exv4w1






Exhibit 4.1




ECHOSTAR DBS CORPORATION




7.75% SENIOR NOTES DUE 2015




INDENTURE




Dated as of May 27, 2008




U.S. Bank National Association




TRUSTEE




 









 





CROSS-REFERENCE TABLE




	 	 	 
	      TIA	 	Indenture
	   Section	 	Section
	310 (a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N/A
	(a)(4)
	 	N/A
	(b)
	 	7.10
	(c)
	 	N/A
	311 (a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N/A
	312 (a)
	 	2.05
	(b)
	 	11.03
	(c)
	 	11.03
	313 (a)
	 	7.06
	(b)(1)
	 	7.06
	(b)(2)
	 	7.07
	(c)
	 	7.06; 11.02
	(d)
	 	7.06
	314 (a)
	 	11.05
	(4)
	 	4.04
	(b)
	 	N/A
	(c)(1)
	 	11.04
	(c)(2)
	 	11.04
	(c)(3)
	 	N/A
	(d)
	 	N/A
	(e)
	 	11.05
	(f)
	 	N/A
	315 (a)
	 	7.01(b)
	(b)
	 	7.05; 11.02
	(c)
	 	7.01(a)
	(d)
	 	7.01
	(e)
	 	6.11
	316 (a) (last
sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N/A
	(b)
	 	6.07
	(c)
	 	2.12
	317 (a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318 (a)
	 	11.01
	(c)
	 	11.01








 




			
	N/A means Not Applicable.
	 
	Note: This Cross-Reference Table shall not, for any purposes, be deemed to be part of this
Indenture.






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

	DEFINITIONS AND INCORPORATION BY REFERENCE

	 
	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Other Definitions
	 	 	18	 
	SECTION 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	19	 
	SECTION 1.04. Rules of Construction
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 2

	THE NOTES

	 
	 	 	 	 
	SECTION 2.01. Form and Dating
	 	 	20	 
	SECTION 2.02. Form of Execution and Authentication
	 	 	22	 
	SECTION 2.03. Registrar and Paying Agent
	 	 	23	 
	SECTION 2.04. Paying Agent to Hold Money in Trust
	 	 	23	 
	SECTION 2.05. Lists of Holders of the Notes
	 	 	23	 
	SECTION 2.06. Transfer and Exchange
	 	 	24	 
	SECTION 2.07. Replacement Notes
	 	 	35	 
	SECTION 2.08. Outstanding Notes
	 	 	35	 
	SECTION 2.09. Treasury Notes
	 	 	35	 
	SECTION 2.10. Temporary Notes
	 	 	35	 
	SECTION 2.11. Cancellation
	 	 	36	 
	SECTION 2.12. Defaulted Interest
	 	 	36	 
	SECTION 2.13. Record Date
	 	 	36	 
	SECTION 2.14. CUSIP Number
	 	 	36	 
	 
	 	 	 	 
	ARTICLE 3

	REDEMPTION

	 
	 	 	 	 
	SECTION 3.01. Notices to Trustee
	 	 	37	 
	SECTION 3.02. Selection of Notes to Be Redeemed
	 	 	37	 
	SECTION 3.03. Notice of Redemption
	 	 	37	 
	SECTION 3.04. Effect of Notice of Redemption
	 	 	38	 
	SECTION 3.05. Deposit of Redemption Price
	 	 	38	 
	SECTION 3.06. Notes Redeemed in Part
	 	 	39	 






 









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 3.07. Optional Redemption
	 	 	39	 
	SECTION 3.08. Offer to Purchase by Application of Excess Proceeds
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 4

	COVENANTS

	 
	 	 	 	 
	SECTION 4.01. Payment of Notes
	 	 	43	 
	SECTION 4.02. Maintenance of Office or Agency
	 	 	43	 
	SECTION 4.03. Reports
	 	 	43	 
	SECTION 4.04. Compliance Certificate
	 	 	44	 
	SECTION 4.05. Taxes
	 	 	44	 
	SECTION 4.06. Stay, Extension and Usury Laws
	 	 	44	 
	SECTION 4.07. Limitation on Restricted Payments
	 	 	45	 
	SECTION 4.08. Limitations on Dividend and Other Payment Restrictions Affecting Subsidiaries
	 	 	50	 
	SECTION 4.09. Limitation on Incurrence of Indebtedness
	 	 	51	 
	SECTION 4.10. Asset Sales
	 	 	54	 
	SECTION 4.11. Limitation on Transactions with Affiliates
	 	 	56	 
	SECTION 4.12. Limitation on Liens
	 	 	58	 
	SECTION 4.13. Additional Subsidiary Guarantees
	 	 	59	 
	SECTION 4.14. Corporate Existence
	 	 	60	 
	SECTION 4.15. Offer to Purchase Upon Change of Control Event
	 	 	60	 
	SECTION 4.16. Limitation on Activities of the Company
	 	 	61	 
	SECTION 4.17. Intentionally Omitted
	 	 	61	 
	SECTION 4.18. Accounts Receivable Subsidiary
	 	 	61	 
	SECTION 4.19. Dispositions of ETC and Non-Core Assets
	 	 	64	 
	SECTION 4.20. Payments for Consent
	 	 	67	 
	SECTION 4.21. Termination or Suspension of Certain Covenants Under Certain Conditions
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 5

	SUCCESSORS

	 
	 	 	 	 
	SECTION 5.01. Merger, Consolidation, or Sale of Assets of the Company
	 	 	68	 
	SECTION 5.02. Successor Corporation Substituted
	 	 	69	 






ii




 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 6

	DEFAULTS AND REMEDIES

	 
	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	69	 
	SECTION 6.02. Acceleration
	 	 	70	 
	SECTION 6.03. Other Remedies
	 	 	71	 
	SECTION 6.04. Waiver of Past Defaults
	 	 	71	 
	SECTION 6.05. Control by Majority
	 	 	71	 
	SECTION 6.06. Limitation on Suits
	 	 	72	 
	SECTION 6.07. Rights of Holders of Notes to Receive Payment
	 	 	72	 
	SECTION 6.08. Collection Suit by Trustee
	 	 	72	 
	SECTION 6.09. Trustee May File Proofs of Claim
	 	 	73	 
	SECTION 6.10. Priorities
	 	 	73	 
	SECTION 6.11. Undertaking for Costs
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 7

	TRUSTEE

	 
	 	 	 	 
	SECTION 7.01. Duties of Trustee
	 	 	74	 
	SECTION 7.02. Rights of Trustee
	 	 	75	 
	SECTION 7.03. Individual Rights of Trustee
	 	 	76	 
	SECTION 7.04. Trustee’s Disclaimer
	 	 	76	 
	SECTION 7.05. Notice of Defaults
	 	 	76	 
	SECTION 7.06. Reports by Trustee to Holders of the Notes
	 	 	76	 
	SECTION 7.07. Compensation and Indemnity
	 	 	77	 
	SECTION 7.08. Replacement of Trustee
	 	 	77	 
	SECTION 7.09. Successor Trustee by Merger, Etc
	 	 	79	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	79	 
	SECTION 7.11. Preferential Collection of Claims Against Company
	 	 	79	 
	 
	 	 	 	 
	ARTICLE 8

	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	79	 
	SECTION 8.02. Legal Defeasance and Discharge
	 	 	79	 
	SECTION 8.03. Covenant Defeasance
	 	 	80	 






iii




 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 8.04. Conditions to Legal or Covenant Defeasance
	 	 	80	 
	SECTION 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
	 	 	81	 
	SECTION 8.06. Repayment to Company
	 	 	82	 
	SECTION 8.07. Reinstatement
	 	 	82	 
	ARTICLE 9

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 
	SECTION 9.01. Without Consent of Holders of Notes
	 	 	83	 
	SECTION 9.02. With Consent of Holders of Notes
	 	 	83	 
	SECTION 9.03. Compliance with Trust Indenture Act
	 	 	85	 
	SECTION 9.04. Revocation and Effect of Consents
	 	 	85	 
	SECTION 9.05. Notation on or Exchange of Notes
	 	 	85	 
	SECTION 9.06. Trustee to Sign Amendments, Etc
	 	 	85	 
	 
	 	 	 	 
	ARTICLE 10

	GUARANTEES

	 
	 	 	 	 
	SECTION 10.01. Guarantee
	 	 	86	 
	SECTION 10.02. Execution and Delivery of Guarantees
	 	 	87	 
	SECTION 10.03. Merger, Consolidation or Sale of Assets of Guarantors
	 	 	87	 
	SECTION 10.04. Successor Corporation Substituted
	 	 	88	 
	SECTION 10.05. Releases from Guarantees
	 	 	88	 
	 
	 	 	 	 
	ARTICLE 11

	MISCELLANEOUS

	 
	 	 	 	 
	SECTION 11.01. Trust Indenture Act Controls
	 	 	89	 
	SECTION 11.02. Notices
	 	 	89	 
	SECTION 11.03. Communication by Holders of Notes with Other Holders of Notes
	 	 	90	 
	SECTION 11.04. Certificate and Opinion as to Conditions Precedent
	 	 	90	 
	SECTION 11.05. Statements Required in Certificate or Opinion
	 	 	91	 
	SECTION 11.06. Rules by Trustee and Agents
	 	 	91	 
	SECTION 11.07. No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders
	 	 	91	 
	SECTION 11.08. Governing Law
	 	 	92	 
	SECTION 11.09. No Adverse Interpretation of Other Agreements
	 	 	92	 






iv




 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 11.10. Successors
	 	 	92	 
	SECTION 11.11. Severability
	 	 	92	 
	SECTION 11.12. Counterpart Originals
	 	 	92	 
	SECTION 11.13. Table of Contents, Headings, Etc
	 	 	92	 






 v




 









 





EXHIBITS




EXHIBIT A FORM OF NOTE

EXHIBIT B FORM OF GUARANTEE

EXHIBIT C FORM OF CERTIFICATE OF TRANSFER

EXHIBIT D FORM OF CERTIFICATE OF EXCHANGE




vi




 









 





          INDENTURE, dated as of May 27, 2008, among EchoStar DBS Corporation, a Colorado corporation
(the “Company”), the Guarantors (as hereinafter defined) and U.S. Bank National Association, as
trustee (the “Trustee”).




          The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders of the Company’s 7.75% Senior Notes due 2015.




RECITALS




          The Company and the Guarantors have duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Notes and the Guarantees.




          All things necessary (i) to make the Notes, when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company and delivered hereunder, the valid obligations
of the Company, (ii) to make the Guarantees when executed by the Guarantors and delivered hereunder
the valid obligations of the Guarantors, and (iii) to make this Indenture a valid agreement of the
Company and the Guarantors, all in accordance with their respective terms, have been done.




          For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
it is mutually agreed as follows for the equal and ratable benefit of the Holders of the Notes.




ARTICLE 1




DEFINITIONS AND INCORPORATION BY REFERENCE




SECTION 1.01. Definitions.




          “144A Global Note” means one or more Global Notes substantially in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or
on behalf of, and registered in the name of, the Depositary or its nominee, which, in the
aggregate, are initially equal to the outstanding principal amount of the Notes initially sold by
the Company in reliance on Rule 144A.




          “2003 EDBS Notes” means the $1,000,000,000 aggregate principal amount of the Company’s 53/4%
Senior Notes due 2008 and the $1,000,000,000 aggregate principal
amount of the Company’s
63/8% Senior
Notes due 2011.




          “2003 EDBS Notes Indentures” means the indentures, each dated as of October 2, 2003 between
the Company and U.S. Bank National Association, as trustee, governing the 2003 EDBS Notes and each
of them as the same may be amended, modified or supplemented from time to time.




          “2004 EDBS Notes” means the $1,000,000,000
aggregate principal original issue amount of
65/8%
Senior Notes due 2014 issued by the Company.




 









 





          “2004 EDBS Notes Indenture” means the indenture dated October 1, 2004 among the Company and
U.S. Bank National Association, as trustee, as the same may be amended, modified or supplemented
from time to time.




          “2006
EDBS Notes” means the $1,500,000,000 aggregate principal original issue amount of 71/8%
Senior Notes due 2016 issued by the Company and the $500,000,000 aggregate principal original issue
amount of 7% Senior Notes due 2013 issued by the Company.




          “2006 EDBS Notes Indentures” means the indentures dated February 2, 2006 and October 18, 2006
among the Company and U.S. Bank National Association, as trustee, and each of them as the same may
be amended, modified or supplemented from time to time.




          “Accounts Receivable Subsidiary” means one Unrestricted Subsidiary of the Company specifically
designated as an Accounts Receivable Subsidiary for the purpose of financing the Company’s accounts
receivable and provided that any such designation shall not be deemed to prohibit the
Company from financing accounts receivable through any other entity, including, without limitation,
any other Unrestricted Subsidiary.




          “Accounts Receivable Subsidiary Notes” means the notes to be issued by the Accounts Receivable
Subsidiary for the purchase of accounts receivable.




          “Acquired Debt” means, with respect to any specified Person, Indebtedness of any other Person
existing at the time such other Person merges with or into or becomes a Subsidiary of such
specified Person, or Indebtedness incurred by such specified Person in connection with the
acquisition of assets, including Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into or becoming a Subsidiary of such specified Person or the
acquisition of such assets, as the case may be.




          “Acquired Subscriber” means a subscriber to a telecommunications service provided by a
telecommunications service provider that is not an Affiliate of the Company at the time the Company
or one of its Restricted Subsidiaries purchases the right to provide telecommunications services to
such subscriber from such telecommunications service provider, whether directly or through the
acquisition of the entity providing telecommunications services or assets used or to be used to
provide telecommunications service to such subscriber.




          “Acquired Subscriber Debt” means (i) Indebtedness, the proceeds of which are used to pay the
purchase price for Acquired Subscribers or to acquire the entity which has the right to provide
telecommunications services to such Acquired Subscribers or to acquire from such entity or an
Affiliate of such entity assets used or to be used in connection with such telecommunications
business; provided that such Indebtedness is incurred within three years after the date of
the acquisition of such Acquired Subscriber and (ii) Acquired Debt of any such entity being
acquired; provided that in no event shall the amount of such Indebtedness and Acquired Debt
for any Acquired Subscriber exceed the sum of the actual purchase price (inclusive of such Acquired
Debt) for such Acquired Subscriber, such entity and such assets plus the cost of converting such
Acquired Subscriber to usage of a delivery format for telecommunications services made available by
the Company or any of its Restricted Subsidiaries.




2









 





          “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided, however, that beneficial ownership
of 10% or more of the voting securities of a Person shall be deemed to be control;
provided, further, that no individual, other than a director of DISH or the Company
or an officer of DISH or the Company with a policy making function, shall be deemed an Affiliate of
the Company or any of its Subsidiaries solely by reason of such individual’s employment, position
or responsibilities by or with respect to DISH, the Company or any of their respective
Subsidiaries.




          “Agent” means any Registrar, Paying Agent or co-registrar.




          “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary that apply to such
transfer or exchange.




          “Bankruptcy Law” means title 11, U.S. Code or any similar federal or state law for the relief
of debtors.




          “Board of Directors” means the Board of Directors of the Company.




          “Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.




          “Business Day” means any day other than a Legal Holiday.




          “Capital Lease Obligation” means, as to any Person, the obligations of such Person under a
lease that are required to be classified and accounted for as capital lease obligations under GAAP
and, for purposes of this definition, the amount of such obligations at the time any determination
thereof is to be made shall be the amount of the liability in respect of a capital lease that would
at such time be so required to be capitalized on a balance sheet in accordance with GAAP.




          “Capital Stock” means any and all shares, interests, participations, rights or other
equivalents, however designated, of corporate stock or partnership or membership interests, whether
common or preferred.




          “Cash Equivalents” means: (a) United States dollars; (b) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or instrumentality
thereof having maturities of not more than one year from the date of acquisition; (c) certificates
of deposit and eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank
deposits, in each case with any domestic commercial bank having capital and surplus in excess of
$500 million; (d) repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clauses (b) and (c) entered into with any financial
institution meeting the qualifications specified in clause (c) above; (e) commercial




3









 




paper rated P-2 or better, A-2 or better or the equivalent thereof by Moody’s or S&P,
respectively, and in each case maturing within twelve months after the date of acquisition; and
(f) money market funds offered by any domestic commercial or investment bank having capital and
surplus in excess of $500 million at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (a) through (e) of this definition.




          “Change of Control” means: (a) any transaction or series of transactions the result of which
is that any Person (other than the Principal or a Related Party) individually owns more than 50% of
the total Equity Interest of DISH Network Corporation; (b) the first day on which a majority of the
members of the Board of Directors of DISH Network Corporation are not Continuing Directors; or (c)
any time that DISH Network Corporation shall cease to beneficially own 100% of the Equity Interests
of the Company.




          “Change of Control Event” means the occurrence of a Change of Control and a Rating Decline.




          “Communications Act” means the Communications Act of 1934, as amended.




          “Consolidated Cash Flow” means, with respect to any Person for any period, the Consolidated
Net Income of such Person for such period, plus, to the extent deducted in computing Consolidated
Net Income: (a) provision for taxes based on income or profits; (b) Consolidated Interest Expense;
(c) depreciation and amortization (including amortization of goodwill and other intangibles) of
such Person for such period; and (d) any extraordinary loss and any net loss realized in connection
with any Asset Sale, in each case, on a consolidated basis determined in accordance with GAAP;
provided that Consolidated Cash Flow shall not include interest income derived from the net
proceeds of the Offering.




          “Consolidated Interest Expense” means, with respect to any Person for any period, consolidated
interest expense of such Person for such period, whether paid or accrued, including amortization of
original issue discount and deferred financing costs, non-cash interest payments and the interest
component of Capital Lease Obligations, on a consolidated basis determined in accordance with GAAP;
provided, however, that with respect to the calculation of the consolidated
interest expense of the Company, the interest expense of Unrestricted Subsidiaries shall be
excluded.




          “Consolidated Net Income” means, with respect to any Person for any period, the aggregate of
the Net Income of such Person and its Subsidiaries or, if such Person is the Company, of the
Company and its Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided, however, that: (a) the Net Income of any Person
that is not a Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in cash to the
referent Person, in the case of a gain, or to the extent of any contributions or other payments by
the referent Person, in the case of a loss; (b) the Net Income of any Person that is a Subsidiary
that is not a Wholly Owned Subsidiary shall be included only to the extent of the amount of
dividends or distributions paid in cash to the referent Person; (c) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date of such acquisition
shall be excluded; (d) the Net Income of any Subsidiary of such Person shall be excluded to the




4









 




extent that the declaration or payment of dividends or similar distributions is not at the
time permitted by operation of the terms of its charter or bylaws or any other agreement,
instrument, judgment, decree, order, statute, rule or government regulation to which it is subject;
and (e) the cumulative effect of a change in accounting principles shall be excluded.




          “Consolidated Net Tangible Assets” means, with respect to any Person, the aggregate amount of
assets of such Person (less applicable reserves and other properly deductible items) after
deducting therefrom (to the extent otherwise included therein) (a) all current liabilities and (b)
all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other
like intangibles, all as set forth on the books and records of the Company and its Restricted
Subsidiaries as of the end of the most recently ended fiscal quarter and computed in accordance
with GAAP.




          “Consolidated Net Worth” means, with respect to any Person, the sum of: (a) the stockholders’
equity of such Person; plus (b) the amount reported on such Person’s most recent balance sheet with
respect to any series of preferred stock (other than Disqualified Stock) that by its terms is not
entitled to the payment of dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less: (i) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible assets of a going
concern business made within 12 months after the acquisition of such business) subsequent to the
date of this Indenture in the book value of any asset owned by such Person or a consolidated
Subsidiary of such Person; and (ii) all unamortized debt discount and expense and unamortized
deferred charges, all of the foregoing determined on a consolidated basis in accordance with GAAP.




          “Continuing Director” means, as of any date of determination, any member of the Board of
Directors of DISH Network Corporation who: (a) was a member of such Board of Directors on the date
of this Indenture; or (b) was nominated for election or elected to such Board of Directors with the
affirmative vote of a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election or was nominated for election or elected by the Principal and
his Related Parties.




          “Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
Section 11.02 or such other address as to which the Trustee may give notice to the Company.




          “Custodian” means the Trustee, as custodian with respect to the Global Notes, or any successor
entity thereto.




          “DBS” means direct broadcast satellite.




          “Default” means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.




          “Deferred Payments” means Indebtedness owed to satellite construction or launch contractors
incurred after the date of this Indenture in connection with the construction or launch of one or
more satellites of the Company or its Restricted Subsidiaries used by the Company




5









 




and/or them in the businesses described in Section 4.16 in an aggregate principal amount not
to exceed $400 million at any one time outstanding.




          “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 of this Indenture, substantially in the form of
Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not
have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.




          “Depositary” means The Depository Trust Company and any and all successors thereto appointed
as depositary hereunder and having become such pursuant to an applicable provision of this
Indenture.




          “DISH” means Dish Network Corporation, a Nevada corporation, together with each Wholly Owned
Subsidiary of DISH that beneficially owns 100% of the Equity Interests of the Company, but only so
long as DISH beneficially owns 100% of the Equity Interests of such Subsidiary.




