STOCK PLEDGE AGREEMENT
This STOCK PLEDGE AGREEMENT ("AGREEMENT") is made and entered into
as of June 25, 1997 by ECHOSTAR COMMUNICATIONS CORPORATION, a Nevada
corporation having its principal office at 00 Xxxxxxxxx Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000 ("PLEDGOR"), in favor of FIRST TRUST NATIONAL
ASSOCIATION (the "TRUSTEE"), as trustee under the Indenture dated as of the
date hereof between EchoStar DBS Corporation (the "PLEDGED COMPANY") and the
Trustee ("INDENTURE").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the meanings given in the Indenture; and
WHEREAS, Pledgor is the owner of the outstanding shares of stock (the
"PLEDGED SHARES") set forth on SCHEDULE I hereto, of the company named on such
SCHEDULE I (the "PLEDGED COMPANY"); and
WHEREAS, Pledged Company intends to issue its Senior Secured Notes due
2002 ("NOTES"), as further described in the Indenture; and
WHEREAS, a portion of the proceeds from the sale of the Notes will be
contributed to an escrow account which may, subject to certain conditions, be
drawn upon by the Pledged Company to make required payments under the Satellite
Contracts and Launch Contracts, as well as to make payments of Launch Insurance
or In-Orbit Insurance; and
WHEREAS, the Indenture requires that Pledgor (i) pledge to the Trustee
and grant to the Trustee a security interest in the Pledged Collateral (as
defined herein) and (ii) execute and deliver this Agreement in order to secure
the payment of all obligations of the Pledged Company and the Guarantors (as
defined in the Indenture), now existing or hereafter arising, owing to the
Trustee and the holders of the Notes under the Notes, the Indenture, this
Agreement, and the other Collateral Documents, whether for principal, interest,
fees or expenses, and each obligation of performance under such agreements (all
such obligations being herein called the "OBLIGATIONS").
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AGREEMENT
NOW THEREFORE, in consideration of the premises and in order to induce
the Initial Purchasers to purchase the Notes, Pledgor hereby agrees with the
Trustee for its benefit as follows:
1. PLEDGE. Pledgor hereby pledges to the Trustee, and grants to the
Trustee a continuing first priority and perfected security interest in the
following (the "PLEDGED COLLATERAL"):
(a) the Pledged Shares and the certificates representing the
Pledged Shares, and all proceeds of any of the Pledged Shares including all
dividends, cash, instruments, subscriptions, warrants and any other rights and
options and other property from time to time received, receivable or otherwise
distributed or declared in respect of or in exchange for, any or all of the
Pledged Shares; and
(b) all additional shares of stock of, or equity interest in,
the Pledged Company from time to time acquired by Pledgor in any manner, and the
certificates representing such additional shares (any such additional shares
shall constitute part of the Pledged Shares under and as defined in this
Agreement), and all proceeds of any of such additional Pledged Shares, including
all dividends, cash, instruments, subscriptions, warrants and any other rights
and options and other property from time to time received, receivable or
otherwise distributed or declared in respect of or in exchange for, any or all
of such additional Pledged Shares.
2. SECURITY FOR OBLIGATIONS. This Agreement secures the payment and
performance of all of the Obligations.
3. DELIVERY OF PLEDGED COLLATERAL. All certificates or instruments
representing or evidencing the Pledged Collateral shall be delivered to and held
by or on behalf of the Trustee and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Trustee.
4. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants
as follows:
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(a) The Pledged Shares have been duly authorized and validly
issued and are fully paid and non-assessable.
(b) Pledgor is the legal and beneficial owner of the Pledged
Collateral, free and clear of any Lien on the Pledged Collateral.
(c) Upon the delivery to the Trustee of the Pledged Collateral,
the pledge of the Pledged Collateral pursuant to this Agreement creates a valid
and perfected first priority security interest in such Pledged Collateral
securing the payment and performance of the Obligations for the benefit of the
Trustee, provided the Pledged Collateral is held in the possession of the
Trustee.
(d) No authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required either (i) for the pledge by Pledgor of the Pledged Collateral pursuant
to this Agreement or for the execution, delivery or performance of this
Agreement by Pledgor or (ii) for the exercise by the Trustee of the voting or
other rights provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement (except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities and except as may be required by the Federal Communications
Commission ("FCC") under certain circumstances).
