FIRST AMENDMENT TO PURCHASE AGREEMENT
This First Amendment (this "First Amendment") to the Purchase Agreement
(the "Purchase Agreement") dated as of November 30, 1998, by and among
American Sky Broadcasting, LLC, a limited liability company organized under
the laws of the State of Delaware ("ASkyB"), The News Corporation Limited, a
corporation organized under the laws of South Australia ("News Corporation"),
MCI Telecommunications Corporation, a corporation organized under the laws of
the State of Delaware ("MCI"), and EchoStar Communications Corporation, a
corporation organized under the laws of the State of Nevada ("Seller"), is
entered into as of June 23, 1999. All capitalized terms not defined in this
First Amendment shall have the meanings ascribed to them in the Purchase
Agreement.
WHEREAS, each of the Transferors and Seller desire to supplement and
amend certain provisions of the Purchase Agreement in order to effect the
intent and understanding of the Parties with respect to the matters set forth
below.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, and for other good and valuable consideration the adequacy and
receipt of which are hereby acknowledged, the Parties hereby agree as follows:
1. CLOSING DATE. The Parties hereby agree that, provided that all conditions
to the obligations to the Parties to consummate the transactions
contemplated by the Purchase Agreement have been satisfied or waived on or
prior to such date, the Closing Date shall be June 24, 1999.
2. AMENDMENTS.
(a) Section 1 of the Purchase Agreement is hereby amended as follows:
(i) by amending the definition of "Collateral Agreements" to
delete therefrom the references to the "Components License
Agreement" and the "Set Top Box Agreement;"
(ii) by deleting the defined term "Components License Agreement" in
its entirety; and
(iii) by deleting the defined term "Set Top Box Agreement" in its
entirety.
(b) Section 2(c) of the Purchase Agreement is hereby amended by deleting
the reference therein to Section 5(g).
(c) Section 6(a) of the Purchase Agreement is hereby amended by deleting
subsection (ix) thereof in its entirety.
(d) Section 6(b) of the Purchase Agreement is hereby amended by deleting
subsections (ix) and (xi) thereof in their entirety.
(e) Section 5 of the Purchase Agreement is hereby amended by deleting
subsection (g)(i) thereof in its entirety.
(f) Exhibits A and F to the Purchase Agreement are hereby deleted in their
entirety.
3. ADDITIONAL REPRESENTATION OF THE TRANSFERORS. Each of ASkyB, News
Corporation and MCI, jointly and severally, represents and warrants to
Seller, that:
(a) As of the date hereof, (i) the aggregate of all remaining unpaid
amounts that are due or scheduled to become due under the Sony
Contract, as in effect as of the date hereof, is US$15,680,000 (the
"Remaining Amount") and (ii) the Transferors have paid an aggregate of
US$33,320,000 pursuant to the Sony Contract.
(b) As of the date hereof, a binder (the "Binder") is in place for
Seller's Launch Insurance covering Sky I and Sky II.
(c) Except for any Intellectual Property being transferred to Seller
pursuant to the Assigned Contracts, there is no other Intellectual
Property in which any Transferor has any right, title or interest
which is required to be transferred to Seller pursuant to Section
2(b)(vi) of the Purchase Agreement.
4. ADDITIONAL AGREEMENTS OF THE PARTIES.
(a) The Parties hereto agree that, provided the Closing occurs on June 24,
1999, then for purposes of calculating the Current Market Price per
share of Class A Common Stock pursuant to Section 2(a)(ii) of the
Purchase Agreement and pursuant to Section 4(b) of this First
Amendment, the Current Market Price shall be the average of (i) the
Current Market Price determined by using the 20-day trading period
commencing on May 25, 1999 and ending on June 22, 1999 and (ii) the
Current Market Price determined by using the 20-day trading period
commencing on May 26, 1999 and ending on June 23, 1999.
(b) The Parties further agree that the number of shares of Class A Common
Stock issuable pursuant to Section 2(a) of the Purchase Agreement
shall be reduced by the number of shares of Class A Common Stock
having a total market value (based on Current Market Price) equal to
the sum of US$45,680,000 (the "Offsetting Amount"). In the event that
for any reason the Closing does not occur on June 24, 1999, then the
Offsetting Amount shall be reduced dollar for dollar to the extent
that the Transferors make any scheduled payments in respect of the
Remaining Amount due under the Sony Contract (as in effect on the date
hereof) during the period from June 24, 1999 to the Closing Date;
provided that (i) such scheduled payment by the Transferors was made
after consultation with, and after having obtained the prior written
consent of, Seller (such consent not to be unreasonably withheld,
conditioned or delayed) and (ii) the aggregate reduction in the
Offsetting Amount shall not exceed the Remaining Amount. The aggregate
number of shares issuable to each of the ASkyB Buyer and the MCI Buyer
shall be reduced on a pro rata basis.
(c) The Transferors acknowledge receipt of Seller's letter, dated June
3, 1999, notifying the Transferors that Seller is designating certain
▇▇▇▇▇▇▇ Contracts as Excluded Contracts pursuant to Section 5(c)(iii)
of the Purchase Agreement and the Transferors hereby waive the 30-day
notice requirement set forth in such Section 5(c)(iii) with respect to
the ▇▇▇▇▇▇▇ Contracts identified in such letter.
(d) The Transferors acknowledge and agree that Seller will continue to
negotiate the terms of Seller's Launch Insurance and that the
Transferors will pay the premiums for such Seller's Launch Insurance,
in an amount not to exceed the premiums set forth in the Binder, as
and when such premiums become due and in any event no later than 30
days before the scheduled launch date of Sky I or Sky II, as
applicable.
(e) In the event that the Transferors are unable to procure the necessary
consents to assignment of the Sony Contract, then, in consideration
for Seller receiving all of the benefits under the Sony Contract and
having the right to direct all actions to be taken in connection with
the Sony Contract as provided in Section 5(g)(ii) of the Purchase
Agreement, Seller agrees to assume the obligations and liabilities of
ASkyB under the Sony Contract; provided that the assumption by Seller
of such obligations and liabilities shall not constitute a waiver by
Seller of its right to indemnification by the Transferors pursuant to
Section 7 of the Purchase Agreement for any breach by the Transferors
of any representation or warranty set forth in the Purchase Agreement.
If the Transferors have not assigned the Sony Contract pursuant to the
Purchase Agreement, then from and after the Closing Date the
Transferors shall, at any time and from time to time, take any and all
actions that Seller may reasonably request the Transferors to take in
connection with the Sony Contract.
5. REMEDIES FOR BREACH OF THIS FIRST AMENDMENT. The Parties agree that the
provisions set forth in Section 7 of the Purchase Agreement are hereby
incorporated herein by reference in their entirety and shall apply with
equal force and effect to all covenants, agreements, representations and
warranties contained in this First Amendment.
6. EFFECTIVENESS OF PURCHASE AGREEMENT. Except as set forth in this First
Amendment, the Purchase Agreement shall remain in full force and effect.
7. GOVERNING LAW. This First Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
8. COUNTERPARTS This First Amendment may be executed in one or more
counterparts, each of
which shall be deemed an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this First
Amendment as of the date first above written.
AMERICAN SKY BROADCASTING, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
THE NEWS CORPORATION LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
MCI TELECOMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
General Counsel
ECHOSTAR COMMUNICATIONSCORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President, General
Counsel, Secretary and Director