          “Dish Network” means the DBS service of the Company and its Subsidiaries.




          “Disqualified Stock” means any Capital Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to
the date on which the Notes mature; provided, however, that any such Capital Stock
may require the issuer of such Capital Stock to make an offer to purchase such Capital Stock upon
the occurrence of certain events if the terms of such Capital Stock provide that such an offer may
not be satisfied and the purchase of such Capital Stock may not be consummated until the 91st day
after the Notes have been paid in full.




          “DNCC” means Dish Network Credit Corporation, a Colorado corporation.




          “DNLLC” means Dish Network L.L.C., a Colorado limited liability company.




          “EchoStar” means EchoStar Corporation, a Nevada corporation.




          “EchoStar I” means the Company’s high-powered direct broadcast satellite as identified in
DISH’s Annual Report on Form 10-K for the year ended December 31, 2007 and consolidated financial
statements included therein.




          “EchoStar II” means the Company’s high-powered direct broadcast satellite identified in DISH’s
Annual Report on Form 10-K for the year ended December 31, 2007 and consolidated financial
statements included therein.




          “EDBS Notes” means the 2003 EDBS Notes, the 2004 EDBS Notes and the 2006 EDBS Notes.




          “EDBS Notes Indentures” means the 2003 EDBS Notes Indentures, the 2004 EDBS Notes Indenture
and the 2006 EDBS Notes Indentures.




6









 





          “Eligible Institution” means a commercial banking institution that has combined capital and
surplus of not less than $500 million or its equivalent in foreign currency, whose debt is rated
Investment Grade at the time as of which any investment or rollover therein is made.




          “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).




          “ETC” means EchoStar Technologies L.L.C., a Texas limited liability company.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          “Exchange Notes” means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) or
pursuant to a registered exchange offer for Notes with a Private Placement Legend issued after the
Issue Date.




          “Exchange Offer” has the meaning set forth in the Registration Rights Agreement with respect
to the Notes.




          “Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement with respect to the Notes.




          “Existing Indebtedness” means the Notes and any other Indebtedness of the Company and its
Subsidiaries in existence on the date of this Indenture until such amounts are repaid.




          “FCC” means Federal Communications Commission.




          “GAAP” means United States generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, which are applicable as of the date of determination;
provided that, except as otherwise specifically provided, all calculations made for
purposes of determining compliance with the terms of the provisions of this Indenture shall utilize
GAAP as in effect on the date of this Indenture.




          “Global Note Legend” means the legend set forth in Section 2.01, which is required to be
placed on all Global Notes issued under this Indenture.




          “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes, substantially in the form of Exhibit A hereto issued in
accordance with Section 2.01 or 2.06 of this Indenture.




          “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 of America is pledged.




7









 





          “guarantee” means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness.




          “Guarantee” means a guarantee of the Notes by a Guarantor.




          “Guarantor” means any entity that executes a Guarantee of the obligations of the Company under
the Notes, and their respective successors and assigns.




          “Hedging Obligations” means, with respect to any Person, the obligations of such Person
pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying either floating or a
fixed rate of interest on a stated notional amount in exchange for periodic payments made by such
other Person calculated by applying a fixed or a floating rate of interest on the same notional
amount and shall include, without limitation, interest rate swaps, caps, floors, collars and
similar agreements designed to protect such Person against fluctuations in interest rates.




          “Holder” means a Person in whose name a Note is registered.




          “Indebtedness” means, with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect thereof) or representing
the balance deferred and unpaid of the purchase price of any property (including pursuant to
capital leases) or representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing (other than Hedging
Obligations) would appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, and also includes, to the extent not otherwise included, the amount of all obligations
of such Person with respect to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, the liquidation preference with respect
to, any Preferred Equity Interests (but excluding, in each case, any accrued dividends) as well as
the guarantee of items that would be included within this definition.




          “Indebtedness to Cash Flow Ratio” means, with respect to any Person, the ratio of: (a) the
Indebtedness of such Person and its Subsidiaries (or, if such Person is the Company, of the Company
and its Restricted Subsidiaries) as of the end of the most recently ended fiscal quarter, plus the
amount of any Indebtedness incurred subsequent to the end of such fiscal quarter; to (b) such
Person’s Consolidated Cash Flow for the most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on which such event for
which such calculation is being made shall occur (the “Measurement Period”); provided,
however; that if such Person or any of its Subsidiaries (or, if such Person is the Company,
any of its Restricted Subsidiaries) consummates an acquisition, merger or other business
combination or an Asset Sale or other disposition of assets subsequent to the commencement of the
Measurement Period for which the calculation of the Indebtedness to Cash Flow Ratio is made, then
the Indebtedness to Cash Flow Ratio shall be calculated giving pro




8









 




forma effect to such transaction(s) as if the same had occurred at the beginning of the
applicable period.




          “Indenture” means this Indenture, as amended or supplemented from time to time.




          “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.




          “Initial Notes” means the $750 million aggregate principal amount 7.75% Senior Notes due 2015
of the Company issued under this Indenture on the Issue Date.




          “Initial Purchaser” means, with respect to the Notes, Credit Suisse Securities (USA) LLC.




          “Investment Grade” means, with respect to a security, that such security is rated at least
BBB- or higher by S&P or Baa3 or higher by Moody’s (or, in the event of change in ratings systems,
the equivalent of such ratings by S&P or Moody’s), or the equivalent rating of another nationally
recognized statistical rating organization.




          “Investments” means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the forms of loans (including guarantees), advances or capital
contributions (excluding commission, travel and similar advances to officers and employees made in
the ordinary course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.




          “Issue Date” means May 27, 2008, the date of original issuance of the Initial Notes.




          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are authorized or required by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.




          “Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.




          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statute) of any jurisdiction).




          “Marketable Securities” means: (a) Government Securities; (b) any certificate of deposit
maturing not more than 365 days after the date of acquisition issued by, or time deposit




9









 




of, an Eligible Institution; (c) commercial paper or corporate securities maturing not more
than 18 months after the date of acquisition issued by a corporation (other than an Affiliate of
the Company) with an Investment Grade rating, at the time as of which any investment therein is
made, issued or offered by an Eligible Institution; (d) any bankers’ acceptances or money market
deposit accounts issued or offered by an Eligible Institution; and (e) any fund investing
exclusively in investments of the types described in clauses (a) through (d) above.




          “Maximum Secured Amount” means 3.75 times the Trailing Cash Flow Amount, or, if greater and
(i) following a Fall Away Event or (ii) during a period in which covenants do not apply as a result
of the occurrence of the event described in the second paragraph of Section 4.21, 15% of the
Company’s Consolidated Net Tangible Assets.




          “Moody’s” means Moody’s Investor Service, Inc.




          “Net Income” means, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP, excluding, however, any gain (but not loss), together with any
related provision for taxes on such gain (but not loss), realized in connection with any Asset Sale
(including, without limitation, dispositions pursuant to sale and leaseback transactions), and
excluding any extraordinary gain (but not loss), together with any related provision for taxes on
such extraordinary gain (but not loss) and excluding any unusual gain (but not loss) relating to
recovery of insurance proceeds on satellites, together with any related provision for taxes on such
extraordinary gain (but not loss).




          “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries, as the case may be, in respect of any Asset Sale, net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting and investment
banking fees, and sales commissions) and any relocation expenses incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that are the subject of such Asset Sale and
any reserve for adjustment in respect of the sale price of such asset or assets. Net Proceeds shall
exclude any non-cash proceeds received from any Asset Sale, but shall include such proceeds when
and as converted by the Company or any Restricted Subsidiary to cash.




          “Non-Core Assets” means: (1) all intangible present and possible future authorizations,
rights, interests and other intangible assets related to all “western” DBS orbital locations other
than the 148 degree orbital slot (as the term “western” is used by the FCC) held by the Company
and/or any of its Subsidiaries at any time; (2) all intangible present and possible future
authorizations, rights, interests and other intangible assets related to the fixed satellite
service in the Ku-band, extended Ku-band, Ka-band and C-band held by the Company and/or any of its
Subsidiaries at any time; (3) all present and possible future intangible authorizations, rights,
interests and other intangible assets related to any mobile satellite service held by the Company
and/or any of its Subsidiaries at any time; (4) all present and possible future intangible
authorizations, rights, interests and other intangible assets related to local multi-point
distribution service; and (5) any Subsidiary of the Company the assets of which consist solely of
(i) any combination of the foregoing and (ii) other assets to the extent permitted under the
provision described under the second paragraph of Section 4.19.




10









 








          “Non-Recourse Indebtedness” of any Person means Indebtedness of such Person that: (i) is not
guaranteed by any other Person (except a Wholly Owned Subsidiary of the referent Person); (ii) is
not recourse to and does not obligate any other Person (except a Wholly Owned Subsidiary of the
referent Person) in any way; (iii) does not subject any property or assets of any other Person
(except a Wholly Owned Subsidiary of the referent Person), directly or indirectly, contingently or
otherwise, to the satisfaction thereof, and (iv) is not required by GAAP to be reflected on the
financial statements of any other Person (other than a Subsidiary of the referent Person) prepared
in accordance with GAAP.




          “Non-U.S. Person” means a Person who is not a U.S. Person.




          “Notes” means the Initial Notes, the Exchange Notes and any other notes issued after the Issue
Date in accordance with the fourth paragraph of Section 2.02 of this Indenture treated as a single
class of securities.




          “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.




          “Offering” means the offering of the Notes pursuant to the Offering Memorandum.




          “Offering Memorandum” means the Offering Memorandum, dated as of May 20, 2008, relating to and
used in connection with the Offering.




          “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, Controller, Secretary or any Vice-President of such Person.




          “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, principal financial officer,
treasurer or principal accounting officer of the Company.




          “Opinion of Counsel” means an opinion from legal counsel, who may be an employee of or counsel
to the Company, any Subsidiary of the Company or the Trustee.




          “Participant” means, with respect to the Depositary, a Person who has an account with the
Depositary.




          “Permitted Investments” means: (a) Investments in the Company or in a Wholly Owned Restricted
Subsidiary that is a Guarantor; (b) Investments in Cash Equivalents and Marketable Securities; and
(c) Investments by the Company or any of its Subsidiaries in a Person if, as a result of such
Investment: (i) such Person becomes a Wholly Owned Restricted Subsidiary and becomes a Guarantor,
or (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a Wholly Owned Restricted
Subsidiary that is a Guarantor; provided that if at any time a Restricted Subsidiary of the
Company shall cease to be a Subsidiary of the Company, the




11









 




Company shall be deemed to have made a Restricted Investment in the amount of its remaining
investment, if any, in such former Subsidiary.




          “Permitted Liens” means:




          (a) Liens securing the Notes and Liens securing any Guarantee;




          (b) Liens securing the Deferred Payments;




          (c) Liens securing any Indebtedness permitted under Section 4.09 of this Indenture;
provided that such Liens under this clause (c) shall not secure Indebtedness in an amount
exceeding the Maximum Secured Amount at the time that such Lien is incurred;




          (d) Liens securing Purchase Money Indebtedness; provided that such Indebtedness was
permitted to be incurred by the terms of this Indenture and such Liens do not extend to any assets
of the Company or its Restricted Subsidiaries other than the assets so acquired;




          (e) Liens securing Indebtedness the proceeds of which are used to develop, construct, launch
or insure any satellites other than EchoStar I or EchoStar II; provided that such
Indebtedness was permitted to be incurred by the terms of this Indenture and such Liens do not
extend to any assets of the Company or its Restricted Subsidiaries other than such satellites being
developed, constructed, launched or insured, and to the related licenses, permits and construction,
launch and TT&C contracts;




          (f) Liens on orbital slots, licenses and other assets and rights of the Company,
provided that such orbital slots, licenses and other assets and rights relate solely to the
satellites referred to in clause (e) of this definition;




          (g) Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any of its Restricted Subsidiaries, provided that such
Liens were not incurred in connection with, or in contemplation of, such merger or consolidation,
other than in the ordinary course of business;




          (h) Liens on property of an Unrestricted Subsidiary at the time that it is designated as a
Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary;” provided
that such Liens were not incurred in connection with, or in contemplation of, such designation;




          (i) Liens on property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company; provided that such Liens were not incurred in
connection with, or in contemplation of, such acquisition and do not extend to any assets of the
Company or any of its Restricted Subsidiaries other than the property so acquired;




          (j) Liens to secure the performance of statutory obligations, surety or appeal bonds or
performance bonds, or landlords’, carriers’, warehousemen’s, mechanics’, suppliers’, materialmen’s
or other like Liens, in any case incurred in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate




12









 




process of law, if a reserve or other appropriate provision, if any, as is required by GAAP
shall have been made therefor;




          (k) Liens existing on the Issue Date;




          (l) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;




          (m) Liens incurred in the ordinary course of the business of the Company or any of its
Restricted Subsidiaries (including, without limitation, Liens securing Purchase Money Indebtedness)
with respect to obligations that do not exceed $100 million in principal amount in the aggregate at
any one time outstanding;




          (n) Liens securing Indebtedness in an amount not to exceed $50 million incurred pursuant to
clause (11) of the second paragraph of Section 4.09 of this Indenture;




          (o) Liens on any asset of the Company or any of its Restricted Subsidiaries securing
Indebtedness in an amount not to exceed $50 million;




          (p) Liens securing Indebtedness permitted under clause (12) of the second paragraph of Section
4.09 of this Indenture; provided that such Liens shall not extend to assets other than the
assets that secure such Indebtedness being refinanced;




          (q) any interest or title of a lessor under any Capital Lease Obligations; provided
that such Capital Lease Obligation is permitted under the other provisions of this Indenture;




          (r) Liens permitted to be incurred under the EDBS Notes Indentures;




          (s) Liens not provided for in clauses (a) through (r) above, securing Indebtedness incurred in
compliance with the terms of this Indenture; provided that the Notes are secured by the
assets subject to such Liens on an equal and ratable basis or on a basis prior to such Liens;
provided that to the extent that such Lien secured Indebtedness that is subordinated to the
Notes, such Lien shall be subordinated to and be later in priority than the Notes on the same
basis; and




          (t) extensions, renewals or refundings of any Liens referred to in clauses (a) through (q)
above; provided that (i) any such extension, renewal or refunding does not extend to any
assets or secure any Indebtedness not securing or secured by the Liens being extended, renewed or
refinanced and (ii) any extension, renewal or refunding of a Lien originally incurred pursuant to
clause (c) above shall not secure Indebtedness in an amount greater than the Maximum Secured Amount
at the time of such extension, renewal or refunding.




          “Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust or unincorporated organization




13









 




(including any subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business).




          “Preferred Equity Interest,” in any Person, means an Equity Interest of any class or classes
(however designated) which is preferred as to the payment of dividends or distributions, or as to
the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Equity Interests of any other class in such Person.




          “Principal” means Charles W. Ergen.




          “Private Placement Legend” means the legend set forth in Section 2.01 to be placed on all
Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture.




          “Purchase Money Indebtedness” means (i) Indebtedness of the Company, or any Guarantor incurred
(within 365 days of such purchase) to finance the purchase of any assets (including the purchase of
Equity Interests of Persons that are not Affiliates of the Company or the Guarantors): (a) to the
extent the amount of Indebtedness thereunder does not exceed 100% of the purchase cost of such
assets; and (b) to the extent that no more than $50 million of such Indebtedness at any one time
outstanding is recourse to the Company or any of its Restricted Subsidiaries or any of their
respective assets, other than the assets so purchased; and (ii) Indebtedness of the Company or any
Guarantor which refinances Indebtedness referred to in clause (i) of this definition;
provided that such refinancing satisfies subclauses (a) and (b) of such clause (i).




          “QIB” means a “qualified institutional buyer” as defined in Rule 144A.




          “Rating Agency” or “Rating Agencies” means: (a) S&P; (b) Moody’s; or (c) if S&P or Moody’s or
both shall not make a rating of the Notes publicly available, a nationally recognized securities
rating agency or agencies, as the case may be, selected by the Company, which shall be substituted
for S&P or Moody’s or both, as the case may be.




          “Rating Decline” means the occurrence on any date from and after the date of the public notice
by the Company or another Person seeking to effect a Change of Control of an arrangement that, in
the Company’s good faith judgment, is expected to result in a Change of Control until the end of
the 60 day period following public notice of the occurrence of a Change of Control or abandonment
of the expected Change of Control transaction (which period shall be extended so long as the rating
of the Notes is under publicly announced consideration for possible downgrade by any Rating Agency)
of a decline in the rating of the Notes by either Rating Agency by at least one notch in the
gradation of the rating scale (e.g., + or — for S&P or 1, 2 and 3 for Moody’s) from such Rating
Agency’s rating of the Notes.




          “Receivables Trust” means a trust organized solely for the purpose of securitizing the
accounts receivable held by the Accounts Receivable Subsidiary that: (a) shall not engage in any
business other than (i) the purchase of accounts receivable or participation interests therein from
the Accounts Receivable Subsidiary and the servicing thereof, (ii) the issuance of and distribution
of payments with respect to the securities permitted to be issued under clause (b) below and (iii)
other activities incidental to the foregoing; (b) shall not at any time incur




14









 




Indebtedness or issue any securities, except (i) certificates representing undivided interests
in the trust issued to the Accounts Receivable Subsidiary and (ii) debt securities issued in an
arm’s length transaction for consideration solely in the form of cash and Cash Equivalents, all of
which (net of any issuance fees and expenses) shall promptly be paid to the Accounts Receivable
Subsidiary; and (c) shall distribute to the Accounts Receivable Subsidiary as a distribution on the
Accounts Receivable Subsidiary’s beneficial interest in the trust no less frequently than once
every six months all available cash and Cash Equivalents held by it, to the extent not required for
reasonable operating expenses or reserves therefor or to service any securities issued pursuant to
clause (b) above that are not held by the Accounts Receivable Subsidiary.




          “Registration Rights Agreement” means the Registration Rights Agreement for the Notes, dated
as of May 27, 2008, by and among the Company, the Guarantors, the Initial Purchaser and any other
parties named on the signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time.




          “Regulation S” means Regulation S promulgated under the Securities Act.




          “Regulation S Global Note” means one or more Global Notes substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or its nominee,
which, in the aggregate, are equal to the outstanding principal amount of the Notes initially sold
by the Company in reliance on Rule 903 of Regulation S.




          “Related Party” means, with respect to the Principal, (a) the spouse and each immediate family
member of the Principal and (b) each trust, corporation, partnership or other entity of which the
Principal beneficially holds an 80% or more controlling interest.




          “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.




          “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.




          “Restricted Global Note” means a Global Note bearing the Private Placement Legend.




          “Restricted Investment” means an Investment other than Permitted Investments.




          “Restricted Period” means the 40-day distribution compliance period as defined in Regulation
S.




          “Restricted Subsidiary” or “Restricted Subsidiaries” means any corporation, association or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the




15









 




election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by the Company or one or more Subsidiaries of the Company or a combination
thereof, other than Unrestricted Subsidiaries.




          “Rule 144” means Rule 144 promulgated under the Securities Act.




          “Rule 144A” means Rule 144A promulgated under the Securities Act.




          “Rule 903” means Rule 903 promulgated under the Securities Act.




          “Rule 904” means Rule 904 promulgated under the Securities Act.




          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Companies, Inc.




          “Satellite Receiver” means any satellite receiver capable of receiving programming from the
Dish Network.




          “SEC” means the Securities and Exchange Commission.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Shelf Registration Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.




          “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act, as
such regulation is in effect on the Issue Date.




          “Subsidiary” or “Subsidiaries” means, with respect to any Person, any corporation, association
or other business entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of such Person or a combination thereof.




          “TIA” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture.




          “Trailing Cash Flow Amount” means the Consolidated Cash Flow of the Company during the most
recent four fiscal quarters of the Company for which financial statements are available;
provided that if the Company or any of its Restricted Subsidiaries consummates a merger,
acquisition or other business combination or an Asset Sale or other disposition of assets
subsequent to the commencement of such period but prior to or contemporaneously with the event for
which the calculation of Trailing Cash Flow Amount is made, then Trailing Cash Flow Amount shall be
calculated giving pro forma effect to such material acquisition or Asset Sale or other disposition
of assets, as if the same had occurred at the beginning of the applicable period.




16









 








          “Trustee” means the party named as such above until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.




          “TT&C” means telemetry, tracking and control.




          “U.S. Person” means a U.S. Person as defined in Rule 902(k) under the Securities Act.




          “Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not
required to bear the Private Placement Legend.




          “Unrestricted Global Note” means a permanent Global Note substantially in the form of
Exhibit A attached hereto that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing Notes that do not bear the
Private Placement Legend.