(e) Pledgor has full power and authority to enter into this
Agreement and has the right to vote, pledge and grant a security interest in the
Pledged Shares as provided by this Agreement.
(f) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding obligation of
Pledgor, enforceable against Pledgor in accordance with its terms, except as
such enforceability may be limited by the effect of the Communications Act of
1934, as amended (the "COMMUNICATIONS ACT"), any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws or regulations
affecting creditors' rights generally or general principles of equity.
(g) The Pledged Shares constitute, as of the date hereof, all of
the authorized, issued and outstanding capital stock of the Pledged Company.
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(h) Except for the Pledged Shares, there are no other
instruments, certificates, securities or other writings, or any chattel paper,
evidencing or representing any ownership interest in the Pledged Company.
5. FURTHER ASSISTANCE. Pledgor agrees that at any time and from
time to time, at the expense of Pledgor, Pledgor will promptly execute and
deliver, or cause to be executed and delivered, all stock powers, proxies,
assignments, instruments and documents and take all further action, as is
reasonably necessary, at the Trustee's request, in order to perfect any security
interest granted or purported to be granted hereby or to enable the Trustee to
exercise and enforce its rights and remedies hereunder with respect to the
Pledged Collateral and to carry out the provisions and purposes hereof.
6. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be
continuing, Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Shares or any part thereof and the
Trustee shall not hold or share any such rights or the power to exercise such
rights.
(b) So long as no Event of Default shall have occurred and be
continuing, Pledgor shall be entitled to receive all cash dividends paid from
time to time in respect of the Pledged Shares.
(c) Except as otherwise provided in the Indenture, any and all
(i) dividends or other distributions and interest or principal paid or payable
in the form of instruments and other property (other than cash dividends
permitted under Section 6(b)) received, receivable or otherwise distributed in
respect of, or in exchange for, any Pledged Collateral, (ii) dividends and other
distributions paid or payable in cash received, receivable or otherwise
distributed in respect of any Pledged Shares in connection with a partial or
total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and (iii) cash paid, payable or otherwise
distributed in redemption of, or in exchange for, any Pledged Shares, shall in
each case be delivered forthwith to the Trustee to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the benefit of the
Trustee, be segregated from the other property or funds of Pledgor, and be
forthwith delivered to the Trustee as
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Pledged Collateral in the same form as so received (with any necessary
endorsement).
(d) The Trustee shall execute and deliver (or cause to be
executed and delivered) to Pledgor all such proxies and other instruments as
Pledgor may reasonably request for the purpose of enabling Pledgor to
exercise the voting and other rights which it is entitled to exercise
pursuant to Section 6(a).
(e) All dividends or other distributions and all interest and
principal payments which are received by Pledgor contrary to the provisions of
this Section 6 shall be received in trust for the benefit of the Trustee, shall
be segregated from other funds of Pledgor and shall be forthwith paid over to
the Trustee as Pledged Collateral in the same form as so received (with any
necessary endorsement).
(f) Upon the occurrence and during the continuance of an Event
of Default, all rights of Pledgor to exercise the voting and other consensual
rights which it would otherwise be entitled to exercise pursuant to Section 6(a)
shall cease, and, subject to FCC approval if required, all such rights shall
become vested in the Trustee which shall thereupon have the sole right to
exercise such voting and other consensual rights. Notwithstanding the foregoing
or any other provision of this Agreement, any foreclosure on, sale, transfer or
other disposition of, or the vesting or exercise of any right to vote or consent
with respect to, any of the Pledged Collateral as provided herein or any other
action taken or proposed to be taken by the Trustee hereunder which would affect
the operational, voting, or other control of Pledgor or the Pledged Company,
shall be effected pursuant to Section 310(d) of the Communications Act of 1934,
as amended, and to the applicable rules and regulations thereunder.
(g) Except as otherwise provided in the Indenture, upon the
occurrence and during the continuance of an Event of Default, all cash dividends
or other distributions payable in respect of the Pledged Shares shall be paid
directly to the Trustee and, if received by Pledgor, shall be received in trust
for the benefit of the Trustee, shall be segregated from other funds of Pledgor,
and shall be forthwith paid over to the Trustee as Pledged Collateral in the
same form as so received (with any necessary endorsements) and Pledgor's right
to receive such cash
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dividends pursuant to Section 6(b) hereof shall immediately cease.
