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EXHIBIT 4.6
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
October 10, 1997, among Digital Television Services, LLC, a Delaware limited
liability company (the "Company"), DTS Capital, Inc., a Delaware corporation
("Capital"), the guarantors listed on the signature pages hereto (the
"Guarantors") and WEP Intermediate Corp., a Delaware corporation ("WEP"), and
The Bank of New York, a New York banking corporation, as trustee (the
"Trustee"). Capitalized terms used herein and not defined herein shall have the
meanings set forth in the Indenture (as defined below).
WHEREAS, the Company, Capital, the guarantors signatory thereto and the
Trustee executed an Indenture dated as of July 30, 1997 (the "Indenture")
relating to the 122% Senior Subordinated Notes due 2007 (the "Notes") of the
Company and Capital;
WHEREAS, the Company desires to merge with WEP, which will be renamed
"Digital Television Services, Inc." upon the consummation of such merger
(collectively, the "Merger");
WHEREAS, in accordance with Section 5.01(a) of the Indenture, WEP has
agreed to expressly assume, upon the effectiveness of the Merger (and not
before), the due and punctual payment of the principal of, premium, if any, and
interest on the Notes and the performance and observance of each and every
covenant contained in the Indenture, the Collateral Documents and the
Registration Rights Agreement;
WHEREAS, the Company has formed an additional subsidiary, Digital
Television Services of Indiana, LLC ("DTS Indiana"), which is to become a
Guarantor under the Indenture;
WHEREAS, pursuant to Section 10.01 of the Indenture, the Company,
Capital, the Guarantors, WEP and the Trustee are permitted to enter into this
Supplemental Indenture to (i) effect the assumption by WEP of all obligations of
the Company under the Notes, the Indenture, the Registration Rights Agreement
and the Collateral Documents upon the effectiveness of the Merger (and not
before) and (ii) add DTS Indiana as a Guarantor; and
WHEREAS, all conditions precedent provided for in the Indenture
relating to this Supplemental Indenture have been complied with.
NOW, THEREFORE, for and in consideration of the premises and the
covenants contained herein, each of the Company, Capital, the Guarantors and WEP
hereby covenants and agrees with the Trustee, for the equal benefit of all the
present and future holders of the Notes without preference, priority or
distinction of any of the Notes over any of the others by reason of priority in
time of issuance, negotiation or maturity thereof, or otherwise, and for the
benefit of the Trustee and its successors and assigns, as follows:
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ARTICLE I
ASSUMPTION BY WEP
SECTION 1.01. Assumption by WEP.
By this Supplemental Indenture, upon consummation of the Merger (and
not before), WEP hereby expressly assumes the due and punctual payment of the
principal of, premium, if any, and interest on all the Notes currently
outstanding and the performance and observance of each and every covenant
contained in the Indenture, the Collateral Documents and the Registration Rights
Agreement on the part of the Company to be performed or observed. Effective upon
the consummation of the Merger (and not before), WEP hereby succeeds to and is
substituted for the Company with the same effect as if it has been named in the
Indenture as a party thereto, and hereafter from time to time WEP may exercise
each and every right and power of the Company under the Indenture, in the name
of the Company or in its own name; and any act or proceeding by and any
provision of the Indenture required or permitted to be done by the Board of
Directors or any Officer of the Company may be done with like force and effect
by the Board of Directors or any Officer of WEP.
ARTICLE II
SECTION 2.01 Addition of Guarantor.
By this Supplemental Indenture, DTS Indiana hereby agrees to be bound
by the terms and conditions of the Indenture and unconditionally guarantees all
of the Issuers' Obligations under the Notes and the Indenture on the terms set
forth in Article Eleven and Article Twelve of the Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.01. Counterpart Originals.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 3.02. Severability.
In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby, and a
Holder shall have no claim therefor against any party hereto.
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SECTION 3.03. Successors.
All agreements of the Company, Capital, the Guarantors and WEP in this
Supplemental Indenture shall bind their respective successors. All agreements of
the Trustee in this Supplemental Indenture shall bind its successor.
SECTION 3.04. Governing Law.
The laws of the Sate of New York shall govern this Supplemental
Indenture without regard to principles of conflicts of law.
SECTION 3.05. Effect of Supplemental Indenture.
Except as amended by this Supplemental Indenture, the terms and
provisions of the Indenture shall remain in full force and effect.
SECTION 3.06. Trustee.
The Trustee accepts the modifications of the Indenture effected by this
Supplemental Indenture, but only upon the terms and conditions set forth in the
Indenture. Without limiting the generality of the foregoing, the Trustee assumes
no responsibility for the correctness of the recital herein contained, which
shall be taken as the statements of the Company, Capital, the Guarantors and
WEP, and the Trustee shall not be responsible for or accountable in any way
whatsoever for or with respect to the validity or execution of this Supplemental
Indenture and the Trustee makes no representation with respect thereto.
[SIGNATURE PAGES FOLLOW]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
DIGITAL TELEVISION SERVICES, LLC
By: DTS Management, LLC,
its manager
By:
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Xxxxxxx X. Xxxxxxxx, Xx.
President
WEP INTERMEDIATE CORP.
By:
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Xxxxxxx Xxxxxxxx, Xx.
President
DTS CAPITAL, INC.
By:
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Xxxxxxx X. Xxxxxxxx, Xx.
President
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title:
GUARANTORS:
DIGITAL TELEVISION SERVICES OF
CALIFORNIA, LLC
DIGITAL TELEVISION SERVICES OF
COLORADO, LLC
DIGITAL TELEVISION SERVICES OF
GEORGIA, LLC
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DIGITAL TELEVISION SERVICES OF
INDIANA, LLC
DIGITAL TELEVISION SERVICES OF
KANSAS, LLC
DIGITAL TELEVISION SERVICES OF
KENTUCKY, LLC
DIGITAL TELEVISION SERVICES OF
NEW MEXICO, LLC
DIGITAL TELEVISION SERVICES OF
NEW YORK I, LLC
DIGITAL TELEVISION SERVICES OF
SOUTH CAROLINA I, LLC
DIGITAL TELEVISION SERVICES OF
VERMONT, LLC
By: DTS Management, LLC,
their sole member
By:
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Xxxxxxx X. Xxxxxxxx, Xx.
President
SPACENET, INC.
By:
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Xxxxxxx X. Xxxxxxxx, Xx.
Vice President
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DTS MANAGEMENT, LLC
By:
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Xxxxxx X. Xxxxxxx
Vice President
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