          “Unrestricted Subsidiary” or “Unrestricted Subsidiaries” means: (A) E-Sat, Inc., Wright Travel
Corporation, EchoStar Real Estate Corporation V, WS Acquisition L.L.C. and Echosphere De Mexico S.
De R.L. De C.V.; and (B) any Subsidiary of the Company designated as an Unrestricted Subsidiary in
a resolution of the Board of Directors:





     (a) no portion of the Indebtedness or any other obligation (contingent or otherwise) of
which, immediately after such designation: (i) is guaranteed by the Company or any other
Subsidiary of the Company (other than another Unrestricted Subsidiary); (ii) is recourse to
or obligates the Company or any other Subsidiary of the Company (other than another
Unrestricted Subsidiary) in any way; or (iii) subjects any property or asset of the Company
or any other Subsidiary of the Company (other than another Unrestricted Subsidiary),
directly or indirectly, contingently or otherwise, to satisfaction thereof;




     (b) with which neither the Company nor any other Subsidiary of the Company (other than
another Unrestricted Subsidiary) has any contract, agreement, arrangement, understanding or
is subject to an obligation of any kind, written or oral, other than on terms no less
favorable to the Company or such other Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; and




     (c) with which neither the Company nor any other Subsidiary of the Company (other than
another Unrestricted Subsidiary) has any obligation: (i) to subscribe for additional shares
of Capital Stock or other equity interests therein; or (ii) to maintain or preserve such
Subsidiary’s financial condition or to cause such Subsidiary to achieve certain levels of
operating results;


provided, however, that neither DNLLC nor Echosphere L.L.C. may be designated as an
Unrestricted Subsidiary. If at any time after the date of this Indenture the Company designates an
additional Subsidiary (other than ETC or a Subsidiary that constitutes a Non-Core Asset) as an
Unrestricted Subsidiary, the Company will be deemed to have made a Restricted Investment in


17









 






an amount equal to the fair market value (as determined in good faith by the Board of Directors of
the Company evidenced by a resolution of the Board of Directors of the Company and set forth in an
Officers’ Certificate delivered to the Trustee no later than ten business days following a request
from the Trustee, which certificate shall cover the six months preceding the date of the request)
of such Subsidiary and to have incurred all Indebtedness of such Unrestricted Subsidiary. An
Unrestricted Subsidiary may be designated as a Restricted Subsidiary of the Company if, at the time
of such designation after giving pro forma effect thereto, no Default or Event of Default shall
have occurred or be continuing.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing (a) the then outstanding principal amount of such Indebtedness
into (b) the total of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such payment.




          “Wholly Owned Restricted Subsidiary” means a Wholly Owned Subsidiary of the Company that is a
Restricted Subsidiary.




          “Wholly Owned Subsidiary” means, with respect to any Person, any Subsidiary all of the
outstanding voting stock (other than directors’ qualifying shares) of which is owned by such
Person, directly or indirectly.




SECTION 1.02. Other Definitions.




	 	 	 
	 	 	Defined
	Term	 	in Section
	“Affiliate Transaction”

	 	4.11
	“Asset Sale”

	 	4.10
	“Change of Control Offer”

	 	4.15
	“Change of Control Payment”

	 	4.15
	“Change of Control Payment Date”

	 	4.15
	“Company”

	 	Preamble
	“Covenant Defeasance”

	 	8.03
	“DTC”

	 	2.01
	“ETC Amount Due

	 	4.19
	“Event of Default”

	 	6.01
	“Excess Proceeds”

	 	4.10
	“Excess Proceeds Offer”

	 	3.08
	“Fall Away Event”

	 	4.21
	“Fall Away Covenants”

	 	4.21
	“H.15 Statistical Release”

	 	3.07
	“incur”

	 	4.09
	“Legal Defeasance”

	 	8.02
	“Make-Whole Premium”

	 	3.07
	“Non-Core Asset Amount Due”

	 	4.19






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	 	 	Defined
	Term	 	in Section
	“Offer Amount”

	 	3.08
	“Offer Period”

	 	3.08
	“Paying Agent”

	 	2.03
	“Payment Default”

	 	6.01
	“Payout”

	 	4.19
	“Permitted Refinancing”

	 	4.09
	“Private Placement Legend”

	 	2.01
	“Purchase Date”

	 	3.08
	“Refinancing Indebtedness”

	 	4.09
	“Registrar”

	 	2.03
	“Remaining Term”

	 	3.07
	“Restricted Payments”

	 	4.07
	“Treasury Yield”

	 	3.07






SECTION 1.03. Incorporation by Reference of Trust Indenture Act.




          Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.




          The following TIA terms used in this Indenture have the following meanings:




          “indenture securities” means the Notes;




          “indenture security Holder” means a Holder of a Note;




          “indenture to be qualified” means this Indenture;




          “indenture trustee” or “institutional trustee” means the Trustee;




          “obligor” on the Notes means each of the Company and any successor obligor upon the Notes.




          All other terms used in this Indenture that are defined by the TIA, defined by reference to
another statute or defined by SEC rule under the TIA have the meanings so assigned to them.




SECTION 1.04. Rules of Construction.





     Unless the context otherwise requires:




     (1) a term has the meaning assigned to it;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) “or” is not exclusive;



19









 






     (4) words in the singular include the plural, and in the plural include the singular;
and




     (5) provisions apply to successive events and transactions.



ARTICLE 2




THE NOTES




SECTION 2.01. Form and Dating.




          The Notes and the Trustee’s certificate of authentication shall be substantially in the form
of Exhibit A hereto, the terms of which are incorporated in and made a part of this
Indenture. The Notes may have notations, legends or endorsements approved as to form by the
Company, and required by law, stock exchange rule, agreements to which the Company is subject or
usage. Each Note shall be dated the date of its authentication. The Notes shall be issuable only in
denominations of $1,000 and integral multiples thereof.




          The Notes shall initially be issued in the form of one or more Global Notes and the Depository
Trust Company (“DTC”), its nominees, and their respective successors, shall act as the Depositary
with respect thereto. Each Global Note shall (i) be registered in the name of the Depositary for
such Global Note or the nominee of such Depositary, (ii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary’s instructions, and (iii) shall bear a legend (the
“Global Note Legend”) substantially to the following effect:





UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A
SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE



20









 







DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



          Except as permitted by Section 2.06(g), any Note not registered under the Securities Act shall
bear the following legend (the “Private Placement Legend”) on the face thereof:





THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND
OTHERWISE IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40 DAY DISTRIBUTION
COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE
THE DELIVERY OF AN OPINION OF



21









 







COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.


The Trustee must refuse to register any transfer of a Note bearing the Private Placement Legend
that would violate the restrictions described in such legend.




SECTION 2.02. Form of Execution and Authentication.




          Two Officers of the Company shall sign the Notes for the Company by manual or facsimile
signature. The Company’s seal may be reproduced on the Notes.




          If an Officer whose signature is on a Note no longer holds that office at the time the Note is
authenticated, the Note shall nevertheless be valid.




          A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature of the Trustee shall be conclusive evidence that the Note has been authenticated under
this Indenture.




          The Trustee shall authenticate (i) Initial Notes for original issue on the Issue Date in an
aggregate principal amount of $750 million, (ii) pursuant to the Exchange Offer, Exchange Notes
from time to time for issue only in exchange for a like principal amount of Initial Notes and (iii)
subject to compliance with Section 4.09, one or more series of Notes for original issue after the
Issue Date (such Notes to be substantially in the form of Exhibit A) in an unlimited amount
(and if issued with a Private Placement Legend, the same principal amount of Exchange Notes in
exchange therefor upon consummation of a registered exchange offer) in each case upon written
orders of the Company in the form of an Officers’ Certificate, which Officers’ Certificate shall,
in the case of any issuance pursuant to clause (iii) above, certify that such issuance is in
compliance with Section 4.09. In addition, each such Officers’ Certificate shall specify the amount
of Notes to be authenticated, the date on which the Notes are to be authenticated, whether the
Securities are to be Initial Notes, Exchange Notes or Notes issued under clause (iii) of the
preceding sentence and the aggregate principal amount of Notes outstanding on the date of
authentication, and shall further specify the amount of such Notes to be issued as a Global Note or
Definitive Notes. Such Notes shall initially be in the form of one or more Global Notes, which (i)
shall represent, and shall be denominated in an amount equal to the aggregate principal amount of,
the Notes to be issued, (ii) shall be registered in the name of the Depositary for such Global Note
or Notes or its nominee and (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction. All Notes issued under this Indenture shall vote and consent
together on all matters as one class and no series of Notes will have the right to vote or consent
as a separate class on any matter.




          The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. Unless limited by the terms of such appointment, an authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or any Affiliate of the Company.




22









 





SECTION 2.03. Registrar and Paying Agent.




          The Company shall maintain (i) an office or agency where Notes may be presented for
registration of transfer or for exchange (including any co-registrar, the “Registrar”) and (ii) an
office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any
additional paying agent. The Company may change any Paying Agent, Registrar or co-registrar without
prior notice to any Holder of a Note. The Company shall notify the Trustee and the Trustee shall
notify the Holders of the Notes of the name and address of any Agent not a party to this Indenture.
The Company may act as Paying Agent, Registrar or co-registrar. The Company shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, or fails to give the foregoing
notice, the Trustee shall act as such, and shall be entitled to appropriate compensation in
accordance with Section 7.07.




          The Company initially appoints the Trustee as Registrar, Paying Agent and agent for service of
notices and demands in connection with the Notes.




SECTION 2.04. Paying Agent to Hold Money in Trust.




          The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of the Holders of the Notes or the Trustee all
money held by the Paying Agent for the payment of principal of, premium, if any, and interest on
the Notes, and shall notify the Trustee of any Default by the Company in making any such payment.
While any such Default continues, the Trustee may require a Paying Agent to pay all money held by
it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company)
shall have no further liability for the money delivered to the Trustee. If the Company acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders
of the Notes all money held by it as Paying Agent.




SECTION 2.05. Lists of Holders of the Notes.




          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of the Notes and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders of the Notes, including the aggregate
principal amount of the Notes held by each thereof, and the Company shall otherwise comply with TIA
Section 312(a).




23









 








SECTION 2.06. Transfer and Exchange.




          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to
the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary. All Global Notes will be
exchanged by the Company for Definitive Notes if (i) the Company delivers to the Trustee notice
from the Depositary that it is unwilling or unable to continue to act as Depositary and a successor
Depositary is not appointed by the Company within 90 days after the date of such notice from the
Depositary, (ii) the Depositary has ceased to be a clearing agency registered under the Exchange
Act or (iii) there shall have occurred and be continuing a Default or an Event of Default under
this Indenture and the Depositary shall have so requested. In any such case, the Company will
notify the Trustee in writing that, upon surrender by the Direct Participants and Indirect
Participants of their interest in such Global Note, Certificated Notes will be issued to each
Person that such Direct Participants and Indirect Participants and DTC identify as being the
beneficial owner of the related Notes. Global Notes also may be exchanged or replaced, in whole or
in part, as provided in Sections 2.07 and 2.10 of this Indenture. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.06 or Section 2.07 or 2.10 of this Indenture, shall be authenticated and delivered in the
form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other
than as provided in this Section 2.06. However, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) of this Indenture.




          (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer
and exchange of beneficial interests in the Global Notes shall be effected through the Depositary,
in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth in this Indenture to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with either subparagraph (i)
or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as
applicable:





          (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided,
however, that prior to the expiration of the Restricted Period, no transfer of
beneficial interests in the Regulation S Global Note may be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser) unless permitted by
applicable law and made in compliance with subparagraphs (ii) and (iii) below. Beneficial
interests in any Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note. No written
orders or instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(i) unless specifically stated above.



24









 






          (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2) instructions given
in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or, (B) (1) if Definitive Notes are at
such time permitted to be issued pursuant to this Indenture, a written order from a
Participant or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f), the requirements of this Section 2.06(b)(ii) shall be
deemed to have been satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this Indenture and the Notes
or otherwise applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.06(h).




          (iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar
receives the following:




          (A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit C hereto, including the certifications in item (1) thereof; and




          (B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Note, then the transferor must deliver a certificate in
the form of Exhibit C hereto, including the certifications in item (2)
thereof.




          (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted
Global Note may be exchanged by any Holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.06(b)(ii) above and:



25









 






          (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an “affiliate” (as defined in Rule 144) of the Company;




          (B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the Registration Rights Agreement;




          (C) such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




          (D) the Registrar receives the following:




     (y) if the Holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit D hereto, including
the certifications in item (1)(a) thereof, or




     (z) if the Holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in
item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained in this Indenture and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.



          If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall authenticate, one or more
Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to subparagraph (B) or (D) above.




          Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.




26









 








          (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.





          (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any Holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:




          (A) if the Holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such Holder in the form of Exhibit D hereto, including the
certifications in item (2)(a) thereof;




          (B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A under the Securities Act, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item (1) thereof;




          (C) if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate to the effect set forth in Exhibit C hereto, including
the certifications in item (2) thereof;




          (D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item (3)(a) thereof;




          (E) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (3)(b) thereof; or




          (F) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit C hereto, including the certifications in item (3)(c)
thereof,


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h), and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Restricted Definitive Note
in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or denominations as the Holder
of such beneficial interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive
Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.




27









 









          (ii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A Holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:




          (A) such exchange or transfer is effected pursuant to an Exchange Offer in
accordance with the Registration Rights Agreement and the Holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the Exchange Notes
or (3) a Person who is an “affiliate” (as defined in Rule 144) of the Company;




          (B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the Registration Rights Agreement;




          (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




          (D) the Registrar receives the following:




     (y) if the Holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Definitive Note that does not bear the Private Placement Legend, a
certificate from such Holder in the form of Exhibit D hereto,
including the certifications in item (1)(b) thereof; or




     (z) if the Holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive Note that
does not bear the Private Placement Legend, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (4) thereof,




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained in this Indenture and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.



          If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the




28









 




aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or
(D) above.





          (iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes. If any Holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h), and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear the Private
Placement Legend.



          (d) Transfer and Exchange of Definitive Notes for Beneficial Interests.





          (i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:




          (A) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit D hereto, including the certifications in item
(2)(b) thereof;




          (B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the effect set
forth in Exhibit C hereto, including the certifications in item (1) thereof;
or




          (C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (2) thereof,


the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global


29









 






Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above,
the Regulation S Global Note.





          (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:




          (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an “affiliate” (as
defined in Rule 144) of the Company;




          (B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the Registration Rights Agreement;




          (C) such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




          (D) the Registrar receives the following:




     (y) if the Holder of such Definitive Notes proposes to exchange
such Notes for a beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit D
hereto, including the certifications in item (1)(c) thereof; or




     (z) if the Holder of such Definitive Notes proposes to transfer
such Notes to a Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including
the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained in this Indenture and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.



          Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii),
the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.




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          (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global Notes.



          If any such exchange or transfer from an Unrestricted Definitive Note or a Restricted
Definitive Note, as the case may be, to a beneficial interest is effected pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in accordance with Section
2.02 of this Indenture, the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Unrestricted Definitive Notes or
Restricted Definitive Notes, as the case may be, so transferred.




          (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a
Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section
2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized
in writing. In addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this
Section 2.06(e).





          (i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:




          (A) if the transfer will be made pursuant to Rule 144A under the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit C
hereto, including the certifications in item (1) thereof;




          (B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit C hereto,
including the certifications in item (2) thereof; and




          (C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit C hereto, including, if the Registrar so
requests, a certification or Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such transfer is in compliance with the Securities Act.



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          (ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:




          (A) such exchange or transfer is effected pursuant to an Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an “affiliate” (as
defined in Rule 144) of the Company;




          (B) any such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the Registration Rights Agreement;




          (C) any such transfer is effected by a Broker-Dealer pursuant to an Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or




          (D) the Registrar receives the following:




     (y) if the Holder of such Restricted Definitive Notes proposes
to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit D hereto,
including the certifications in item (1)(d) thereof; or




     (z) if the Holder of such Restricted Definitive Notes proposes
to transfer such Notes to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications
in item (4) thereof; and, in each such case set forth in this
subparagraph (D), if the Registrar so requests, an Opinion of Counsel
in form reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained in this Indenture and in
the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.




          (iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a
transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.



          (f) Exchange Offer. Upon the occurrence of an Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount





32











 




of the beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are not Broker-Dealers,
(y) they are not participating in a distribution of the Exchange Notes and (z) they are not
“affiliates” (as defined in Rule 144) of the Company, and accepted for exchange in an Exchange
Offer and (ii) Definitive Notes in an aggregate principal amount equal to the principal amount of
the Restricted Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Company shall execute and the Trustee
shall authenticate and deliver to the Persons designated by the Holders of Restricted Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.




          (g) Legends. The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.





     (i) Private Placement Legend.




          (A) Except as permitted by subparagraph (B) below, each Global Note (other
than an Unrestricted Global Note) and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the Private Placement Legend.




          (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend. (ii) Global Note
Legend. Each Global Note shall bear the Global Note Legend.



          (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial
interests in a particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11.
At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged
for or transferred to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.




          (i) General Provisions Relating to Transfers and Exchanges.




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          (i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s order or
at the Registrar’s request.




          (ii) No service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.08 and 9.05).




          (iii) The Registrar shall not be required to register the transfer of or exchange any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.




          (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits of this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer or exchange.




          (v) The Company shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business on a Business Day 15
days before the day of any selection of Notes for redemption under Section 3.02 of this
Indenture and ending at the close of business on the day of selection or (B) to register the
transfer of or to exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.




          (vi) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.




          (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance
with the provisions of Section 2.02 of this Indenture.




          (viii) All certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.06 to effect a registration of
transfer or exchange may be submitted by facsimile.



SECTION 2.07. Replacement Notes.




          If any mutilated Note is surrendered to the Trustee, or the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon the written order of the Company signed by two Officers of the Company,
shall authenticate a replacement Note if the Trustee’s requirements for



34









 






replacements of Notes are met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from any loss which any of
them may suffer if a Note is replaced. Each of the Company and the Trustee may charge for its
expenses in replacing a Note.




          Every replacement Note is an obligation of the Company.




SECTION 2.08. Outstanding Notes.




          The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and those described in this Section as
not outstanding.




          If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Note is held by a protected purchaser.




          If the principal amount of any Note is considered paid under Section 4.01, it shall cease to
be outstanding and interest on it shall cease to accrue.




          Subject to Section 2.09, a Note does not cease to be outstanding because the Company, a
Subsidiary of the Company or an Affiliate of the Company holds the Note.




SECTION 2.09. Treasury Notes.




          In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, any Subsidiary of the Company or any
Affiliate of the Company shall be considered as though not outstanding, except that for purposes of
determining whether the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes which a Responsible Officer knows to be so owned shall be so considered.
Notwithstanding the foregoing, Notes that are to be acquired by the Company, any Subsidiary of the
Company or an Affiliate of the Company pursuant to an exchange offer, tender offer or other
agreement shall not be deemed to be owned by the Company, a Subsidiary of the Company or an
Affiliate of the Company until legal title to such Notes passes to the Company, such Subsidiary or
such Affiliate, as the case may be.




SECTION 2.10. Temporary Notes.




          Until definitive Notes are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Company and the Trustee consider appropriate for temporary
Notes. Without unreasonable delay, the Company shall prepare and the Trustee, upon receipt of the
written order of the Company signed by two Officers of the Company, shall authenticate definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes shall be entitled to
the same rights, benefits and privileges as definitive Notes.




35









 








SECTION 2.11. Cancellation.




          The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy canceled Notes (subject
to the record retention requirement of the Exchange Act), unless the Company directs canceled Notes
to be returned to it. The Company may not issue new Notes to replace Notes that it has redeemed or
paid or that have been delivered to the Trustee for cancellation. All canceled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to the Company, unless
by a written order, signed by two Officers of the Company, the Company shall direct that canceled
Notes be returned to it.




SECTION 2.12. Defaulted Interest.




          If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders of the Notes on a subsequent special record date, which
date shall be at the earliest practicable date but in all events at least five Business Days prior
to the payment date, in each case at the rate provided in the Notes. The Company shall, with the
consent of the Trustee, fix or cause to be fixed each such special record date and payment date. At
least 15 days before the special record date, the Company (or the Trustee, in the name of and at
the expense of the Company) shall mail to Holders of the Notes a notice that states the special
record date, the related payment date and the amount of such interest to be paid.




SECTION 2.13. Record Date.




          The record date for purposes of determining the identity of Holders of the Notes entitled to
vote or consent to any action by vote or consent authorized or permitted under this Indenture shall
be determined as provided for in TIA Section 316(c).




SECTION 2.14. CUSIP Number.




          The Company in issuing the Notes may use a “CUSIP” number and, if it does so, the Trustee
shall use the CUSIP number in notices of redemption or exchange as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the Notes and that reliance
may be placed only on the other identification numbers printed on the Notes. The Company will
promptly notify the Trustee of any change in the CUSIP number.




ARTICLE 3




REDEMPTION




SECTION 3.01. Notices to Trustee.




          If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07, it shall furnish to the Trustee, at least 35 days (unless a shorter period



36









 






is acceptable to the Trustee) but not more than 60 days before a redemption date, an Officers’
Certificate setting forth (i) the redemption date, (ii) the principal amount of Notes to be
redeemed and (iii) the redemption price. If the Company is required to make the redemption pursuant
to Section 3.08, it shall furnish the Trustee, at least one but not more than 10 Business Days
before a redemption date, an Officers’ Certificate setting forth (i) the redemption date and (ii)
the redemption price.