7. TRANSFER AND OTHER LIENS; ADDITIONAL SHARES.
(a) Pledgor agrees that it will not (i) sell or otherwise
dispose of, or grant any option with respect to, any of the Pledged Collateral
without the prior written consent of the Trustee, (ii) create or permit to exist
any Lien upon or with respect to any of the Pledged Collateral, except for the
security interest granted under this Agreement or (iii) enter into any agreement
or understanding that purports to or may restrict or inhibit the Trustee's
rights or remedies hereunder, including the Trustee's right to sell or otherwise
dispose of the Pledged Collateral.
(b) Pledgor agrees that it will pledge and deliver to the
Trustee hereunder, immediately upon its acquisition (directly or indirectly)
thereof, any and all additional shares of stock, notes or other securities of
the Pledged Company of which Pledgor may become the beneficial owner after the
date hereof.
8. TRUSTEE APPOINTED ATTORNEY-IN-FACT. Pledgor hereby appoints the
Trustee as Pledgor's attorney-in-fact, with full authority in the place and
stead of Pledgor and in the name of Pledgor or otherwise, from time to time in
the Trustee's discretion to take any action and to execute any instrument which
the Trustee may deem necessary or advisable to further perfect and protect the
security interest granted hereby, including to receive, endorse and collect all
instruments made payable to Pledgor representing any dividend, interest or
principal payment or other distribution in respect of the Pledged Collateral or
any part thereof and to give full discharge for the same. Notwithstanding the
foregoing, the Trustee agrees to comply with all requirements of the
Communications Act including Section 310(d), and the applicable rules and
regulations thereunder, particularly, but not limited to, as such requirements
relate to actions taken or proposed to be taken by the Trustee which would
affect the operational, voting or other control of Pledgor or any Pledged
Company.
9. TRUSTEE MAY PERFORM. If Pledgor fails to perform any agreement
contained herein, the Trustee may itself perform, or cause performance of, such
agreement, subject to FCC approval if required, and the reasonable expenses of
the Trustee incurred in connection therewith shall be payable by Pledgor
pursuant to Section 13.
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10. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The rights and powers
granted to the Trustee hereunder are being granted in order to preserve and
protect the Trustee's security interest in and to the Pledged Collateral granted
hereby and shall not be interpreted to, and shall not, impose any duties on the
Trustee in connection therewith. The Trustee shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if the Pledged Collateral is accorded treatment substantially equal
to that which the Trustee accords its own property, it being understood that the
Trustee shall not have any responsibility for (i) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Pledged Collateral, whether or not the Trustee has or is
deemed to have knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any parties with respect to any Pledged Collateral.
11. SUBSEQUENT CHANGES AFFECTING PLEDGED COLLATERAL. Pledgor
represents to the Trustee that Pledgor has made its own arrangements for keeping
informed of changes or potential changes affecting the Pledged Collateral
(including rights to convert, rights to subscribe, payment of dividends,
reorganization or other exchanges, tender offers and voting rights), and Pledgor
agrees that the Trustee shall have no responsibility or liability for informing
Pledgor of any such changes or potential changes or for taking any action or
omitting to take any action with respect thereto. Pledgor covenants that it
will not, without the prior written consent of the Trustee, sell or otherwise
dispose of, or grant any option with respect to, any of the Pledged Collateral
or create or permit to exist any Lien upon or with respect to any of the Pledged
Collateral.
