) issued by the Escrow Agent and relating to the
Securities Account, the Securities Intermediary shall comply with such
entitlement order without further consent by the Debtor or any other person.
SECTION 4. Subordination of Lien; Waiver of Set-Off. In the event that
the Securities Intermediary has or subsequently obtains by agreement, operation
of law or otherwise a security interest in or lien, claim, encumbrance of right
of set-off against the Securities Account or any security entitlement credited
thereto, the Securities Intermediary hereby waives and releases any such
security interest, lien, claim, encumbrance or right of set-off or recoupment
that it may have or may obtain with respect to the Securities Account or any
financial asset credited thereto.
SECTION 5. Choice of Law. Both this Agreement and the Securities
Account and the securities entitlements related thereto shall be governed by the
laws of the Commonwealth of Massachusetts. Regardless of any provision in any
other agreement, for purposes of Section 8-110(e) of UCC, the Commonwealth of
Massachusetts shall be deemed to be the Securities Intermediary's "jurisdiction"
for purposes of the Securities Account and the securities entitlements related
thereto.
SECTION 6. Duties of Securities Intermediary: Conflict with other
Agreements.
(a) The Securities Intermediary shall have no duties other than those
expressly set forth herein and applicable under the UCC; without limiting the
foregoing, the Securities Intermediary shall have no liability for the actions
or omissions of the Escrow Agent, or for following any instruction of the Escrow
Agent not in violation of the terms hereof, and shall have no responsibility
for, and shall have no duty to monitor, determine or compel, compliance with the
terms of the Escrow Agreement.
(b) There are no other agreements entered into between the Securities
Intermediary and the Debtor with respect to the Securities Account except for
the Security Agreement. In the event of any conflict between this Agreement (or
any portion thereof) and any other agreement now existing or hereafter entered
into, the terms of this Agreement shall prevail.
SECTION 7. Tax Reporting. All items of income, gain, expense and loss
recognized in the Securities Account which the Securities Intermediary
determines it is required by law to report to the Internal Revenue Service or
any state or local taxing authorities shall be reported to the Internal Revenue
Service or such state and local taxing authorities under the name and taxpayer
identification number of the Debtor.
SECTION 8. Representations, Warranties and Covenants of the Securities
Intermediary. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
(i) The Securities Account has been established as set forth in
Section 1 above and the Securities Account will be maintained in the manner set
forth herein until termination of this Agreement. The Securities Intermediary
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shall not change the name or account number of the Securities Account without
the prior written consent of the Escrow Agent. No financial asset credited to
the Securities Account is or will be registered in the name of the Debtor,
payable to its order, or specially endorsed to it, except to the extent such
financial asset has been endorsed to the Securities Intermediary or in blank.
This Securities Account Control Agreement is a valid and legally binding
obligation of the Securities Intermediary.
(ii) The Securities Intermediary has not entered into, and until the
termination of this agreement, will not enter into, any agreement with any other
person relating to any of the Securities Account and/or any financial assets
credited thereto pursuant to which it has agreed to comply with entitlement
orders (as defined in Section 8-102(a)(8) of the UCC) of such person, other than
the Escrow Agent. The Securities Intermediary has not entered into any other
agreement with the Debtor or Escrow Agent purporting to limit or condition the
obligation of the Securities Intermediary to comply with entitlement orders as
set forth in Section 3 hereof. The Securities Intermediary is a "securities
intermediary" as defined in Section 8-102(a)(14) of the UCC and is acting in
such capacity hereunder.
SECTION 9. Securities Account Statement. The Securities Intermediary
shall deliver to the Escrow Agent a statement setting forth with reasonable
particularity the balance of funds then in the Securities Account and the manner
in which such funds are invested ("Securities Account Statement"). The
Securities Account Statement shall be delivered by the Securities Intermediary
20 days after the date of this Agreement and every 30 days thereafter until the
Applicable Date (as defined in the Escrow Agreement), at which point the
Securities Account Statement shall be delivered at least 35 days prior to each
Interest Payment Date, as defined in the Escrow Agreement (initially February 1
and August 1 of each year, commencing February 1, 1999).
SECTION 10. Amendments; Sealed Instrument. No amendment or
modification of this Agreement or waiver of any right hereunder shall be binding
on any party hereto unless it is in writing and is signed by all of the parties
hereto. This Agreement is intended by each of the parties hereto to take effect
as an instrument under seal.
SECTION 11. Successors. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
corporate successors or heirs and personal representatives.
SECTION 12. Notices. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two (2) days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address provided for such Person in Section 8(g) of the Escrow
Agreement and as to the Securities Intermediary, at Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate Trust Department.
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SECTION 13. Termination. The rights and powers granted herein to the
Escrow Agent have been granted in order to perfect its security interests in the
Securities Account are powers coupled with an interest and will neither be
affected by the bankruptcy of the Debtor nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until the interests of the Escrow Agent, for the benefit of the Trustee, in the
Securities Account have been terminated pursuant to the terms of the Escrow
Agreement and the Escrow Agent has notified the Securities Intermediary of such
termination in writing.
SECTION 14. Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Control
Agreement as of the 31st day of July, 1998.
GOLDEN SKY SYSTEMS, INC., as
Debtor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
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XXXXX XXXXXX XXXX XXX XXXXX
XXXXXXX XX XXXXXXXX,X.X.,
as the Escrow Agent
By: /s/ X. Xxxxxxxx
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Name: X. Xxxxxxxx
Title: Assistant Vice President
STATE STREET BANK AND TRUST
COMPANY, as Securities Intermediary
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