SECTION 3.02. Selection of Notes to Be Redeemed.




          If less than all of the Notes are to be redeemed at any time, the selection of Notes for
redemption will be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed, or if the Notes are not so
listed on a pro rata basis, by lot or in accordance with any other method the Trustee deems fair
and appropriate, provided that no Notes with a principal amount of $1,000 or less shall be
redeemed in part. In the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior
to the redemption date by the Trustee from the outstanding Notes not previously called for
redemption.




          The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of them selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.




SECTION 3.03. Notice of Redemption.




          Subject to the provisions of Sections 3.08, at least 30 days but not more than 60 days before
a redemption date, the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered address.




          The notice shall identify the Notes to be redeemed and shall state:





          (i) the redemption date;




          (ii) the redemption price;




          (iii) if any Note is being redeemed in part only, the portion of the principal amount
of such Note to be redeemed and that, after the redemption date upon surrender of such Note,
a new Note or Notes in principal amount equal to the unredeemed portion shall be issued in
the name of the Holder thereof upon cancellation of the original Note;




          (iv) the name and address of the Paying Agent;



37









 






          (v) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;




          (vi) that, unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;




          (vii) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and




          (viii) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.



          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided that the Company shall have delivered to the Trustee, at
least 35 days (unless a shorter period is acceptable to the Trustee) prior to the redemption date,
an Officers’ Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.




SECTION 3.04. Effect of Notice of Redemption.




          Once notice of redemption is mailed in accordance with Section 3.03, Notes called for
redemption become due and payable on the redemption date at the redemption price.




SECTION 3.05. Deposit of Redemption Price.




          On or prior to any redemption date, the Company shall deposit with the Trustee or with the
Paying Agent money sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed.




          On and after the redemption date, if the Company does not default in the payment of the
redemption price, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be paid to the Person in
whose name such Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes.




SECTION 3.06. Notes Redeemed in Part.




          Upon surrender and cancellation of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder of the Notes at the expense of the



38









 






Company a new Note equal in principal amount to the unredeemed portion of the Note
surrendered.




SECTION 3.07. Optional Redemption.




          Except as provided below, the Notes are not redeemable at the option of the Company prior to
May 31, 2015.




          The Notes will be subject to redemption at the option of the Company, at any time in whole, or
from time to time in part, upon not less than 30 nor more than 60 days’ notice, at a redemption
price equal to 100% of the principal amount of such Notes plus accrued and unpaid interest, if any,
to the applicable redemption date plus the “Make-Whole Premium.” The “Make-Whole Premium,” with
respect to any Note or any portion of any Note to be redeemed shall be equal to the greater of:




          (a) 1% of the principal amount of such Note or such portion of a Note being redeemed and




          (b) the excess, if any, of





          (i) the sum of the present values, calculated as of the redemption date, of:




          (A) each interest payment that, but for the redemption, would have been payable
on the Note, or portion of a Note, being redeemed on each interest payment date
occurring after the redemption date, excluding any accrued interest for the period
prior to the redemption date, plus




          (B) the principal amount that, but for the redemption, would have been payable
on the maturity date of the Note, or portion of a Note, being redeemed; over




          (ii) the principal amount of the Note, or portion of a Note, being redeemed.


The present values of interest and principal payments referred to in clause (b)(i) above will be
determined in accordance with generally accepted principles of financial analysis. The present
values will be calculated by discounting the amount of each payment of interest or principal from
the date that each such payment would have been payable, but for the redemption, to the redemption
date at a discount rate equal to the Treasury Yield, as defined below, plus 50 basis points.




          The Company shall appoint an independent investment banking institution of national standing
to calculate the Make-Whole Premium; provided that if the Company fails to appoint such an
institution at least 45 days prior to the date set for redemption or if the institution that the
Company appoints is unwilling or unable to make such calculation, such calculation shall be made by
Credit Suisse Securities (USA) LLC or, if such firm is unwilling or unable to



39









 






make such calculation, by an independent investment banking institution of national standing
appointed by the Trustee.




          For purposes of determining the Make-Whole Premium, “Treasury Yield” shall refer to an annual
rate of interest equal to the weekly average yield to maturity of United States Treasury Notes that
have a constant maturity that corresponds to the remaining term to maturity of the Notes being
redeemed, calculated to the nearest 1/12th of a year (the “Remaining Term”). The Treasury Yield
shall be determined as of the third Business Day immediately preceding the applicable redemption
date.




          The weekly average yields of United States Treasury Notes shall be determined by reference to
the most recent statistical release published by the Federal Reserve Bank of New York and
designated “H.15(519) Selected Interest Rates” or any successor release (the “H.15 Statistical
Release”). If the H.15 Statistical Release sets forth a weekly average yield for United States
Treasury Notes having a constant maturity that is the same as the Remaining Term, then the Treasury
Yield shall be equal to such weekly average yield. In all other cases, the Treasury Yield shall be
calculated by interpolation, on a straight-line basis, between the weekly average yields on the
United States Treasury Notes that have a constant maturity closest to and greater than the
Remaining Term and the United States Treasury Notes that have a constant maturity closest to and
less than the Remaining Term, in each case as set forth in the H.15 Statistical Release. Any weekly
average yields as calculated by interpolation shall be rounded to the nearest 0.01%, with any
figure of 0.005% or more being rounded upward. If weekly average yields for United States Treasury
Notes are not available in the H.15 Statistical Release or otherwise, then the Treasury Yield shall
be calculated by interpolation of comparable rates selected by the independent investment banking
institution.




          Notwithstanding the foregoing, (i) Holders of record on the relevant record date shall have
the right to receive interest due on any interest payment date that is on or prior to the
redemption date and (ii) the redemption price shall never be less than 100% of the principal amount
of the Notes being redeemed plus accrued interest to the redemption date.




          Notwithstanding the foregoing, at any time prior to May 31, 2011, the Company may redeem up to
35% of the aggregate principal amount of the Notes outstanding at a redemption price equal to
107.75% of the principal amount thereof, on the redemption date, together with accrued and unpaid
interest to such redemption date, with the net cash proceeds of any capital contributions or one or
more public or private sales (including sales to DISH, regardless of whether DISH obtained such
funds from an offering of Equity Interests or Indebtedness of DISH or otherwise) of Equity
Interests (other than Disqualified Stock) of the Company (other than proceeds from a sale to any
Subsidiary of the Company or any employee benefit plan in which the Company or any of its
Subsidiaries participates); provided that: (a) at least 65% in aggregate of the originally
issued principal amount of the Notes remains outstanding immediately after the occurrence of such
redemption; and (b) the sale of such Equity Interests is made in compliance with the terms of this
Indenture.




40









 








SECTION 3.08. Offer to Purchase by Application of Excess Proceeds.




          When the cumulative amount of Excess Proceeds that have not been applied in accordance with
Section 4.10 or this Section 3.08 exceeds $100.0 million, the Company shall be obligated to make an
offer to all Holders of the Notes (an “Excess Proceeds Offer”) to purchase the maximum principal
amount of Notes that may be purchased out of such Excess Proceeds at an offer price in cash in an
amount equal to 101% of the principal amount thereof, together with accrued and unpaid interest to
the date fixed for the closing of such offer in accordance with the procedures set forth in this
Indenture. To the extent the Company or a Restricted Subsidiary is required under the terms of
Indebtedness of the Company or such Restricted Subsidiary which is ranked equally with the Notes to
make an offer to purchase such other Indebtedness with any proceeds which constitute Excess
Proceeds under this Indenture, the Company shall make a pro rata offer to the holders of all other
pari passu Indebtedness (including the Notes) with such proceeds. If the aggregate principal amount
of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the amount of
such Excess Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness to be
purchased on a pro rata basis.




          The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five Business Days after the termination of the Offer Period
(the “Purchase Date”), the Company shall purchase the maximum principal amount of Notes that may be
purchased with such Excess Proceeds (which maximum principal amount of Notes shall be the “Offer
Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the
Excess Proceeds Offer.




          If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Excess Proceeds Offer.




          Upon the commencement of any Excess Proceeds Offer, the Company shall send, by first class
mail, a notice to each of the Holders of the Notes, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer,
shall state:





          (i) that the Excess Proceeds Offer is being made pursuant to this Section 3.08 and the
length of time the Excess Proceeds Offer shall remain open;




          (ii) the Offer Amount, the purchase price and the Purchase Date;




          (iii) that any Note not tendered or accepted for payment shall continue to accrue
interest;




          (iv) that any Note accepted for payment pursuant to the Excess Proceeds Offer shall
cease to accrue interest after the Purchase Date;



41









 






          (v) that Holders electing to have a Note purchased pursuant to any Excess Proceeds
Offer shall be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in the notice at least
three business days before the Purchase Date;




          (vi) that Holders shall be entitled to withdraw their election if the Company,
Depositary or Paying Agent, as the case may be, receives, not later than the expiration of
the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have the Note purchased;




          (vii) that, if the aggregate principal amount of Notes surrendered by Holders exceeds
the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be purchased); and




          (viii) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered.



          On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment,
on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Excess Proceeds Offer, or if less than the Offer Amount has been tendered, all
Notes or portion thereof tendered, and deliver to the Trustee an Officers’ Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.08. The Company, Depositary or Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Note tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee shall authenticate and mail or deliver such new Note, to such Holder equal in principal
amount to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Excess Proceeds Offer on the Purchase Date. To the extent that the
aggregate principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the
amount of such Excess Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. Upon completion of an Excess Proceeds Offer, the amount of Excess Proceeds
shall be reset at zero.




          Other than as specifically provided in this Section 3.08, any purchase pursuant to this
Section 3.08 shall be made pursuant to the provisions of Sections 3.01 through 3.06.




42









 








ARTICLE 4




COVENANTS




SECTION 4.01. Payment of Notes.




          The Company shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Company,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by or on behalf of the Company
in immediately available funds and designated for and sufficient to pay all principal, premium, if
any, and interest then due.




          The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.




SECTION 4.02. Maintenance of Office or Agency.




          The Company shall maintain an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.




          The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency for such purposes. The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.




          The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03.




SECTION 4.03. Reports.




          (a) In the event (i) that the Company is no longer subject to the reporting requirements of
Section 13(a) and 15(d) under the Exchange Act and (ii) any Notes are outstanding, the Company will
furnish to the Holders of the Notes all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms




43









 







10-Q and 10-K if the Company were required to file such forms and, with respect to the annual
information only, a report thereon by our independent registered public accounting firm.




          (b) The Company shall provide the Trustee with a sufficient number of copies of all documents
and information that the Trustee may be required to deliver to the Holders of the Notes under this
Section 4.03.




SECTION 4.04. Compliance Certificate.




          (a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal
year, an Officers’ Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge each entity has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture
including, without limitation, a default in the performance or breach of Section 4.07, Section
4.09, Section 4.10 or Section 4.15 (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have knowledge and what
action each is taking or proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action each is taking or proposes to take with respect thereto.




          (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of (i) any Default or Event of Default, or (ii) any
default under any Indebtedness referred to in Section 6.01(f) or (g) of this Indenture, an
Officers’ Certificate specifying such Default, Event of Default or default and what action the
Company or any of its Affiliates is taking or proposes to take with respect thereto.




SECTION 4.05. Taxes.




          The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except as contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.




SECTION 4.06. Stay, Extension and Usury Laws.




          The Company covenants (to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the



44









 






execution of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.




SECTION 4.07. Limitation on Restricted Payments.




          Neither the Company nor any of its Restricted Subsidiaries may, directly or indirectly:




          (a) declare or pay any dividend or make any distribution on account of any Equity Interests of
the Company other than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company;




          (b) purchase, redeem or otherwise acquire or retire for value any Equity Interests of DISH,
the Company or any of their respective Subsidiaries or Affiliates, other than any such Equity
Interests owned by the Company or by any Wholly Owned Restricted Subsidiary;




          (c) purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that
is expressly subordinated in right of payment to the Notes or the Guarantees, except:





          (i) in accordance with the scheduled mandatory redemption, sinking fund or repayment
provisions set forth in the original documentation governing such Indebtedness and




          (ii) the purchase, repurchase or other acquisition of subordinated Indebtedness with a
stated maturity earlier than the maturity of the Notes or the Guarantees purchased in
anticipation of satisfying a payment of principal at the stated maturity thereof, within one
year of such stated maturity;



          (d) declare or pay any dividend or make any distribution on account of any Equity Interests of
any Restricted Subsidiary, other than:





          (i) to the Company or any Wholly Owned Restricted Subsidiary; or




          (ii) to all holders of any class or series of Equity Interests of such Restricted
Subsidiary on a pro rata basis; provided that in the case of this clause (ii), such
dividends or distributions may not be in the form of Indebtedness or Disqualified Stock; or



          (e) make any Restricted Investment (all such prohibited payments and other actions set forth
in clauses (a) through (e) being collectively referred to as “Restricted Payments”), unless, at the
time of such Restricted Payment:





          (i) no Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof;



45









 






          (ii) after giving effect to such Restricted Payment and the incurrence of any
Indebtedness the net proceeds of which are used to finance such Restricted Payment, the
Indebtedness to Cash Flow Ratio of the Company would not have exceeded 8.0 to 1; and




          (iii) such Restricted Payment, together with the aggregate of all other Restricted
Payments made by the Company after December 28, 2001, is less than the sum of:




          (A) the difference of




     (x) cumulative Consolidated Cash Flow of the Company determined
at the time of such Restricted Payment (or, in case such Consolidated
Cash Flow shall be a deficit, minus 100% of such deficit); minus




     (y) 120% of Consolidated Interest Expense of the Company, each
as determined for the period (taken as one accounting period) from
January 1, 2002 to the end of the Company’s most recently ended
fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment; plus




          (B) an amount equal to 100% of the aggregate net cash proceeds and, in the case
of proceeds consisting of assets used in or constituting a business permitted under
Section 4.16 of this Indenture, 100% of the fair market value of the aggregate net
proceeds other than cash received by the Company either from capital contributions
from DISH, or from the issue or sale (including an issue or sale to DISH) of Equity
Interests (other than Disqualified Stock) of the Company (other than Equity
Interests sold to any Subsidiary of the Company), since December 28, 2001; plus




          (C) if any Unrestricted Subsidiary is designated by the Company as a Restricted
Subsidiary, an amount equal to the fair market value of the net Investment by the
Company or a Restricted Subsidiary in such Subsidiary at the time of such
designation; provided, however, that the foregoing sum shall not
exceed the amount of the Investments made by the Company or any Restricted
Subsidiary in any such Unrestricted Subsidiary since December 28, 2001; plus




          (D) 100% of any cash dividends and other cash distributions received by the
Company and its Wholly Owned Restricted Subsidiaries from an Unrestricted Subsidiary
since December 28, 2001 to the extent not included in cumulative Consolidated Cash
Flow of the Company; plus




          (E) to the extent not included in clauses (A) through (D) above, an amount
equal to the net reduction in Investments of the Company and its Restricted
Subsidiaries since December 28, 2001 resulting from payments in cash



46









 







of interest on Indebtedness, dividends, or repayment of loans or advances, or
other transfers of property, in each case, to the Company or to a Wholly Owned
Restricted Subsidiary or from the net cash proceeds from the sale, conveyance or
other disposition of any such Investment; provided, however, that
the foregoing amount shall not exceed, with respect to any Person in whom such
Investment was made, the amount of Investments previously made by the Company or any
Restricted Subsidiary in such Person which were included in computations made
pursuant to this clause (iii).



          The foregoing provisions will not prohibit the following (provided that with respect
to clauses (2), (3), (5), (6), (7), (8), (9), (11), and (12) below, no Default or Event of Default
shall have occurred and be continuing):





     (1) the payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at such date of declaration such payment would have complied with
the provisions of this Indenture;




     (2) the redemption, repurchase, retirement or other acquisition of any Equity Interests
of the Company in exchange for, or out of the net proceeds of the substantially concurrent
capital contribution from DISH or from the substantially concurrent issue or sale (including
to DISH) of Equity Interests (other than Disqualified Stock) of the Company (other than
Equity Interests issued or sold to any Subsidiary of the Company);




     (3) Investments in an aggregate amount not to exceed $500 million plus, to the extent
not included in Consolidated Cash Flow, an amount equal to the net reduction in such
Investments resulting from payments in cash of interest on Indebtedness, dividends or
repayment of loans or advances, or other transfers of property, in each case, to the Company
or to a Wholly Owned Restricted Subsidiary or from the net cash proceeds from the sale,
conveyance or other disposition of any such Investment; provided, however,
that the foregoing sum shall not exceed, with respect to any Person in whom such Investment
was made, the amount of Investments previously made by the Company or any Restricted
Subsidiary in such Person pursuant to this clause (3);




     (4) Investments to fund the financing activity of DNCC in the ordinary course of its
business in an amount not to exceed, as of the date of determination, the sum of (A) $100
million plus (B) 50% of the aggregate cost to DNCC for each Satellite Receiver purchased by
DNCC and leased by DNCC to a retail consumer in excess of 100,000 units;




     (5) cash dividends or distributions to DISH to the extent required for the purchase,
redemption, repurchase or other acquisition or retirement for value of employee stock
options to purchase Capital Stock of DISH, or Capital Stock of DISH issued pursuant to any
management equity plan, stock option plan or other management or employee benefit plan or
agreement, in an aggregate amount not to exceed $25 million in any calendar year;




     (6) a Permitted Refinancing;



47









 






     (7) Investments in an amount equal to 100% of the aggregate net proceeds (whether or
not in cash) received by the Company or any Wholly Owned Restricted Subsidiary from capital
contributions from DISH or from the issue and sale (including a sale to DISH) of Equity
Interests (other than Disqualified Stock) of the Company (other than Equity Interests issued
or sold to a Subsidiary of DISH), on or after December 28, 2001; plus, to the extent not
included in Consolidated Cash Flow, an amount equal to the net reduction in such Investments
resulting from payments in cash of interest on Indebtedness, dividends, or repayment of
loans or advances, or other transfers of property, in each case, to the Company or to a
Wholly Owned Restricted Subsidiary or from the net cash proceeds from the sale, conveyance,
or other disposition of any such Investment; provided, however, that the
foregoing amount shall not exceed, with respect to any Person in whom such Investment was
made, the amount of Investments previously made by the Company or any Restricted Subsidiary
in such Person pursuant to this clause (7) in each case, provided that such
Investments are in businesses of the type described under Section 4.16 of this Indenture;




     (8) Investments in any Restricted Subsidiary which is not a Wholly Owned Restricted
Subsidiary, but which is a Guarantor and Investments in the form of intercompany debt with
any direct or indirect parent company or any Wholly Owned Subsidiary of such direct or
indirect parent company provided that such debt is incurred in the ordinary course
of business and is used in a business described in Section 4.16 of this Indenture;




     (9) Investments in businesses strategically related to businesses described in Section
4.16 of this Indenture in an aggregate amount not to exceed $700 million;




     (10) cash dividends or distributions to DISH to the extent required for the purchase of
odd-lots of Equity Interests of DISH, in an aggregate amount not to exceed $15 million in
any calendar year;




     (11) the making of any Restricted Payment (including the receipt of any Investment)
permitted under or resulting from any transaction permitted under Section 4.19 of this
Indenture occurring any time after December 28, 2001; provided that all conditions
to any such Restricted Payment set forth in such Section 4.19 are satisfied;




     (12) Investments made as a result of the receipt of non-cash proceeds from Asset Sales
made in compliance with Section 4.10 of this Indenture and Investments entered into in
connection with an acquisition of assets used in or constituting a business permitted under
Section 4.16 of this Indenture as a result of “earn-outs” or other deferred payments or
similar obligations;




     (13) any Restricted Payment permitted under any of the EDBS Notes Indentures;




     (14) Investments which are used to pay for the construction, launch, operation or
insurance of satellites owned or leased by the Company or any Subsidiaries of the Company in
an amount not to exceed $500 million;



48









 






     (15) Investments in a foreign direct-to-home satellite provider in an amount not to
exceed $500 million; provided that the Investments are made through the supply of
satellite receivers and related equipment to the provider, or the proceeds from the
Investments are used to purchase satellite receivers and related equipment from DISH or a
Subsidiary of DISH;




     (16) the redemption, repurchase, defeasance or other acquisition or retirement for
value of subordinated Indebtedness, including premium, if any, and accrued and unpaid
interest, with the proceeds of, or in exchange for: (a) the proceeds of a capital
contribution or a substantially concurrent offering of, shares of Capital Stock of the
Company (or options, warrants or other rights to acquire such Capital Stock), or (b)
Indebtedness that is at least as subordinated in right of payment to the Notes, including
premium, if any, and accrued and unpaid interest, as the Indebtedness being redeemed,
repurchased, defeased, acquired or retired and with a final maturity equal to or greater
than, and a Weighted Average Life to Maturity equal to or greater than, the final maturity
and Weighted Average Life to Maturity, respectively, of the Indebtedness being redeemed,
repurchased, defeased, acquired or retired;




     (17) repurchases of Equity Interests deemed to occur upon (a) the exercise of stock
options, warrants or convertible securities issued as compensation if such Equity Interests
represent a portion of the exercise price thereof and (b) the withholding of a portion of
the Equity Interests granted or awarded to an employee to pay taxes associated therewith (or
a dividend or distribution to finance such a deemed repurchase by DISH);




     (18) amounts paid by the Company to DISH or any other person with which the Company is
included in a consolidated tax return equal to the amount of federal, state and local income
taxes payable in respect of the income of the Company and its Subsidiaries, including
without limitation, any payments made in accordance with tax allocation agreements between
the Company and its Affiliates in effect from time to time; and




     (19) the making of a Restricted Payment so long as after giving effect to such
Restricted Payment and the incurrence of any Indebtedness the net proceeds of which are used
to finance such Restricted Payment, the Company’s Indebtedness to Cash Flow Ratio would not
exceed 3.5 to 1.