12. REMEDIES UPON DEFAULT. If any Event of Default shall have
occurred and be continuing, the Trustee shall, in addition to all other rights
given by law or by this Agreement or the Indenture, or otherwise, have all of
the rights and remedies with respect to the Pledged Collateral of a secured
party under the Uniform Commercial Code ("CODE") in effect in the State of New
York at that time and the Trustee may (subject to FCC approval if required),
without notice (unless required by the Communications Act) and at its option,
transfer or register, and Pledgor shall register or cause to be registered upon
request therefor by the Trustee, the Pledged Collateral or any part thereof on
the books of the Pledged Company into
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the name of the Trustee or the Trustee's nominee(s), indicating that such
Pledged Collateral is subject to the security interest hereunder. In
addition, with respect to any Pledged Collateral which shall then be in or
shall thereafter come into the possession or custody of the Trustee, the
Trustee (subject to compliance with the requirements of the Communications
Act of 1934, as amended, including Section 310(d) and the rules and
regulations issued thereunder) may sell or cause the same to be sold at any
broker's board or at any public or private sale, in one or more sales or
lots, at such price or prices as the Trustee may deem best, for cash or on
credit or for future delivery or subject to financing or other contingencies,
without assumption of any credit risk, all in accordance with the terms and
provisions of this Agreement and the Indenture. The purchaser of any or all
Pledged Collateral so sold shall thereafter hold the same absolutely, free
from any claim, encumbrance or right of any kind whatsoever. Unless any of
the Pledged Collateral threatens to decline speedily in value or is or
becomes of a type sold on a recognized market, the Trustee will give Pledgor
reasonable notice of the time and place of any public sale thereof, or of the
time after which any private sale or other intended disposition is to be
made. Any sale of the Pledged Collateral conducted in conformity with
reasonable commercial practices of banks, insurance companies, commercial
finance companies, or other financial institutions disposing of property
similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Any requirements of reaonable notice shall be met if such notice
is mailed to Pledgor as provided in Section 15 below, at least forty-five
(45) days before the time of the sale or disposition. Any other requirement
of notice, demand or advertisement for sale is, to the extent permitted by
law, waived. The Trustee may, in its own name or in the name of a designee
or nominee, buy any of the Pledged Collateral at any public sale and, if
permitted by applicable law, at any private sale. All expenses (including
court costs and reasonable attorneys' fees, expenses and disbursements) of,
or incident to, the enforcement of any of the provisions hereof shall be
recoverable from the proceeds of the sale or other disposition of the Pledged
Collateral. In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after an Event of Default, Pledgor agrees that
upon the occurrence or existence of any Event of Default, the Trustee may,
from time to time, attempt to sell all or part of the Pledged Collateral by
means of a private placement, restricting the
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prospective purchasers to those who will represent and agree that they are
purchasing for investment only and not for distribution. In so doing, the
Trustee may solicit offers to buy the Pledged Collateral, or any part of it,
for cash, from a limited number of investors who might be interested in
purchasing the Pledged Collateral, and if the Trustee solicits such offers
from not less than four (4) such investors that are not affiliated with the
Trustee, then the acceptance by the Trustee of the highest offer obtained
therefrom shall (subject to compliance with the Communications Act of 1934,
as amended, including Section 310(d), and the rules and regulations issued
thereunder) be deemed to be a commercially reasonable method of disposition
of the Pledged Collateral.
13. EXPENSES. Pledgor shall, upon demand, pay to the Trustee the
amount of any and all reasonable expenses, including the reasonable fees,
expenses and disbursements of its counsel (including allocated costs of inside
counsel), of any investment banking firm, business broker or other selling agent
and of any other experts and agents retained by the Trustee, which the Trustee
may incur in connection with (i) the administration of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral, (iii) the exercise or
enforcement of any of the rights of the Trustee hereunder or (iv) the failure by
Pledgor to perform or observe any of the provisions hereof.
14. FCC MATTERS.
(a) If an Event of Default shall have occurred and be
continuing, Pledgor shall take any action which the Trustee may request in the
exercise of its rights and remedies under this Agreement to transfer and assign
to the Trustee, or to such one or more third parties as the Trustee may
designate, or to a combination of the foregoing, the Pledged Collateral. To
enforce the provisions of this Section 14, the Trustee is hereby empowered to
seek from the FCC an involuntary transfer of control of the Pledged Company for
the purpose of seeking a BONA FIDE purchaser to whom control will ultimately be
transferred. Pledgor hereby agrees to authorize such an involuntary transfer of
control upon the request of the Trustee, to a receiver or other holder, subject
to FCC approval. Upon the occurrence and continuation of an Event of Default,
Pledgor shall use its best efforts to assist in obtaining approval of the FCC,
if required, for any action or transactions contemplated by this Agreement,
including the preparation, execution and
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filing with the FCC of Pledgor's portion of any application or applications
for consent to transfer of control necessary or appropriate under the FCC's
rules and regulations for approval of the transfer or assignment of any
portion of the Pledged Collateral.