          Restricted Payments made pursuant to clauses (1), (2), (4), (7), (16) (but only to the extent
that net proceeds received by the Company as set forth in such clause (2), (7) or (16) were
included in the computations made in clause (iii)(B) of the first paragraph of this Section 4.07),
(10) or (13) (but only to the extent such Restricted Payment is included as a Restricted Payment in
any computation made pursuant to clause (iii) of the first paragraph of Section 4.07 contained in
the EDBS Notes Indentures), shall be included as Restricted Payments in any computation made
pursuant to clause (iii) of the first paragraph of this Section 4.07.




          Restricted Payments made pursuant to clauses (3), (5), (6), (7), (16) (but only to the extent
that net proceeds received by the Company as set forth in such clause (7) or (16) were not included
in the computations made in clause (iii)(B) of the first paragraph of this



49









 






Section 4.07), (8), (9), (11), (12), (13) (to the extent such Restricted Payment is not
included as a Restricted Payment in any computation made pursuant to clause (iii) of the first
paragraph of Section 4.07 contained in an EDBS Notes Indenture), (14), (15), (17), (18) or (19)
shall not be included as Restricted Payments in any computation made pursuant to clause (iii) of
the first paragraph of this Section 4.07.




          If the Company or any Restricted Subsidiary makes an Investment that was included in
computations made pursuant to this Section 4.07 and the Person in which such Investment was made
subsequently becomes a Restricted Subsidiary that is a Guarantor, to the extent such Investment
resulted in a reduction in the amounts calculated under clause (iii) of the first paragraph of or
under any other provision of this Section 4.07, then such amount shall be increased by the amount
of such reduction.




          Not later than ten Business Days following a request from the Trustee, the Company shall
deliver to the Trustee an Officers’ Certificate stating that each Restricted Payment made in the
six months preceding the date of the request was permitted and setting forth the basis upon which
the calculations required by this Section 4.07 were computed, which calculations shall be based
upon the Company’s latest available financial statements.





			
	SECTION 4.08.	 	Limitations on Dividend and Other Payment Restrictions Affecting
Subsidiaries.





          The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to:




          (a) pay dividends or make any other distribution to the Company or any of its Restricted
Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or
measured by, its profits, or pay any Indebtedness owed to the Company or any of its Subsidiaries;




          (b) make loans or advances to the Company or any of its Subsidiaries; or




          (c) transfer any of its properties or assets to the Company or any of its Subsidiaries; except
for such encumbrances or restrictions existing under or by reasons of:





          (i) Existing Indebtedness and existing agreements as in effect on the Issue Date;




          (ii) applicable law or regulation;




          (iii) any instrument governing Acquired Debt as in effect at the time of acquisition
(except to the extent such Indebtedness was incurred in connection with, or in contemplation
of, such acquisition), which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired, provided that the Consolidated Cash Flow of such Person
shall not be taken into account in determining whether such acquisition was permitted by the
terms of this Indenture, except to the extent that dividends or other



50









 







distributions are permitted notwithstanding such encumbrance or restriction and could
have been distributed;




          (iv) by reason of customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices;




          (v) Refinancing Indebtedness (as defined in Section 4.09 of this Indenture);
provided that the restrictions contained in the agreements governing such
Refinancing Indebtedness are no more restrictive than those contained in the agreements
governing the Indebtedness being refinanced;




          (vi) this Indenture or any of the Notes;




          (vii) Permitted Liens; or




          (viii) any agreement for the sale of any Subsidiary or its assets that restricts
distributions by that Subsidiary pending its sale; provided that during the entire
period in which such encumbrance or restriction is effective, such sale (together with any
other sales pending) would be permitted under the terms of this Indenture.



SECTION 4.09. Limitation on Incurrence of Indebtedness.




          The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt);
provided, however, that, notwithstanding the foregoing the Company and any
Guarantor may incur Indebtedness (including Acquired Debt), if, after giving effect to the
incurrence of such Indebtedness and the application of the net proceeds thereof on a pro forma
basis (including, in the case of an acquisition, merger or other business combination giving pro
forma effect to such transaction), either (a) the Indebtedness to Cash Flow Ratio of the Company
would not have exceeded 8.0 to 1 or (b) the aggregate amount of Indebtedness of the Company and the
Guarantors would not exceed $1,500 per Subscriber.




          The foregoing limitation will not apply to any of the following incurrences of Indebtedness:





     (1) Indebtedness represented by the Notes, the Guarantees thereof and this Indenture;




     (2) the incurrence by the Company or any Guarantor of Acquired Subscriber Debt not to
exceed $1,750 per Acquired Subscriber (less any amount used to incur Indebtedness pursuant
to clause (b) of the immediately preceding paragraph);




     (3) the incurrence by the Company or any Guarantor of Deferred Payments and letters of
credit with respect thereto;




     (4) Indebtedness of the Company or any Guarantor in an aggregate principal amount not
to exceed $1,050,000,000 at any one time outstanding;



51









 






     (5) Indebtedness between and among the Company and any Guarantor;




     (6) Acquired Debt of a Person incurred prior to the date upon which such Person was
acquired by the Company or any Guarantor (excluding Indebtedness incurred by such entity
other than in the ordinary course of its business in connection with, or in contemplation
of, such entity being so acquired) in an amount not to exceed (A) $250 million in the
aggregate for all such Persons other than those described in the immediately following
clause (B); and (B) Acquired Debt owed to the Company or any of its Restricted Subsidiaries;




     (7) Existing Indebtedness;




     (8) the incurrence of Purchase Money Indebtedness by the Company or any Guarantor in an
amount not to exceed the cost of construction, acquisition or improvement of assets used in
any business permitted under Section 4.16 of this Indenture, as well as any launch costs and
insurance premiums related to such assets;




     (9) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations that are incurred in the ordinary course of business and not for speculative
purposes, including without limitation Hedging Obligations covering the principal amount of
Indebtedness entered into in order to protect the Company or any of its Restricted
Subsidiaries from fluctuation in interest rates on Indebtedness;




     (10) Indebtedness of the Company or any Restricted Subsidiary in respect of performance
bonds or letters of credit of the Company or any Restricted Subsidiary or surety bonds
provided by the Company or any Restricted Subsidiary incurred in the ordinary course of
business and on ordinary business terms in connection with the businesses permitted under
Section 4.16 of this Indenture;




     (11) Indebtedness of the Company or any Guarantor the proceeds of which are used solely
to finance the construction and development of call centers owned by the Company or any of
its Restricted Subsidiaries or any refinancing thereof; provided that the aggregate
of all Indebtedness incurred pursuant to this clause (11) shall in no event exceed $100
million at any one time outstanding;




     (12) the incurrence by the Company or any Guarantor of Indebtedness issued in exchange
for, or the proceeds of which are used to extend, refinance, renew, replace, substitute or
refund in whole or in part Indebtedness referred to in the first paragraph of this Section
4.09 or in clauses (1), (2), (3), (6), (7) or (8) above (“Refinancing Indebtedness”);
provided, however, that:




          (A) the principal amount of such Refinancing Indebtedness shall not exceed the
principal amount and accrued interest of the Indebtedness so exchanged, extended,
refinanced, renewed, replaced, substituted or refunded and any premiums payable and
reasonable fees, expenses, commissions and costs in connection therewith;




          (B) the Refinancing Indebtedness shall have a final maturity equal to or later than,
and a Weighted Average Life to Maturity equal to or greater than, the final



52









 







maturity and Weighted Average Life to Maturity, respectively, of the Indebtedness being
exchanged, extended, refinanced, renewed, replaced, substituted or refunded; and




          (C) the Refinancing Indebtedness shall be subordinated in right of payment to the Notes
and the Guarantees, if at all, on terms at least as favorable to the holders of Notes as
those contained in the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, substituted or refunded (a “Permitted Refinancing”);




     (13) the guarantee by the Company or any Guarantor of Indebtedness of the Company or a
Restricted Subsidiary that was permitted to be incurred by another provision of this Section
4.09;




     (14) Indebtedness under Capital Lease Obligations of the Company or any Guarantor with
respect to no more than seven direct broadcast satellites at any time; and




     (15) Indebtedness of the Company or any Restricted Subsidiary owed to (including
obligations in respect of letters of credit for the benefit of) any Person in connection
with workers’ compensation, health, disability or other employee benefits or property,
casualty or liability insurance provided by such Person to the Company or such Restricted
Subsidiary pursuant to reimbursement or indemnification obligations to such Person, in each
case incurred in the ordinary course of business and consistent with industry practices.



          For purposes of determining compliance with this Section 4.09, if an item of Indebtedness
meets the criteria of more than one of the categories described in clauses (1) through (15) above
or is permitted to be incurred pursuant to the first paragraph of this Section 4.09 and also meets
the criteria of one or more of the categories described in clauses (1) through (15) above, the
Company shall, in its sole discretion, classify such item of Indebtedness in any manner that
complies with this Section 4.09 and may from time to time reclassify such item of Indebtedness in
any manner in which such item could be incurred at the time of such reclassification. Accrual of
interest and the accretion of accreted value will not be deemed to be an incurrence of Indebtedness
for purposes of this Section 4.09.




SECTION 4.10. Asset Sales.




          If the Company or any Restricted Subsidiary, in a single transaction or a series of related
transactions:




          (a) sells, leases (in a manner that has the effect of a disposition), conveys or otherwise
disposes of any of its assets (including by way of a sale-and-leaseback transaction), other than:





     (1) sales or other dispositions of inventory in the ordinary course of business;




     (2) sales or other dispositions to the Company or a Wholly Owned Restricted Subsidiary
of the Company by the Company or any Restricted Subsidiary;



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     (3) sales or other dispositions of accounts receivable to DNCC for cash in an amount at
least equal to the fair market value of such accounts receivable;




     (4) sales or other dispositions of rights to construct or launch satellites; and




     (5) sales or other dispositions permitted under Section 4.19 of this Indenture
(provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company shall be governed by the provisions of
Section 5.01 of this Indenture); or



          (b) issues or sells Equity Interests of any Restricted Subsidiary (other than any issue or
sale of Equity Interests of ETC or a Subsidiary which constitutes a Non-Core Asset permitted under
Section 4.19 of this Indenture);



in either case, which assets or Equity Interests: (1) have a fair market value in excess of $100
million (as determined in good faith by the Board of Directors evidenced by a resolution of the
Board of Directors set forth in an Officers’ Certificate delivered to the Trustee); or (2) are sold
or otherwise disposed of for net proceeds in excess of $100 million (each of the foregoing, an
“Asset Sale”), then:





          (A) the Company or such Restricted Subsidiary, as the case may be, must receive
consideration at the time of such Asset Sale at least equal to the fair market value (as
determined in good faith by the Board of Directors evidenced by a resolution of the Board of
Directors and set forth in an Officers’ Certificate delivered to the Trustee not later than
ten Business Days following a request from the Trustee, which certificate shall cover each
Asset Sale made in the six months preceding the date of request, as the case may be) of the
assets sold or otherwise disposed of; and




          (B) at least 75% of the consideration therefor received by the Company or such
Restricted Subsidiary, as the case may be, must be in the form of:




     (x) cash, Cash Equivalents or Marketable Securities;




     (y) any asset which is promptly (and in no event later than 180 days
after the date of transfer to the Company or a Restricted Subsidiary)
converted into cash; provided that to the extent that such
conversion is at a price that is less than the fair market value (as
determined above) of such asset at the time of the Asset Sale in which such
asset was acquired, the Company shall be deemed to have made a Restricted
Payment in the amount by which such fair market value exceeds the cash
received upon conversion; and/or




     (z) properties and capital assets (including Capital Stock of an entity
owning such property or assets so long as the receipt of such Capital Stock
otherwise complies with Section 4.07 (other than clause (12) of the second
paragraph thereof) to be used by the Company or any of its Restricted
Subsidiaries in a business permitted under Section 4.16 of this Indenture;



54









 




provided, however, that up to $100 million of assets in addition to assets
specified in clauses (x), (y) or (z) above at any one time may be considered to be cash for
purposes of this clause (B), so long as the provisions of the next paragraph are complied with as
such non-cash assets are converted to cash. The amount of any liabilities of the Company or any
Restricted Subsidiary that are assumed by or on behalf of the transferee in connection with an
Asset Sale (and from which the Company or such Restricted Subsidiary are unconditionally released)
shall be deemed to be cash for the purpose of this clause (B).




          The Net Proceeds from such Asset Sale shall be used only to acquire assets used in, or stock
or other ownership interests in a Person that upon the consummation of such Asset Sale, becomes a
Restricted Subsidiary and will be engaged primarily in, a business permitted under Section 4.16 of
this Indenture, to repurchase Notes or EDBS Notes, to prepay, repay or purchase other senior
Indebtedness or, if the Company sells any of its satellites after launch such that the Company or
its Restricted Subsidiaries own fewer than three in-orbit satellites, only to purchase a
replacement satellite. Any Net Proceeds from any Asset Sale that are not applied or invested as
provided in the preceding sentence within 365 days after such Asset Sale shall constitute “Excess
Proceeds” and shall be applied to an offer to purchase Notes and other senior Indebtedness of the
Company if and when required under Section 3.08 of this Indenture.




          Clause (B) of the second preceding paragraph shall not apply to all or such portion of the
consideration:





     (1) as is properly designated by the Company in connection with an Asset Sale as being
subject to this paragraph; and




     (2) with respect to which the aggregate fair market value at the time of receipt of all
consideration received by the Company or any Restricted Subsidiary in all such Asset Sales
so designated does not exceed the amount that the Company and its Subsidiaries are permitted
to designate as a result of the cash contributions made to the Company by DISH pursuant to
any of the EDBS Notes Indentures plus, to the extent any such consideration did not satisfy
clause (B)(x) or (B)(z) above, upon the exchange or repayment of such consideration for or
with assets which satisfy either or both such clauses, an amount equal to the fair market
value of such consideration (evidenced by a resolution of the Board of Directors and set
forth in an Officers’ Certificate delivered to the Trustee as set forth in clause (A)
above).




     In addition, clause (B) above shall not apply to any Asset Sale:




     (x) where assets not essential to the direct broadcast satellite business are
contributed to a joint venture between the Company or one of its Restricted Subsidiaries
and a third party that is not an Affiliate of DISH or any of its Subsidiaries;
provided that following the sale, lease, conveyance or other disposition the Company
or one of its Wholly Owned Restricted Subsidiaries owns at least 50% of the voting and
equity interest in such joint venture;




     (y) to the extent the consideration therefor received by the Company or any of its
Restricted Subsidiaries would constitute Indebtedness or Equity Interests of a Person



55









 







that is not an Affiliate of DISH, the Company or one of their respective Subsidiaries;
provided that the acquisition of such Indebtedness or Equity Interests is permitted
under the provisions of Section 4.07 of this Indenture; and




     (z) where the assets sold are satellites, uplink centers or call centers;
provided that, in the case of this clause (z), the Company and its Restricted
Subsidiaries continue to own at least three satellites, one uplink center and one call
center.



          (c) Transactions described under clause (xii) of Section 4.11 of this Indenture shall not be
subject to the requirements of this Section 4.10.




SECTION 4.11. Limitation on Transactions with Affiliates.




          The Company shall not and shall not permit any Restricted Subsidiary to, sell, lease, transfer
or otherwise dispose of any of its or their properties or assets to, or purchase any property or
assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with,
or for the benefit of, any Affiliate (including any Unrestricted Subsidiary) (each of the
foregoing, an “Affiliate Transaction”), unless:





     (a) such Affiliate Transaction is on terms that are no less favorable to the Company or
its Restricted Subsidiaries than those that would have been obtained in a comparable
transaction by the Company or such Subsidiaries with an unrelated Person; and




     (b) if such Affiliate Transaction involves aggregate payments in excess of $200
million, such Affiliate Transaction has either (i) been approved by a majority of the
disinterested members of the Board of Directors or (ii) if there are no disinterested
members of the Board of Directors, the Company or such Restricted Subsidiary has obtained
the favorable opinion of an independent expert as to the fairness of such Affiliate
Transaction to the Company or the relevant Restricted Subsidiary, as the case may be, from a
financial point of view, and the Company delivers to the Trustee no later than ten Business
Days following a request from the Trustee a resolution of the Board of Directors set forth
in an Officers’ Certificate certifying that such Affiliate Transaction has been so approved
and complies with clause (a) above;



provided, however, that





          (i) the payment of reasonable fees, compensation or employee benefit arrangements to,
and any indemnity provided for the benefit of, directors, officers, consultants or employees
of DISH and its Subsidiaries;




          (ii) transactions between or among the Company and its Wholly Owned Subsidiaries (other
than Unrestricted Subsidiaries);




          (iii) any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of employment arrangements, stock
options and stock ownership plans approved by the Board of Directors;



56









 






          (iv) transactions in the ordinary course of business, including loans, expense
allowances, reimbursements or extensions of credit (including indemnity arrangements)
between the Company or any of its Restricted Subsidiaries on the one hand, and any employee
of the Company or any of its Restricted Subsidiaries, on the other hand;




          (v) the granting and performance of registration rights for shares of Capital Stock of
the Company under a written registration rights agreement approved by a majority of the
members of the Board of Directors that are disinterested with respect to these transactions;




          (vi) transactions with Affiliates solely in their capacity as holders of Indebtedness
or Capital Stock of the Company or any of its Subsidiaries, so long as a significant amount
of Indebtedness or Capital Stock of the same class is also held by persons that are not
Affiliates of the Company and these Affiliates are treated no more favorably than holders of
the Indebtedness or the Capital Stock generally;




          (vii) any dividend, distribution, sale, conveyance or other disposition of any assets
of, or Equity Interests in, any Non-Core Assets or the proceeds of a sale, conveyance or
other disposition thereof, in accordance with the provisions of this Indenture;




          (viii) Restricted Payments that are permitted by Section 4.07 of this Indenture;




          (ix) any transactions pursuant to agreements in effect on the date of this Indenture
and any modifications, extensions or renewals thereof that are no less favorable to the
Company or the applicable Restricted Subsidiary than such agreement as in effect on the date
of this Indenture;




          (x) so long as it complies with clause (a) above, the provision of backhaul, uplink,
transmission, billing, customer service, programming acquisition and other ordinary course
services by the Company or any of its Restricted Subsidiaries to Satellite Communications
Operating Corporation and to Transponder Encryption Services Corporation on a basis
consistent with past practice;




          (xi) the provision of services to DISH and its Affiliates by the Company or any of its
Restricted Subsidiaries so long as no cash or other assets are transferred by the Company or
its Restricted Subsidiaries in connection with such transactions (other than up to $100
million in cash in any fiscal year and other than nonmaterial assets used in the operations
of the business in the ordinary course pursuant to the agreement governing the provision of
the services), and so long as such transaction or agreement is determined by a majority of
the members of the Board of Directors to be fair to the Company and its Restricted
Subsidiaries when taken together with all other such transactions and agreements entered
into with DISH and its Affiliates;




          (xii) the disposition of assets of the Company and its Restricted Subsidiaries in
exchange for assets of DISH and its Affiliates so long as (i) the value to



57









 







the Company in its business of the assets the Company receives is determined by a
majority of the members of the Board of Directors to be substantially equivalent or greater
than the value to the Company in its business of the assets disposed of, and (ii) the assets
acquired by the Company and its Restricted Subsidiaries constitute properties and capital
assets (including Capital Stock of an entity owning such property or assets so long as the
receipt of such Capital Stock otherwise complies with Section 4.07 of this Indenture (other
than clause (12) of the second paragraph thereof)) to be used by the Company or any of its
Restricted Subsidiaries in a business permitted as described under Section 4.16 of this
Indenture;




          (xiii) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the
Company;




          (xiv) any transactions between the Company or any Restricted Subsidiary of the Company
and any Affiliate of the Company the Equity Interests of which Affiliate are owned solely by
the Company or one of its Restricted Subsidiaries, on the one hand, and by Persons who are
not Affiliates of the Company or Restricted Subsidiaries of the Company, on the other hand;
and




          (xv) any transactions with EchoStar or any of its controlled Affiliates that have been
approved by a majority of the members of the audit committee of DISH Network Corporation or
a special committee of the board of directors of DISH Network Corporation consisting solely
of members of the board of directors of DISH Network Corporation who are not directors,
officers or employees of EchoStar or any of its controlled Affiliates


shall, in each case, not be deemed Affiliate Transactions.




SECTION 4.12. Limitation on Liens.




          The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired, or on any income or profits therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens. Solely for purposes of this Section 4.12, at any time following
a Fall Away Event or during any period (a “Suspension Period”) during which specified covenants do
not apply pursuant to the second paragraph of Section 4.21, “Restricted Subsidiaries” shall mean
the Restricted Subsidiaries on the Business Day immediately prior to the date of the Fall Away
Event or the first day of the applicable Suspension Period, as the case may be.




SECTION 4.13. Additional Subsidiary Guarantees.




          If the Company or any Guarantor transfers or causes to be transferred, in one transaction or a
series of related transactions, property or assets (including, without limitation, businesses,
divisions, real property, assets or equipment) having a fair market value (as determined in good
faith by the Board of Directors evidenced by a resolution of the Board of Directors and set forth
in an Officers’ Certificate delivered to the Trustee no later than five Business Days following
April 1 and October 1 of each year or ten Business Days following a



58









 






request from the Trustee, which Officers’ Certificate shall cover the six months preceding
April 1, October 1 or the date of request, as the case may be) exceeding the sum of $100 million in
the aggregate for all such transfers after the Issue Date (fair market value being determined as of
the time of such acquisition) to Restricted Subsidiaries that are not Guarantors, the Company
shall, or shall cause each of such Subsidiaries to which any amount exceeding such $100 million
(less such fair market value) is transferred to:





          (i) execute and deliver to the Trustee a supplemental indenture to this Indenture in
form and substance reasonably satisfactory to the Trustee pursuant to which such Subsidiary
shall unconditionally guarantee all of the Company’s obligations under the Notes on the
terms set forth in this Indenture; and




          (ii) deliver to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee that such supplemental indenture and Guarantee have been duly authorized, executed
and delivered by and are valid and binding obligations of such Subsidiary or such owner, as
the case may be;



provided, however, that the foregoing provisions shall not apply to transfers of
property or assets (other than cash) by the Company or any Guarantor in exchange for cash, Cash
Equivalents or Marketable Securities in an amount equal to the fair market value (as determined in
good faith by the Board of Directors evidenced by a resolution of the Board of Directors and set
forth in an Officers’ Certificate delivered to the Trustee no later than five Business Days
following April 1 and October 1 of each year or ten Business Days following a request from the
Trustee, which Officers’ Certificate shall cover the six months preceding April 1, October 1 or the
date of request, as the case may be) of such property or assets. In addition, if (i) the Company or
any of its Restricted Subsidiaries acquires or creates another Restricted Subsidiary or (ii) an
Unrestricted Subsidiary of the Company is redesignated as a Restricted Subsidiary or otherwise
ceases to be an Unrestricted Subsidiary, such Subsidiary shall execute a supplemental indenture to
this Indenture and deliver an opinion of counsel, each as required in the preceding sentence;
provided that no supplemental indenture or opinion shall be required if the fair market
value (as determined in good faith by the Board of Directors and set forth in an Officers’
Certificate delivered to the Trustee no later than five Business Days following April 1 and October
1 of each year or ten Business Days following a request from the Trustee, which certificate shall
cover the six months preceding such April 1, October 1 or the date of request, as the case may be)
of all such Restricted Subsidiaries created, acquired or designated since the Issue Date (fair
market value being determined as of the time of creation, acquisition or designation) does not
exceed the sum of $100 million in the aggregate minus the fair market value of the assets
transferred to any Subsidiaries of the Company which do not execute supplemental indentures
pursuant to the preceding sentences; provided further that to the extent a
Restricted Subsidiary is subject to the terms of any instrument governing Acquired Debt, as in
effect at the time of acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition) which instrument or restriction prohibits
such Restricted Subsidiary from issuing a Guarantee, such Restricted Subsidiary shall not be
required to execute such a supplemental indenture until it is permitted to issue such Guarantee
pursuant to the terms of such Acquired Debt.




59









 








SECTION 4.14. Corporate Existence.




          Subject to Article 5 of this Indenture, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its existence as a corporation, and
subject to Sections 4.10 and 4.19, the corporate, partnership or other existence of any Restricted
Subsidiary, in accordance with the respective organizational documents (as the same may be amended
from time to time) of the Company or any Restricted Subsidiary and (ii) subject to Section 4.10 and
4.19, the rights (charter and statutory), licenses and of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other existence of any
Restricted Subsidiary if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the Holders of the
Notes.




SECTION 4.15. Offer to Purchase Upon Change of Control Event.




          Upon the occurrence of a Change of Control Event, the Company shall be required to make an
offer (a “Change of Control Offer”) to each Holder of Notes to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder’s Notes at a purchase price equal to 101% of
the aggregate principal amount thereof, together with accrued and unpaid interest thereon to the
date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of
Control Event, the Company shall mail a notice to each Holder stating:




          (a) that the Change of Control Offer is being made pursuant to Section 4.15 of this Indenture;




          (b) the purchase price and the purchase date, which shall be no earlier than 30 days nor later
than 60 days after the date such notice is mailed (the “Change of Control Payment Date”);




          (c) that any Notes not tendered will continue to accrue interest in accordance with the terms
of this Indenture;




          (d) that, unless the Company defaults in the payment of the Change of Control Payment, all
Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;




          (e) that Holders will be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing
his election to have such Notes purchased;




          (f) that Holders whose Notes are being purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple thereof; and




60









 








          (g) any other information material to such Holder’s decision to tender Notes.




          The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes required in the event of a Change of
Control Event.




SECTION 4.16. Limitation on Activities of the Company.




          Neither the Company nor any of its Restricted Subsidiaries may engage in any business other
than developing, owning, engaging in and dealing with all or any part of the business of domestic
and international media, entertainment, electronics or communications, and reasonably related
extensions thereof, including but not limited to the purchase, ownership, operation, leasing and
selling of, and generally dealing in or with, one or more communications satellites and the
transponders thereon, and communications uplink centers, the acquisition, transmission, broadcast,
production and other provision of programming relating thereto and the manufacturing, distribution
and financing of equipment (including consumer electronic equipment) relating thereto.



SECTION 4.17. Intentionally Omitted.




SECTION 4.18. Accounts Receivable Subsidiary.




          The Company:




          (a) may, and may permit any of its Subsidiaries to, notwithstanding the provisions of Section
4.07 of this Indenture, make Investments in an Accounts Receivable Subsidiary:





          (i) the proceeds of which are applied within five Business Days of the making thereof
solely to finance:




          (A) the purchase of accounts receivable of the Company and its Subsidiaries; or




          (B) payments required in connection with the termination of all then existing
arrangements relating to the sale of accounts receivable or participation interests
therein by an Accounts Receivable Subsidiary (provided that the Accounts
Receivable Subsidiary shall receive cash, Cash Equivalents and accounts receivable
having an aggregate fair market value not less than the amount of such payments in
exchange therefor); and




          (ii) in the form of Accounts Receivable Subsidiary Notes to the extent permitted by
clause (b) below;



          (b) shall not, and shall not permit any of its Subsidiaries to, sell accounts receivable to an
Accounts Receivable Subsidiary except for consideration in an amount not less than that which would
be obtained in an arm’s length transaction and solely in the form of cash



61









 






or Cash Equivalents; provided that an Accounts Receivable Subsidiary may pay the
purchase price for any such accounts receivable in the form of Accounts Receivable Subsidiary Notes
so long as, after giving effect to the issuance of any such Accounts Receivable Subsidiary Notes,
the aggregate principal amount of all Accounts Receivable Subsidiary Notes outstanding shall not
exceed 20% of the aggregate purchase price paid for all outstanding accounts receivable purchased
by an Accounts Receivable Subsidiary since the Issue Date (and not written off or required to be
written off in accordance with the normal business practice of an Accounts Receivable Subsidiary);




          (c) shall not permit an Accounts Receivable Subsidiary to sell any accounts receivable
purchased from the Company or its Subsidiaries or participation interests therein to any other
Person except on an arm’s length basis and solely for consideration in the form of cash or Cash
Equivalents or certificates representing undivided interests of a Receivables Trust;
provided an Accounts Receivable Subsidiary may not sell such certificates to any other
Person except on an arm’s length basis and solely for consideration in the form of cash or Cash
Equivalents;




          (d) shall not, and shall not permit any of its Subsidiaries to, enter into any guarantee,
subject any of their respective properties or assets (other than the accounts receivable sold by
them to an Accounts Receivable Subsidiary) to the satisfaction of any liability or obligation or
otherwise incur any liability or obligation (contingent or otherwise), in each case, on behalf of
an Accounts Receivable Subsidiary or in connection with any sale of accounts receivable or
participation interests therein by or to an Accounts Receivable Subsidiary, other than obligations
relating to breaches of representations, warranties, covenants and other agreements of the Company
or any of its Subsidiaries with respect to the accounts receivable sold by the Company or any of
its Subsidiaries to an Accounts Receivable Subsidiary or with respect to the servicing thereof;
provided that neither the Company nor any of its Subsidiaries shall at any time guarantee
or be otherwise liable for the collectibility of accounts receivable sold by them;




          (e) shall not permit an Accounts Receivable Subsidiary to engage in any business or
transaction other than the purchase and sale of accounts receivable or participation interests
therein of the Company and its Subsidiaries and activities incidental thereto;




          (f) shall not permit an Accounts Receivable Subsidiary to incur any Indebtedness other than
the Accounts Receivable Subsidiary Notes, Indebtedness owed to the Company and Non-Recourse
Indebtedness; provided that the aggregate principal amount of all such Indebtedness of an
Accounts Receivable Subsidiary shall not exceed the book value of its total assets as determined in
accordance with GAAP;




          (g) shall cause any Accounts Receivable Subsidiary to remit to the Company or a Restricted
Subsidiary of the Company on a monthly basis as a distribution all available cash and Cash
Equivalents not held in a collection account pledged to acquirors of accounts receivable or
participation interests therein, to the extent not applied to:




62









 









          (i) pay interest or principal on the Accounts Receivable Subsidiary Notes or any
Indebtedness of such Accounts Receivable Subsidiary owed to the Company;




          (ii) pay or maintain reserves for reasonable operating expenses of such Accounts
Receivable Subsidiary or to satisfy reasonable minimum operating capital requirements; or




          (iii) to finance the purchase of additional accounts receivable of the Company and its
Subsidiaries; and



          (h) shall not, and shall not permit any of its Subsidiaries to, sell accounts receivable to,
or enter into any other transaction with or for the benefit of, an Accounts Receivable Subsidiary:





          (i) if such Accounts Receivable Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:




          (A) commences a voluntary case;




          (B) consents to the entry of an order for relief against it in an involuntary case;




          (C) consents to the appointment of a custodian of it or for all or substantially all of
its property;




          (D) makes a general assignment for the benefit of its creditors; or




          (E) generally is not paying its debts as they become due; or




          (ii) if a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:




          (A) is for relief against such Accounts Receivable Subsidiary in an involuntary case;




          (B) appoints a Custodian of such Accounts Receivable Subsidiary or for all or
substantially all of the property of such Accounts Receivable Subsidiary; or




          (C) orders the liquidation of such Accounts Receivable Subsidiary, and, with respect to
this clause (h)(ii), the order or decree remains unstayed and in effect for 60 consecutive
days.



SECTION 4.19. Dispositions of ETC and Non-Core Assets.




          Notwithstanding the provisions of Section 4.07 and Section 4.10 of this Indenture, in the
event that the Indebtedness to Cash Flow Ratio of the Company would not have exceeded




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6.0 to 1 on a pro forma basis after giving effect to the sale of all of the Equity Interests
in or assets of ETC owned by the Company and its Subsidiaries, then:





     (1) the payment of any dividend or distribution consisting of Equity Interests in or
assets of ETC, or the proceeds of a sale, conveyance or other disposition of such Equity
Interests or assets or the sale, conveyance or other disposition of Equity Interests in or
assets of ETC or the proceeds of a sale, conveyance or other disposition of such Equity
Interests or assets shall not constitute a Restricted Payment;




     (2) the sale, conveyance or other disposition of the Equity Interests in or assets of
ETC or the proceeds of a sale, conveyance or other disposition of such Equity Interests or
assets shall not constitute an Asset Sale; and




     (3) upon delivery of an Officers’ Certificate to the Trustee evidencing satisfaction of
the conditions to such release and a written request to the Trustee requesting such release,
ETC shall be discharged and released from its Guarantee and, so long as the Company
designates ETC as an Unrestricted Subsidiary, ETC shall be discharged and released from all
covenants and restrictions contained in this Indenture,


provided that no such payment, sale, conveyance or other disposition (collectively, a
“Payout”) described in clauses (1) or (2) above shall be permitted if at the time of such Payout:




          (a) after giving pro forma effect to such Payout, the Company would not have been permitted
under Section 4.07 of this Indenture to make a Restricted Payment in an amount equal to the total
(the “ETC Amount Due”) of:





               (i) the amount of all Investments (other than the contribution of:




     (x) title to the headquarters building of ETC in Inverness, Colorado
and the tangible assets therein to the extent used by ETC as of the date of
this Indenture; and




     (y) patents, trademarks and copyrights applied for or granted as of the
date of this Indenture to the extent used by ETC or resulting from the
business of ETC, in each case, to ETC)




made in ETC by the Company or its Restricted Subsidiaries since the date of
this Indenture (which, in the case of Investments in exchange for assets,
shall be valued at the fair market value of each such asset at the time each
such Investment was made); minus




               (ii) the amount of the after-tax value of all cash returns on such Investments paid to
the Company or its Wholly Owned Restricted Subsidiaries (or, in the case of a non-Wholly
Owned Restricted Subsidiary, the pro rata portion thereof attributable to the Company);
minus




               (iii) $100 million; and



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          (b) any contract, agreement or understanding between ETC and the Company or any Restricted
Subsidiary of the Company and any loan or advance to or guarantee with, or for the benefit of, ETC
issued or made by the Company or one of its Restricted Subsidiaries, is on terms that are no less
favorable to the Company or its Restricted Subsidiaries than those that would have been obtained in
a comparable transaction by the Company or such Restricted Subsidiaries with an unrelated Person,
all as evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate
delivered to the Trustee, within ten Business Days of a request by the Trustee certifying that each
such contract, agreement, understanding, loan, advance and guarantee has been approved by a
majority of the members of the Board of Directors.




          If at the time of such Payout, the condition set forth in clause (a) of the proviso of the
preceding sentence cannot be satisfied, ETC may seek to have a Person other than the Company or one
of its Restricted Subsidiaries pay in cash an amount to the Company or its Restricted Subsidiaries
such that after taxes, such amount is greater than or equal to the ETC Amount Due or the portion of
the ETC Amount Due which would not have been permitted to be made as a Restricted Payment by the
Company; provided that such payment shall be treated for purposes of this Section 4.19 as a
cash return on the Investments made in ETC; and provided further that for all purposes
under this Indenture, such payment shall not be included in any calculation under clauses (iii)(A)
through (iii)(E) of the first paragraph of Section 4.07 of this Indenture. To the extent that the
ETC Amount Due or any portion thereof would have been permitted to be made as a Restricted Payment
by the Company and was not paid by another Person as permitted by the preceding sentence, the
Company shall be deemed to have made a Restricted Payment in the amount of such ETC Amount Due or
portion thereof, as the case may be.




          Notwithstanding the provisions of Section 4.07 and Section 4.10 of this Indenture:





     (1) the payment of any dividend or distribution consisting of Equity Interests in or
assets of any Non-Core Asset or the proceeds of a sale, conveyance or other disposition of
such Equity Interests or assets or the sale, conveyance or other disposition of Equity
Interests in or assets of any Non-Core Asset or the proceeds of a sale, conveyance or other
disposition of such Equity Interests or assets shall not constitute a Restricted Payment;




     (2) the sale, conveyance or other disposition of the Equity Interests in or assets of
any Non-Core Asset or the proceeds of a sale, conveyance or other disposition of such Equity
Interests or assets shall not constitute an Asset Sale; and




     (3) upon delivery of an Officers’ Certificate to the Trustee evidencing satisfaction of
the conditions to such release and a written request to the Trustee requesting such a
release, any such Non-Core Asset that is a Guarantor shall be discharged and released from
its Guarantee and, so long as the Company designates such Non-Core Asset as an Unrestricted
Subsidiary, such Non-Core Asset shall be released from all covenants and restrictions
contained in this Indenture;



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provided that no Payout of any Non-Core Asset shall be permitted such as described in
clauses (1) and (2) above if at the time of such Payout:




          (a) after giving pro forma effect to such Payout, the Company would not have been permitted
under Section 4.07 of this Indenture to make a Restricted Payment in an amount equal to the total
(the “Non-Core Asset Amount Due”) of:





          (i) the amount of all Investments made in such Non-Core Asset by the Company or its
Restricted Subsidiaries since the Issue Date (which, in the case of Investments in exchange
for assets, shall be valued at the fair market value of each such asset at the time each
such Investment was made); minus




          (ii) the amount of the after-tax value of all cash returns on such Investments paid to
the Company or its Wholly Owned Restricted Subsidiaries (or, in the case of a non-Wholly
Owned Restricted Subsidiary, the pro rata portion thereof attributable to the Company);
minus




          (iii) $100 million in the aggregate for all such Payouts and $25 million for any single
such Payout; and



          (b) any contract, agreement or understanding between or relating to a Non-Core Asset and the
Company or a Restricted Subsidiary of the Company and any loan or advance to or guarantee with, or
for the benefit of, a Restricted Subsidiary which is a Non-Core Asset issued or made by the Company
or one of its Restricted Subsidiaries, is on terms that are less favorable to the Company or its
Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiaries with an unrelated Person, all as evidenced by a resolution
of the Board of Directors as set forth in an Officers’ Certificate delivered within ten Business
Days of a request by the Trustee, certifying that each such contract, agreement, understanding,
loan, advance and guarantee has been approved by a majority of the Board of Directors.




          If at the time of such Payout, the condition set forth in clause (a) of the proviso of the
preceding sentence cannot be satisfied, such Restricted Subsidiary which is a Non-Core Asset may
seek to have a Person other than the Company or one of its Restricted Subsidiaries pay in cash an
amount to the Company such that, after taxes, such amount is greater than or equal to the Non-Core
Asset Amount Due or the portion of the Non-Core Asset Amount Due which would not have been
permitted to be made as a Restricted Payment by the Company; provided that such payment
shall be treated for purposes of this Section 4.19 as a cash return on the Investments made in a
Non-Core Asset and provided further that for all purposes under this Indenture, such
payment shall not be included in any calculation under clauses (iii)(A) through (iii)(E) of the
first paragraph of Section 4.07 of this Indenture. To the extent that the Non-Core Asset Amount Due
or any portion thereof would have been permitted to be made as a Restricted Payment by the Company
and was not paid by another Person as permitted by the preceding sentence, the Company shall be
deemed to have made a Restricted Payment in the amount of such Non-Core Asset Amount Due or portion
thereof, as the case may be.




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          Promptly after any Payout pursuant to the terms of this Section 4.19, within ten Business Days
of a request by the Trustee, the Company shall deliver an Officers’ Certificate to the Trustee
setting forth the Investments made by the Company or its Restricted Subsidiaries in a Non-Core
Asset, as the case may be, and certifying that the requirements of this Section 4.19 have been
satisfied in connection with the making of such Payout.




          Notwithstanding anything contained in this Section 4.19 to the contrary, any disposition of
ETC or Non-Core Assets permitted pursuant to the EDBS Notes Indentures shall also be permitted
pursuant to this Indenture and shall not be considered a “Restricted Payment” or “Asset Sale” for
purposes of this Indenture.




SECTION 4.20. Payments for Consent.




          The Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of a Note for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Notes unless such consideration is offered
to be paid or agreed to be paid to all holders of the Notes that consent, waive or agree to amend
in the time frame set forth in the solicitation documents relating to such consent, waiver or
agreement.




SECTION 4.21. Termination or Suspension of Certain Covenants Under Certain Conditions.




          If, on any date following the Issue Date, the Notes receive an Investment Grade rating from
both Rating Agencies and no Default or Event of Default has occurred and is continuing (a “Fall
Away Event”) then, beginning on that date and continuing at all times thereafter regardless of any
subsequent changes in the rating of the Notes, the provisions of the Indenture contained in
Sections 3.08, 4.07, 4.08, 4.09, 4.10, 4.11, 4.15, 4.16, 4.18 and 4.19 and clause (d) under Section
5.01 (collectively, the “Fall Away Covenants”) will no longer be applicable to the Notes.




          In addition to the foregoing, during any period in which the Notes have an Investment Grade
rating from one of the Rating Agencies and no Default or Event of Default has occurred and is
continuing, the Fall Away Covenants will not apply to the Notes.




          Upon the termination or suspension of the Fall Away Covenants under either of the two
preceding paragraphs, the amount of Excess Proceeds for purposes of Section 3.08 of this Indenture
shall be set at zero.




ARTICLE 5




SUCCESSORS




SECTION 5.01. Merger, Consolidation, or Sale of Assets of the Company.