(b) Pledgor acknowledges that FCC authorization for the transfer
of control of the permits, licenses or other authorizations of the Pledged
Company or its subsidiaries is integral to the Trustee's realization of the
value of the Pledged Collateral for the benefit of the holders of the Notes,
that there is no remedy at law for failure by Pledgor to comply with the
provisions of this Section 14 and that such failure would not be adequately
compensable in damages, and therefore agrees that the agreements of Pledgor
contained in this Section 14 may be specifically enforced.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Trustee shall not, without first obtaining approval of the FCC,
take any action pursuant to this Agreement which would constitute or result in
any assignment of an FCC permit, license or other authorization or transfer of
control of Pledgor or the Pledged Company if such assignment of an FCC permit,
license or other authorization or transfer of control would require, under then
existing law (including the written rules and regulations of the FCC), the prior
approval of the FCC; nor shall any rights hereunder be deemed vested in the
Trustee if such vesting would be deemed to result in an assignment of an FCC
permit, license or other authorization or transfer of control of Pledgor or the
Pledged Company, if any such assignment or transfer would require the prior
approval of the FCC, unless and until such approval is obtained.
(d) Pledgor consents to the transfer of control or assignment of
the Pledged Collateral to a receiver, trustee, transferee, or similar official
or to any purchaser of the Pledged Collateral pursuant to any public or private
sale, judicial sale, foreclosure or exercise of other remedies available to the
Trustee as permitted by applicable law.
(e) Notwithstanding anything to the contrary contained in this
Agreement, prior to the occurrence of an Event of Default and compliance with
all applicable laws by the Trustee, this Agreement and the transactions
contemplated hereby do not, will not, and are not intended to, constitute,
create or have the effect of constituting or
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creating, directly or indirectly, actual or practical ownership of Pledgor or
the Pledged Company by the Trustee or control, affirmative or negative,
direct or indirect, of Pledgor or the Pledged Company, over the management or
any other aspect of the operation of Pledgor or the Pledged Company, which
ownership and control remain exclusively and at all such times in Pledgor and
the Pledged Company.
(f) There shall be no communication between the Pledgor and the
Trustee whereby the Trustee shall influence the management and/or operation of
any and all facilities subject to Title III of the Communications Act.
15. SECURITY INTEREST ABSOLUTE. All rights of the Trustee and
security interests hereunder, and all obligations of Pledgor hereunder, shall be
absolute and unconditional irrespective of, and unaffected by:
(a) any lack of validity or enforceability of the Indenture or
any of the other Collateral Documents;
(b) any change in the time, manner or place or payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the terms and conditions of the
Indenture or any of the other Collateral Documents;
(c) any exchange, surrender, release or nonperfection of any
other collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor in respect of the Obligations
or of this Agreement.
16. MISCELLANEOUS PROVISIONS.
(a) NOTICES. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in the form
and manner, and delivered to each of the parties hereto at their respective
addresses, set forth in the Indenture.
(b) HEADINGS. The headings in this Agreement are for purposes
of reference only and shall not affect the meaning or construction of any
provision of this Agreement.
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(c) SEVERABILITY. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
(d) AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver
of any provision of this Agreement and any consent to any departure by Pledgor
from any provision of this Agreement shall be effective only if made or given in
compliance with all of the terms and provisions of the Indenture.
(e) INTERPRETATION OF AGREEMENT. Time is of the essence in each
provision of this Agreement of which time is an element.
(f) CONTINUING SECURITY INTEREST. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (i) remain in
full force and effect until payment and performance in full of the Obligations,
(ii) be binding upon Pledgor, its successors and assigns, and (iii) inure,
together with the rights and remedies of the Trustee hereunder, to the benefit
of the Trustee and its successors, transferees and assigns.
(g) REINSTATEMENT. To the extent permitted by law, this
Agreement shall continue to be effective or be reinstated, as the case may be,
if at any time any amount received by the Trustee in respect of the Obligations
is rescinded or must otherwise be restored or returned by the Trustee, upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Pledgor or
upon the appointment of any receiver, intervenor, conservator, trustee or
similar official for Pledgor or any substantial part of its assets, or
otherwise, all as though such payments had not been made.
(h) SURVIVAL OF PROVISIONS. All representations, warranties and
covenants of Pledgor contained herein shall survive the execution and delivery
of this Agreement, and shall terminate only upon the full and final payment and
performance of the Obligations secured hereby.