          The Company shall not consolidate or merge with or into (whether or not the Company is the
surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose of



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all or substantially all of its properties or assets in one or more related transactions to,
another Person unless:




          (a) the Company is the surviving Person or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of Columbia;




          (b) the Person formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the Company under this Indenture
and the Notes pursuant to a supplemental indenture to this Indenture in form reasonably
satisfactory to the Trustee;




          (c) immediately after such transaction no Default or Event of Default exists; and




          (d) the Company or the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made





          (i) will have Consolidated Net Worth immediately after the transaction (but prior to
any purchase accounting adjustments or accrual of deferred tax liabilities resulting from
the transaction) not less than the Consolidated Net Worth of the Company immediately
preceding the transaction; and




          (ii) would, at the time of such transaction after giving pro forma effect thereto as if
such transaction had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to
Cash Flow Ratio test set forth in the first paragraph of Section 4.09.



          Notwithstanding the foregoing, the Company may merge with another Person if




          (a) the Company is the surviving Person;




          (b) the consideration issued or paid by the Company in such merger consists solely of Equity
Interests (other than Disqualified Stock) of the Company or Equity Interests of DISH; and




          (c) immediately after giving effect to such merger (determined on a pro forma basis), the
Company’s Indebtedness to Cash Flow Ratio either (i) does not exceed 8.0 to 1 or (ii) does not
exceed the Company’s Indebtedness to Cash Flow Ratio immediately prior to such merger.




SECTION 5.02. Successor Corporation Substituted.




          Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company in accordance with



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Section 5.01, the successor corporation formed by such consolidation or into or with which the
Company is merged or to which such sale, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the
Company shall refer instead to the successor corporation and not to the Company), and may exercise
every right and power of the Company under this Indenture with the same effect as if such successor
Person has been named as the Company, herein.




ARTICLE 6




DEFAULTS AND REMEDIES




SECTION 6.01. Events of Default.




          Each of the following constitutes an “Event of Default”:




          (a) default for 30 days in the payment when due of interest on the Notes;




          (b) default in the payment when due of principal of the Notes at maturity, upon repurchase,
redemption or otherwise;




          (c) failure to comply with the provisions of Section 4.10, Section 4.11 or Section 4.15;




          (d) default under Section 4.07 or Section 4.09, which default remains uncured for 30 days, or
the breach of any representation or warranty, or the making of any untrue statement, in any
certificate delivered by the Company pursuant to this Indenture;




          (e) failure by the Company for 60 days after notice from the Trustee or the Holders of at
least 25% in principal amount then outstanding of the Notes to comply with any of its other
agreements in this Indenture or the Notes;




          (f) default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), which default is caused by a failure to pay when due of principal or
interest on such Indebtedness within the grace period provided in such Indebtedness (a “Payment
Default”), and the principal amount of any such Indebtedness, together with the principal amount of
any other such Indebtedness under which there has been a Payment Default, aggregates $250 million
or more;




          (g) default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), which default results in the acceleration of such Indebtedness prior to
its express maturity and the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated,



69









 






aggregates $250 million or more; provided that any acceleration (other than an
acceleration which is the result of a Payment Default under clause (f) above) of Indebtedness under
the outstanding Deferred Payments in aggregate principal amount not to exceed $250 million shall be
deemed not to constitute an acceleration pursuant to this clause (g);




          (h) failure by the Company or any of its Restricted Subsidiaries to pay final judgments (other
than any judgment as to which a reputable insurance company has accepted full liability)
aggregating in excess of $250 million, which judgments are not stayed within 60 days after their
entry;




          (i) DISH, the Company or any Significant Subsidiary of the Company pursuant to or within the
meaning of Bankruptcy Law: (i) commences a voluntary case; (ii) consents to the entry of an order
for relief against it in an involuntary case; (iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property; or (iv) makes a general assignment for the
benefit of its creditors;




          (j) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against DISH, the Company or any Significant Subsidiary of the Company in an
involuntary case; (ii) appoints a custodian of DISH, the Company or any Significant Subsidiary of
the Company or for all or substantially all of the property of DISH, the Company or any Significant
Subsidiary of the Company; or (iii) orders the liquidation of DISH or any Significant Subsidiary of
the Company, and the order or decree remains unstayed and in effect for 60 consecutive days; and




          (k) any Guarantee shall be held in a judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect, or any Guarantor, or any person acting
on behalf of any Guarantor, shall deny or disaffirm its obligations under its Guarantee.




SECTION 6.02. Acceleration.




          If an Event of Default (other than an Event of Default specified in clause (i) or (j) of
Section 6.01 with respect to the Company or any Guarantor) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes by written notice to the Company and the Trustee, may declare all the Notes to be
due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default
specified in clause (i) or (j) of Section 6.01 with respect to the Company or any Guarantor, all
outstanding Notes shall become and be immediately due and payable without further action or notice.
Holders of the Notes may not enforce this Indenture or the Notes except as provided in this
Indenture. The Trustee may withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in such Holders’ interest. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by written notice to the
Trustee may on behalf of all of the Holders rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived.




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          In the case of any Event of Default occurring by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company or its Subsidiaries with the intention of
avoiding payment of the premium that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to Section 3.07, an equivalent premium shall also become and
be immediately due and payable to the extent permitted by law.




          All powers of the Trustee under this Indenture will be subject to applicable provisions of the
Communications Act, including without limitation, the requirements of prior approval for de facto
or de jure transfer of control or assignment of Title III licenses.




SECTION 6.03. Other Remedies.




          If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes and this Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.




SECTION 6.04. Waiver of Past Defaults.




          Holders of not less than a majority in aggregate principal amount of Notes then outstanding,
by notice to the Trustee, may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences under this Indenture, except a continuing Default
or Event of Default in the payment of interest or premium on, or principal of, the Notes. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.




SECTION 6.05. Control by Majority.




          Holders of a majority in principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with the law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal
liability.




SECTION 6.06. Limitation on Suits.




          A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if:




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          (a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default;




          (b) the Holders of at least 25% in principal amount of the then outstanding Notes make a
written request to the Trustee to pursue the remedy;




          (c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;




          (d) the Trustee does not comply with the request within 60 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and




          (e) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the request.




          A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.




SECTION 6.07. Rights of Holders of Notes to Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and interest on the Note, on or after the respective
due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the consent of the Holder of
the Note.




SECTION 6.08. Collection Suit by Trustee.




          If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.




SECTION 6.09. Trustee May File Proofs of Claim.




          The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), the Company’s creditors or the Company’s property and shall
be entitled and empowered to collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder of a Note to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders of the Notes, to pay
to the Trustee any amount due to it for the reasonable



72









 






compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other properties which the Holders of
the Notes may be entitled to receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Note any
plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of
any Holder of a Note thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Note in any such proceeding.




SECTION 6.10. Priorities.




          If the Trustee collects any money pursuant to this Article, it shall pay out the money in the
following order:





     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07,
including payment of all compensation, expense and liabilities incurred, and all advances
made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any and
interest, respectively; and




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



          The Trustee may fix a record date and payment date for any payment to Holders of Notes.




SECTION 6.11. Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than
10% in principal amount of the then outstanding Notes.




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ARTICLE 7




TRUSTEE




SECTION 7.01. Duties of Trustee.




          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of
his or her own affairs.




          (b) Except during the continuance of an Event of Default:





          (i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




          (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



          (c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:





          (i) this paragraph does not limit the effect of paragraph (a) of this Section;




          (ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




          (iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



          (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.




          (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holder of Notes, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to the Trustee against any loss,
liability or expense.




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          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




SECTION 7.02. Rights of Trustee.




          (a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.




          (c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers conferred upon it by this
Indenture.




          (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the Company.




          (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or direction.




          (g) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the
performance of the Company’s covenants in Article 4. In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default except (i) any Event of Default occurring
pursuant to Sections 4.01, 6.01(a) and 6.01(b) or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or obtained actual knowledge.




          (h) Delivery of documents and information to the Trustee under Section 4.03 is for
informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder.




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SECTION 7.03. Individual Rights of Trustee.




          The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee (if any of the Notes are registered pursuant to the Securities Act), or resign.
Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11.




SECTION 7.04. Trustee’s Disclaimer.




          The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.




SECTION 7.05. Notice of Defaults.




          If a Default or Event of Default occurs and is continuing and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default or Event
of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.




SECTION 7.06. Reports by Trustee to Holders of the Notes.




          Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described in TIA
Section 313(a) has occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).




          A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Company and filed with the SEC and each stock exchange on which any Notes are listed. The
Company shall promptly notify the Trustee when any Notes are listed on any stock exchange.




SECTION 7.07. Compensation and Indemnity.




          The Company shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not



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be limited by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel.




          The Company shall indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or administration of its duties
under this Indenture, except any such loss, liability or expense as may be attributable to the
gross negligence, willful misconduct or bad faith of the Trustee. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and
the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay
for any settlement made without its consent, which consent shall not be unreasonably withheld.




          The obligations of the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture.




          To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.




          When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(i) or (j) occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.




SECTION 7.08. Replacement of Trustee.




          A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.




          The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company and obtaining the prior written approval of the FCC, if so required by
the Communications Act, including Section 310(d) and the rules and regulations promulgated
thereunder. The Holders of at least a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee (subject to the prior written approval of the FCC, if required by the
Communications Act, including Section 310(d), and the rules and regulations promulgated thereunder)
if:




          (a) the Trustee fails to comply with Section 7.10;





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          (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;




          (c) the Trustee is no longer in compliance with the foreign ownership provisions of Section
310 of the Communications Act and the rules and regulations promulgated thereunder.




          (d) a Custodian or public officer takes charge of the Trustee or its property; or




          (e) the Trustee becomes incapable of acting.




          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by the Company.




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.




          If the Trustee after written request by any Holder of a Note who has been a Holder of a Note
for at least six months fails to comply with Section 7.10, such Holder of a Note may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid
and subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.




SECTION 7.09. Successor Trustee by Merger, Etc.




          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act shall be the successor Trustee.




SECTION 7.10. Eligibility; Disqualification.




          There shall at all times be a Trustee hereunder which shall be 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, shall be subject to




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supervision or examination by federal or state authority and shall have a combined capital and
surplus of at least $25 million as set forth in its most recent published annual report of
condition.




          This Indenture shall always have a Trustee who satisfies the requirements of TIA Section
310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b).




SECTION 7.11. Preferential Collection of Claims Against Company.




          The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated therein.




ARTICLE 8




LEGAL DEFEASANCE AND COVENANT DEFEASANCE




SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.




          The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, with respect to the Notes, elect to have either Section
8.02 or 8.03 be applied to all outstanding Notes upon compliance with the conditions set forth
below in this Article 8.




SECTION 8.02. Legal Defeasance and Discharge.




          Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02,
the Company shall be deemed to have been discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders
of outstanding Notes to receive payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, or on the redemption date, as the case may be,
(b) the Company’s obligations with respect to such Notes under Sections 2.05, 2.07, 2.08, 2.10,
2.11 and 4.02, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Company’s obligations in connection therewith and (d) this Article 8. Subject to compliance
with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding
the prior exercise of its option under Section 8.03 with respect to the Notes.




SECTION 8.03. Covenant Defeasance.




          Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03,
the Company shall be released from its obligations under the covenants contained



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in Sections 3.08, 4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.18, 4.19
and 5.01 with respect to the outstanding Notes on and after the date the conditions set forth below
are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not
“outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants, but shall continue to be
deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall
not be deemed outstanding for GAAP). For this purpose, such Covenant Defeasance means that, with
respect to the outstanding Notes, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under Section 6.01(c),
but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Company’s exercise under Section 8.01 of the option applicable to
this Section 8.03, Sections 6.01(c) through 6.01(h) and Section 6.01(k) shall not constitute Events
of Default.




SECTION 8.04. Conditions to Legal or Covenant Defeasance.




          The following shall be the conditions to the application of either Section 8.02 or Section
8.03 to the outstanding Notes:




          (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the
provisions of this Article 8 applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Notes, (i) cash in U.S. Dollars, (ii) non-callable Government Securities
which through the scheduled payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any payment, cash in U.S.
Dollars, or (iii) a combination thereof, in such amounts, as will be sufficient in each case, in
the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge the principal of,
premium, if any, and interest on the outstanding Notes on the stated maturity or on the applicable
redemption date, as the case may be; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such non-callable Government Securities to said
payments with respect to the Notes;




          (b) In the case of an election under Section 8.02, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States reasonably satisfactory to the Trustee
confirming that (i) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the Issue Date, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;




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          (c) In the case of an election under Section 8.03, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee to the
effect that the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;




          (d) No Default or Event of Default with respect to the Notes shall have occurred and be
continuing on the date of such deposit or, insofar as Section 6.01(i) or 6.01(j) is concerned, at
any time in the period ending on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such period);




          (e) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, this Indenture or any other material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;




          (f) The Company shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit made by the Company pursuant to its election under Section 8.02 or 8.03 was not made by the
Company with the intent of preferring the Holders over any other creditors of the Company or with
the intent of defeating, hindering, delaying or defrauding any of the other creditors of the
Company or others; and




          (g) The Company shall have delivered to the Trustee an Officers’ Certificate stating that all
conditions precedent provided for or relating to either the Legal Defeasance under Section 8.02 or
the Covenant Defeasance under Section 8.03 (as the case may be) have been complied with as
contemplated by this Section 8.04.




SECTION 8.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.




          Subject to Section 8.06, all money and Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the “Trustee”) pursuant to Section 8.04 in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.




          The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding Notes.




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          Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or Government Securities
held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.




SECTION 8.06. Repayment to Company.




          Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a secured creditor,
look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustees thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in the New York Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.




SECTION 8.07. Reinstatement.




          If the Trustee or Paying Agent is unable to apply any United States Dollars or Government
Notes in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until
such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.02 or 8.03, as the case may be; provided, however, that, if the Company
makes any payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.




ARTICLE 9




AMENDMENT, SUPPLEMENT AND WAIVER




SECTION 9.01. Without Consent of Holders of Notes.




          Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee
may amend or supplement this Indenture, the Notes or the Guarantees without the consent of any
Holder of a Note:




          (a) to cure any ambiguity, defect or inconsistency;




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          (b) to provide for uncertificated Notes or Guarantees in addition to or in place of
certificated Notes or Guarantees;




          (c) to provide for the assumption of the Company’s or any Guarantor’s obligations to the
Holders of the Notes in the case of a merger or consolidation pursuant to Article 5 or Article 10;




          (d) to make any change that would provide any additional rights or benefits to the Holders of
the Notes or that does not adversely affect the legal rights hereunder of any Holder of the Notes;
or




          (e) to comply with requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA.




          Upon the request of the Company accompanied by a resolution of the Board of Directors of the
Company and a resolution of the board of directors of each Guarantor and upon receipt by the
Trustee of the documents described in Section 11.04, the Trustee shall join with the Company and
the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and stipulations which
may be therein contained, but the Trustee shall not be obligated to enter into such amended or
supplemental indenture which affects its own rights, duties or immunities under this Indenture or
otherwise.




SECTION 9.02. With Consent of Holders of Notes.




          The Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes
or the Guarantees or any amended or supplemental indenture with the written consent of the Holders
of at least a majority in aggregate principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or exchange offer for the Notes), and any
existing Default and its consequences or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer or exchange offer
for the Notes). Notwithstanding the foregoing, (a) Sections 3.08, 4.10 and 4.15 of this Indenture
(including, in each case, the related definitions) may not be amended or waived without the written
consent of at least 66-2/3% in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes) and (b) without the
consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by
a non-consenting Holder of Notes):




          (a) reduce the aggregate principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;




          (b) reduce the principal of or change the fixed maturity of any Note or alter the provisions
with respect to the redemption of the Notes;




          (c) reduce the rate of or change the time for payment of interest on any Note;




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          (d) waive a Default or Event of Default in the payment of principal of, or premium, if any, or
interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration);




          (e) make any Note payable in money other than that stated in the Notes;




          (f) make any change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders of Notes to receive payments of principal of or interest on the Notes;




          (g) waive a redemption payment or mandatory redemption with respect to any Note; or




          (h) make any change in the foregoing amendment and waiver provisions.




          Upon the request of the Company accompanied by a resolution of the Board of Directors of the
Company and a resolution of the board of directors of each Guarantor, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 11.04, the Trustee
shall join with the Company and the Guarantors in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.




          It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.




          After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate
principal amount of the Notes then outstanding may waive compliance in a particular instance by the
Company with any provision of this Indenture or the Notes.




SECTION 9.03. Compliance with Trust Indenture Act.




          Every amendment or supplement to this Indenture and the Notes shall be set forth in an amended
or supplemental indenture that complies with the TIA as then in effect.




SECTION 9.04. Revocation and Effect of Consents.




          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if




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notation of the consent is not made on any Note. However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds
every Holder of a Note.




          The Company may fix a record date for determining which Holders of the Notes must consent to
such amendment, supplement or waiver. If the Company fixes a record date, the record date shall be
fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of
the most recent list of Holders of Notes furnished to the Trustee prior to such solicitation
pursuant to Section 2.05 or (ii) such other date as the Company shall designate.




SECTION 9.05. Notation on or Exchange of Notes.




          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.




          Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.




SECTION 9.06. Trustee to Sign Amendments, Etc.




          The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. Neither the Company nor any Guarantor may sign any amended or
supplemental indenture until its board of directors approves it.




ARTICLE 10




GUARANTEES




SECTION 10.01. Guarantee.




          Each of the Guarantors, jointly and severally, hereby unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the
Obligations of the Company hereunder or thereunder, that:




          (a) the principal of and interest on the Notes will be promptly paid in full when due, whether
at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders
or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and




          (b) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in



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accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, each of the Guarantors, jointly and severally, will be obligated
to pay the same immediately.




          Each of the Guarantors, jointly and severally, hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or
this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against
the Company, any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.




          Each of the Guarantors, jointly and severally, hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice (except that the Trustee
shall provide at least ten days’ prior written notice to the Company on behalf of the Guarantors
before taking any action for which the Communications Act and/or the FCC rules require such notice
and which right to notice is not waivable by any Guarantor) and all demands whatsoever and covenant
that this Guarantee will not be discharged except by complete performance of the Obligations
guaranteed hereby. If any Holder or the Trustee is required by any court or otherwise to return to
the Company or any Guarantor, or any Custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or any Guarantor, any amount paid by either to the Trustee
or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.




          Each of the Guarantors, jointly and severally, agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby.
Each of the Guarantors, jointly and severally, further agrees that, as between such Guarantor, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. Notwithstanding the foregoing, in the event that any Guarantee would constitute or
result in a violation of any applicable fraudulent conveyance or similar law of any relevant
jurisdiction, the liability of the applicable Guarantor under its Guarantee shall be reduced to the
maximum amount permissible under such fraudulent conveyance or similar law.




          The Guarantors hereby agree as among themselves that each Guarantor that makes a payment or
distribution under a Guarantee shall be entitled to a pro rata contribution from each other
Guarantor hereunder based on the net assets of such Guarantor and each other Guarantor. The
preceding sentence shall in no way affect the rights of the Holders of Notes to the benefits of
this Indenture, the Notes or the Guarantees.




          Nothing in this Section 10.01 shall apply to claims of, or payments to, the Trustee under or
pursuant to the provisions of Section 7.07. Nothing contained in this Section 10.01 or



86









 






elsewhere in this Indenture, the Notes or the Guarantees shall impair, as between any
Guarantor and the Holder of any Note, the obligation of such Guarantor, which is unconditional and
absolute, to pay to the Holder thereof the principal of, premium, if any, and interest on the Notes
in accordance with their terms and the terms of the Guarantee and this Indenture, nor shall
anything herein or therein prevent the Trustee or the Holder of any Note from exercising all
remedies otherwise permitted by applicable law or hereunder or thereunder upon the occurrence of an
Event of Default.




SECTION 10.02. Execution and Delivery of Guarantees.




          To evidence its Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a
notation of such Guarantee substantially in the form of Exhibit B shall be endorsed by an
officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of such Guarantor by its President or one of its Vice
Presidents and attested to by an Officer. Each of the Guarantors, jointly and severally, hereby
agrees that its Guarantee set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an officer or
Officer whose signature is on this Indenture or on the Guarantee of a Guarantor no longer holds
that office at the time the Trustee authenticates the Note on which the Guarantee of such Guarantor
is endorsed, the Guarantee of such Guarantor shall be valid nevertheless. The delivery of any Note
by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the
Guarantees set forth in this Indenture on behalf of the Guarantors.




SECTION 10.03. Merger, Consolidation or Sale of Assets of Guarantors.




          Subject to Section 10.05, a Guarantor may not, and the Company will not cause or permit any
Guarantor to, consolidate or merge with or into (whether or not such Guarantor is the surviving
entity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions to, any Person other than the
Company or a Guarantor unless:




          (a) such Guarantor is the surviving Person or the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of Columbia;




          (b) the Person formed by or surviving any such consolidation or merger (if other than such
Guarantor) or the Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of such Guarantor under this Indenture
and the Notes pursuant to a supplemental indenture to this Indenture in form reasonably
satisfactory to the Trustee; and




          (c) immediately after such transaction no Default or Event of Default exists.