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(i) AUTHORITY OF THE TRUSTEE. The Trustee shall have and be
entitled to exercise all powers hereunder which are specifically granted to the
Trustee by the terms hereof, together with such powers as are reasonably
incident thereto. The Trustee may perform any of its duties hereunder or in
connection with the Pledged Collateral by or through agents or employees and
shall be entitled to retain counsel and to act in reliance upon the advice of
counsel concerning all such matters. Neither the Trustee nor any director,
officer, employee, attorney or agent of the Trustee shall be liable to Pledgor
for any action taken or omitted to be taken by it or them hereunder, except for
its or their own gross negligence or willful misconduct, nor shall the Trustee
be responsible for the validity, effectiveness or sufficiency of this Agreement
or of any document or security furnished pursuant hereto. The Trustee and its
directors, officers, employees, attorneys and agents shall be entitled to rely
on any communication, instrument or document reasonably believed by it or them
to be genuine and correct and to have been signed or sent by the proper person
or persons. Pledgor agrees to indemnify and hold harmless the Trustee and any
other Person from and against any and all costs, expenses (including reasonable
fees, expenses and disbursements of attorneys and paralegals (including, without
duplication, reasonable charges of inside counsel)), claims and liabilities
incurred by the Trustee or such Person hereunder, unless such claim or liability
shall be due to willful misconduct or gross negligence on the part of the
Trustee or such Person.
(j) RELEASE: TERMINATION OF AGREEMENT. Subject to the
provisions of Section 16(g) hereof, this Agreement shall terminate upon full and
final payment and performance of all the Obligations. At such time, the Trustee
shall, at the request and expense of Pledgor, reassign and redeliver to Pledgor
all of the Pledged Collateral hereunder which has not been sold, disposed of,
retained or applied by the Trustee in accordance with the terms hereof. Such
reassignment and redelivery shall be without warranty by or recourse to the
Trustee except as to the absence of any prior assignments by the Trustee of its
interest in the Pledged Collateral, and shall be at the expense of Pledgor.
(k) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be deemed an original but
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all of which shall together constitute one and the same agreement.
(l) WAIVERS. PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) EXCEPT FOR NOTICES SPECIFICALLY PROVIDED FOR IN THIS
AGREEMENT, WAIVES ALL RIGHTS OF NOTICE AND HEARING OF ANY KIND PRIOR TO THE
EXERCISE BY THE TRUSTEE OF ITS RIGHTS FROM AND AFTER AN EVENT OF DEFAULT TO
REPOSSESS THE PLEDGED COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR
LEVY UPON THE PLEDGED COLLATERAL. PLEDGOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF THE TRUSTEE IN CONNECTION WITH ANY JUDICIAL PROCESS OR
PROCEEDING TO OBTAIN POSSESSION OF, REPLEVY, ATTACH OR LEVY UPON THE PLEDGED
COLLATERAL, TO ENFORCE ANY JUDGMENT OR OTHER SECURITY FOR THE OBLIGATIONS, TO
ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY OR TO
ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, OR PRELIMINARY OR
PERMANENT INJUNCTION, THIS AGREEMENT;
(ii) WAIVES THE RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR
CROSS-CLAIM IN RESPECT OF, AND ALL STATUTES OF LIMITATIONS WHICH MAY BE RELEVANT
TO, SUCH ACTION OR PROCEEDING;
(iii) WAIVES DILIGENCE, DEMAND, PRESENTMENT AND PROTEST AND
ANY NOTICES THEREOF AS WELL AS NOTICE OF NONPAYMENT; AND
(iv) WAIVES PRESENTMENT AND DEMAND FOR PAYMENT OF ANY OF
THE OBLIGATIONS, PROTEST AND NOTICE OF DISHONOR OR DEFAULT WITH RESPECT TO ANY
OF THE OBLIGATIONS.
(m) GOVERNING LAW. The validity, interpretation and enforcement
of this Agreement shall be governed by the laws of the State of New York without
giving effect to the conflict of law principles thereof.
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IN WITNESS WHEREOF, Pledgor and the Trustee have each caused this Stock
Pledge Agreement to be duly executed and delivered as of the date first above
written.
PLEDGOR: ECHOSTAR COMMUNICATIONS
CORPORATION, a Colorado
corporation
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice
President and
General Counsel
TRUSTEE: FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ XXXXXXX XXXXXXXX
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Name: Xxxxxxx Xxxxxxxx
Title: Trust Officer
-15-
SCHEDULE I
PLEDGED SHARES
PLEDGED COMPANY CERTIFICATE NO. NO. OF SHARES
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EchoStar DBS Corporation, 1 1000
a Colorado corporation