          Nothing contained in this Indenture shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor that is a Wholly Owned Restricted Subsidiary of the
Company or shall prevent any sale or conveyance of the property of a



87









 






Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor
that is a Wholly Owned Restricted Subsidiary of the Company. Except as set forth in Articles 4 and
5, nothing contained in this Indenture shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor that is a Restricted Subsidiary of the Company or
shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially
as an entirety to the Company or another Guarantor that is a Restricted Subsidiary of the Company.




SECTION 10.04. Successor Corporation Substituted.




          Upon any consolidation, merger, sale or conveyance described in clauses (a) through (c) of
Section 10.03, and upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee, of any Guarantee
previously signed by the Guarantor and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor, such successor corporation shall
succeed to and be substituted for the Guarantor with the same effect as if it had been named herein
as a Guarantor. Such successor corporation thereupon may cause to be signed any or all of the
Guarantees to be issuable hereunder by such Guarantor and delivered to the Trustee. All the
Guarantees so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this
Indenture as though all of such Guarantees had been issued at the date of the execution of such
Guarantee by such Guarantor.




SECTION 10.05. Releases from Guarantees.




          If pursuant to any direct or indirect sale of assets (including, if applicable, all of the
capital stock of any Guarantor) or other disposition by way of merger, consolidation or otherwise
the assets sold include all or substantially all of the assets of any Guarantor or all of the
capital stock of any such Guarantor, then such Guarantor or the Person acquiring the property (in
the event of a sale or other disposition of all or substantially all of the assets of such a
Guarantor) shall be released and relieved of its obligations under its Guarantee or Section 10.03
and Section 10.04, as the case may be; provided that in the event of an Asset Sale, the Net
Proceeds from such sale or other disposition are applied in accordance with the provisions of
Section 4.10. In addition, a Guarantor shall be released and relieved of its obligations under its
Guarantee or Section 10.03 and Section 10.04, as the case may be (1) if such Guarantor is dissolved
or liquidated in accordance with the provisions of this Indenture; (2) if the Company designates
any such Guarantor as an Unrestricted Subsidiary in compliance with the terms of this Indenture; or
(3) without limiting the generality of the foregoing, in the case of any Guarantor which
constitutes a Non-Core Asset, upon the sale or other disposition of any Equity Interest of such
Guarantor which constitutes a Non-Core Asset. Upon delivery by the Company to the Trustee of an
Officers’ Certificate and an Opinion of Counsel to the effect that such sale or other disposition
was made by the Company in accordance with the provisions of this Indenture, including without
limitation Section 4.10 or 4.20 if applicable, the Trustee shall execute any documents reasonably
required in order to evidence the release of any such Guarantor from its obligations under its
Guarantee. Any such Guarantor not released from its obligations under its Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for the other obligations
of such Guarantor under this Indenture as provided in this Article 10.




88









 








ARTICLE 11




MISCELLANEOUS




SECTION 11.01. Trust Indenture Act Controls.




        If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA Section 318(c), the imposed duties shall control.




SECTION 11.02. Notices.




        Any notice or communication by the Company, any Guarantor or the Trustee to the other is duly
given if in writing and delivered in person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the other’s address:



If to the Company or any Guarantor:



EchoStar DBS Corporation

9601 S. Meridian Drive

Englewood, Colorado 80112

Telecopier No.: (303) 723-1699

Attention: General Counsel



With a copy to:



Sullivan & Cromwell LLP

1870 Embarcadero Road

Palo Alto, California 94303

Telecopier No.: (650) 461-5600

Attention: Scott D. Miller, Esq.



If to the Trustee:



U.S. Bank National Association

60 Livingston Avenue

St. Paul, Minnesota 55107

Telecopier No: (651) 495-8097

Attention: Corporate Trust Administration




        The Company, any Guarantor or the Trustee, by notice to the other may designate additional or
different addresses for subsequent notices or communications.




        All notices and communications (other than those sent to Holders of Notes) shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.




89









 








          Any notice or communication to a Holder of a Note shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier guaranteeing next
day delivery to its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder of a Note or any defect
in it shall not affect its sufficiency with respect to other Holders of Notes.




          If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.




          If the Company mails a notice or communication to Holders of Notes, it shall mail a copy to
the Trustee and each Agent at the same time.




SECTION 11.03. Communication by Holders of Notes with Other Holders of Notes.




          Holders of the Notes may communicate pursuant to TIA Section 312(b) with other Holders of
Notes with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).




SECTION 11.04. Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:




          (a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been satisfied; and




          (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating
that, in the opinion of such counsel, all such conditions precedent and covenants have been
satisfied.




SECTION 11.05. Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall
include:




          (a) a statement that the Person making such certificate or opinion has read such covenant or
condition;




          (b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;




90









 








          (c) a statement that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and




          (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.




SECTION 11.06. Rules by Trustee and Agents.




          The Trustee may make reasonable rules for action by or at a meeting of Holders of Notes. The
Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its
functions.




SECTION 11.07. No Personal Liability of Directors, Officers, Employees, Incorporators and
Stockholders.




          No director, officer, employee, incorporator or stockholder of the Company, the Guarantors or
any of their Affiliates, as such, shall have any liability for any obligations of the Company, the
Guarantors or any of their Affiliates under the Notes, the Guarantees or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC that such a waiver is
against public policy.




SECTION 11.08. Governing Law.




          The internal law of the State of New York shall govern and be used to construe this Indenture,
the Notes and the Guarantees.




SECTION 11.09. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret another indenture, loan or debt agreement of DISH,
the Company or any of their respective Subsidiaries. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.




SECTION 11.10. Successors.




          All agreements of the Company and the Guarantors in this Indenture and the Notes and the
Guarantees shall bind the successors of the Company and the Guarantors, respectively. All
agreements of the Trustee in this Indenture shall bind its successor.




SECTION 11.11. Severability.




          In case any provision in this Indenture or in the Notes 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.




91









 








SECTION 11.12. Counterpart Originals.




          The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.




SECTION 11.13. Table of Contents, Headings, Etc.




          The Table of Contents and Headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.




[Signatures on following page]





92









 








          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.




	 	 	 	 	 
	 	ECHOSTAR DBS CORPORATION,

     a Colorado corporation

 	 
	 	By:  	/s/ Charles W. Ergen
 	 
	 	 	Name:  	Charles W. Ergen 	 
	 	 	Title:  	Chairman and Chief Executive Officer 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,
as Trustee

 	 
	 	By:  	/s/ Richard Prokosch
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	DISH NETWORK L.L.C.

ECHOSTAR SATELLITE OPERATING L.L.C.

ECHOSPHERE L.L.C.

DISH NETWORK SERVICE L.L.C.

as Guarantors

 	 
	 	By:  	/s/ Charles W. Ergen
 	 
	 	 	Name:  	Charles W. Ergen 	 
	 	 	Title:  	Chairman and Chief Executive Officer 	 
	 




S -1









 








EXHIBIT A




[Face of Note]




 






7.75% Senior Note due 2015




Cert. No.

CUSIP No. [     ]



EchoStar DBS Corporation promises to pay to                      or its registered assigns the
principal sum of                      Dollars on May 31, 2015




Interest Payment Dates: May 31 and November 30, commencing November 30, 2008



Record Dates: May 15 and November 15 (whether or not a Business Day).




          IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.




	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 	 	ECHOSTAR DBS CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 






(SEAL)




	 	 	 	 	 
	This is one of the Notes referred to in
the within-mentioned Indenture:
	 
	 	 	 	 
	U.S. Bank National Association, as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






Dated:




A-1 









 








(Back of Note)




          Capitalized terms used herein have the meanings assigned to them in the Indenture (as defined
below) unless otherwise indicated.




          (1) Interest. EchoStar DBS Corporation, a Colorado corporation (the “Company”)
promises to pay interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on this Note will accrue at the rate of 7.75% per annum, payable
semi-annually in arrears in cash on May 31 and November 30 of each year, commencing November 30,
2008, or if any such day is not a Business Day on the next succeeding Business Day, (each an
“Interest Payment Date”) to the Holder of record of this Note at the close of business on the
immediately preceding May 15 and November 15, whether or not a Business Day. Interest on this Note
will be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest on
this Note shall accrue from the most recent date to which interest has been paid or, if no interest
has been paid, from the date of issuance. To the extent lawful, the Company shall pay interest on
overdue principal at the rate of the then applicable interest rate on this Note; it shall pay
interest on overdue installments of interest (without regard to any applicable grace periods) at
the same rate to the extent lawful. In addition, Holders of Notes may be entitled to the benefits
of certain provisions of the Registration Rights Agreement.




          (2) Method of Payment. The Company will pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of business on the record
date next preceding the Interest Payment Date, even if such Notes are canceled after such record
date and on or before such Interest Payment Date. The Holder hereof must surrender this Note to a
Paying Agent to collect principal payments. The Company will pay principal and interest in money of
the United States that at the time of payment is legal tender for payment of public and private
debts. The Notes will be payable both as to principal and interest at the office or agency of the
Company maintained for such purpose or, at the option of the Company, payment of interest may be
made by check mailed to the Holders of Notes at their respective addresses set forth in the
register of Holders of Notes. Unless otherwise designated by the Company, the Company’s office or
agency will be the office of the Trustee maintained for such purpose.




          (3) Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-registrar without prior notice
to any Holder of a Note. The Company may act in any such capacity.




          (4) Indenture. The Company issued the Notes under an Indenture, dated as of May 27,
2008 (the “Indenture”), among the Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the
date of the Indenture. The Notes are subject to all such terms, and Holders of Notes are referred
to the Indenture and such act for a statement of such terms. The terms of the Indenture shall
govern any inconsistencies between the Indenture and the Notes. The Notes are unsecured obligations
of the Company.




A-2 









 








          (5) Optional Redemption. Except as provided below, the Notes are not redeemable at
the option of the Company prior to May 31, 2015.




          The Notes will be subject to redemption at the option of the Company, at any time in whole, or
from time to time in part, upon not less than 30 nor more than 60 days’ notice, at a redemption
price equal to 100% of the principal amount of such Notes plus accrued and unpaid interest, if any,
to the applicable redemption date plus the “Make-Whole Premium” as set forth in the Indenture.




          Notwithstanding the foregoing, at any time prior to May 31, 2011, the Company may redeem up to
35% of the aggregate principal amount of the Notes outstanding at a redemption price equal to
107.75% of the principal amount thereof on the redemption date, together with accrued and unpaid
interest to such redemption date, with the net cash proceeds of any capital contributions or one or
more public or private sales (including sales to DISH, regardless of whether DISH obtained such
funds from an offering of Equity Interests or Indebtedness of DISH or otherwise) of Equity
Interests (other than Disqualified Stock) of the Company (other than proceeds from a sale to any
Subsidiary of the Company or any employee benefit plan in which the Company or any of its
Subsidiaries participates); provided that: (a) at least 65% in aggregate of the originally
issued principal amount of the Notes remains outstanding immediately after the occurrence of such
redemption; and (b) the sale of such Equity Interests is made in compliance with the terms of the
Indenture.




          (6) Repurchase at Option of Holder. Upon the occurrence of a Change of Control Event,
the Company will be required to offer to repurchase from each Holder of Notes on the Change of
Control Payment Date all or any part of outstanding Notes at a purchase price equal to 101% of the
aggregate principal amount thereof, together with accrued and unpaid interest thereon to the date
of purchase. Holders of Notes that are subject to an offer to purchase will receive a Change of
Control Offer from the Company prior to any related Change of Control Payment Date and may elect to
have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase”
appearing below.




          When the cumulative amount of Excess Proceeds that have not been applied in accordance with
Section 4.10 (Asset Sales) or Section 3.08 (Offer to Purchase by Application of Excess Proceeds) of
the Indenture, exceeds $100.0 million, the Company will be required to offer to purchase the
maximum principal amount of Notes that may be purchased out of such Excess Proceeds at an offer
price in cash equal to 101% of the principal amount thereof, together with accrued and unpaid
interest thereon to the date of purchase. To the extent the Company or a Restricted Subsidiary is
required under the terms of Indebtedness of the Company or such Restricted Subsidiary which is
ranked equally with the Notes to make an offer to purchase such other Indebtedness with any
proceeds which constitute Excess Proceeds under the Indenture, the Company shall make a pro rata
offer to the holders of all other pari passu Indebtedness (including the Notes) with such proceeds.
To the extent that the principal amount of Notes and other pari passu Indebtedness surrendered by
holders thereof exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes and
other pari passu Indebtedness to be purchased on a pro rata basis. Holders of Notes that are
subject to an offer to purchase will receive an Excess Proceeds Offer from the Company prior to any
related Purchase Payment Date and may elect to



A-3 









 






have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase”
appearing below.




          (7) Notice of Redemption. Notice of redemption shall be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes may be redeemed in part but only in whole multiples of $1,000, unless
all of the Notes held by a Holder of Notes are to be redeemed. On and after the redemption date,
interest ceases to accrue on Notes or portions of them called for redemption unless the Company
fails to redeem such Notes or such portions thereof.




          (8) Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder of a Note, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Note or portion of a Note selected for
redemption. Also, it need not exchange or register the transfer of any Notes for a period of 15
days before a selection of Notes to be redeemed.




          (9) Persons Deemed Owners. Prior to due presentment to the Trustee for registration of
the transfer of this Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name this Note is registered as its absolute owner for the purpose of receiving payment of
principal of, premium, if any, and interest on this Note and for all other purposes whatsoever,
whether or not this Note is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Note shall be treated as its owner
for all purposes.




          (10) Amendments, Supplement and Waivers. Subject to certain exceptions, the Indenture
or Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes), and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes). Notwithstanding the foregoing, (a) Sections 3.08
(Offer to Purchase by Application of Excess Proceeds), 4.10 (Asset Sales) and 4.15 (Offer to
Repurchase Upon Change in Control) of the Indenture (including, in each case, the related
definitions) may not be amended or waived without the written consent of at least 66 2/3% in
principal amount of the Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Notes) and (b) without the consent of each Holder affected,
an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder of Notes)
(i) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or
waiver; (ii) reduce the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes; (iii) reduce the rate of or change the time
for payment of interest on any Note; (iv) waive a Default or Event of Default in the payment of
principal of, or premium, if any, or interest on the Notes (except a rescission of acceleration of
the Notes by the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes and a waiver of the payment default that resulted



A-4 









 






from such acceleration); (v) make any Note payable in money other than that stated in the
Notes; (vi) make any change in the provisions of the Indenture relating to waivers of past Defaults
or the rights of Holders of Notes to receive payments of principal of or interest on the Notes;
(vii) waive a redemption payment or mandatory redemption with respect to any Note; or (viii) make
any change in the foregoing amendment and waiver provisions. Notwithstanding the foregoing, without
the consent of any Holder of a Note, the Indenture or the Notes may be amended or supplemented (i)
to cure any ambiguity, defect or inconsistency; (ii) to provide for uncertificated Notes or
Guarantees in addition to or in place of certificated Notes or Guarantees; (iii) to provide for the
assumption of the Company’s or any Guarantor’s obligations to the Holders of the Notes in case of a
merger or consolidation; (iv) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder; or (v) to comply with the requirements of the SEC in order to effect
or maintain the qualification of the Indenture under the Trust Indenture Act.




          (11) Defaults and Remedies. Each of the following constitutes an Event of Default:





     (a) default for 30 days in the payment when due of interest on the Notes;




     (b) default in payment when due of principal of the Notes at maturity, upon repurchase,
redemption or otherwise;




     (c) failure to comply with the provisions described under Section 4.10 (Asset Sales),
Section 4.11 (Limitation on Transactions with Affiliates), or Section 4.15 (Offer to
Purchase Upon Change in Control) of the Indenture;




     (d) default under the provisions described under Section 4.07 (Limitation on Restricted
Payments) or Section 4.09 (Incurrence of Indebtedness) of the Indenture which default
remains uncured for 30 days, or the breach of any representation or warranty, or the making
of any untrue statement, in any certificate delivered by the Company pursuant to the
Indenture;




     (e) failure by the Company for 60 days after notice from the Trustee or the holders of
at least 25% in principal amount of the then outstanding Notes to comply with any of its
other agreements in the Indenture or the Notes;




     (f) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), which default is caused by a failure to pay
when due of principal or interest on such Indebtedness within the grace period provided in
such Indebtedness (a “Payment Default”), and the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which there has been
a Payment Default, aggregates $250 million or more;




     (g) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for



A-5 









 







money borrowed by the Company and any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries), which default
results in the acceleration of such Indebtedness prior to its express maturity and the
principal amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $250 million or more; provided that any acceleration
(other than an acceleration which is the result of a Payment Default under clause (f) above)
of Indebtedness under the Outstanding Deferred Payments in aggregate principal amount not to
exceed $250 million shall be deemed not to constitute an acceleration pursuant to this
clause (g);




     (h) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
(other than any judgment as to which a reputable insurance company has accepted full
liability) aggregating in excess of $250 million, which judgments are not stayed within 60
days after their entry;




     (i) DISH, the Company or any Significant Subsidiary of the Company pursuant to or
within the meaning of Bankruptcy Law (i) commences a voluntary case; (ii) consents to the
entry of an order for relief against it in an involuntary case; (iii) consents to the
appointment of a Custodian of it or for all or substantially all of its property; or (iv)
makes a general assignment for the benefit of its creditors;




     (j) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that: (i) is for relief against DISH, the Company or any Significant Subsidiary of the
Company in an involuntary case; (ii) appoints a custodian of DISH, the Company or any
Significant Subsidiary of the Company or for all or substantially all of the property of
DISH, the Company or any Significant Subsidiary of the Company; or (iii) orders the
liquidation of DISH or any Significant Subsidiary of the Company, and the order or decree
remains unstayed and in effect for 60 consecutive days; and




     (k) any Guarantee shall be held in a judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect, or any Guarantor, or any
person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its
Guarantee.



          If any Event of Default occurs and is continuing, the Trustee or the holders of at least 25%
in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately (plus, in the case of an Event of Default that is the result of an action by
the Company or any of its Subsidiaries intended to avoid restrictions on or premiums related to
redemptions of the Notes contained in the Indenture or the Notes, an amount of premium that would
have been applicable pursuant to the Notes or as set forth in the Indenture). Notwithstanding the
foregoing, in the case of an Event of Default arising from the events of bankruptcy or insolvency
with respect to the Company or any of its Subsidiaries described in (i) above, all outstanding
Notes shall become and be immediately due and payable without further action or notice. Holders of
the Notes may not enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, holders of a majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust



A-6 









 






or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default
or Event of Default (except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in such holders’ interest.




          The Holders of a majority in aggregate principal amount of the then outstanding Notes, by
notice to the Trustee, may on behalf of the holders of all of the Notes waive any existing Default
or Event of Default and its consequences under the Indenture, except a continuing Default or Event
of Default in the payment of interest or premium on, or principal of, the Notes.




          The Company is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any Default or Event of
Default to deliver to the Trustee a statement specifying such Default or Event of Default.




          All powers of the Trustee under the Indenture will be subject to applicable provisions of the
Communications Act, including without limitation, the requirements of prior approval for de facto
or de jure transfer of control or assignment of Title III licenses.




          (12) Trustee Dealings with Company. The Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and perform services for
the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not Trustee; however, if the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as Trustee, or resign.




          (13) No Personal Liabilities of Directors, Officers, Employees, Incorporators and
Stockholders. No director, officer, employee, incorporator or stockholder of the Company, the
Guarantors or any of their Affiliates, as such, shall have any liability for any obligations of the
Company, the Guarantors or any of their Affiliates under this Note or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
the Notes by accepting a Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes.




          (14) Guarantees. Payment of principal and interest (including interest on overdue
principal and overdue interest, if lawful) is unconditionally guaranteed, jointly and severally, by
each of the Guarantors.




          (15) Authentication. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.




          (16) Abbreviations. Customary abbreviations may be used in the name of a Holder of a
Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (5
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




          (17) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company has caused CUSIP numbers to be printed on the
Notes and has directed the Trustee to use CUSIP numbers in



A-7 









 






notices of redemption as a convenience to Holders of Notes. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers placed thereon.




A-8 









 








          The Company will furnish to any Holder of a Note upon written request and without charge a
copy of the Indenture. Request may be made to:



EchoStar DBS Corporation

9601 S. Meridian Drive

Englewood, Colorado 80112

Attention: General Counsel




A-9 









 








ASSIGNMENT FORM




To assign this Note, fill in the form below:




(I) or (we) assign and transfer this Note to




 






(Insert assignee’s Soc. Sec. or tax I.D. no.)




 






          (Print or type assignee’s name, address and zip code) and irrevocably appoint                     
agent to transfer this Note on the books of the Company. The agent may substitute another to act
for him.




Date:                    




	 	 	 	 	 	 	 
	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 

(Sign exactly as your name
appears on the face of this
Note)
	 	 






Signature Guarantee.




A-10 









 





          OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have all or any part of this Note purchased by the Company pursuant to
Section 3.08 or Section 4.15 of the Indenture check the appropriate box:




	 	 	 	 	 	 	 
	 

	 	[ ] Section 3.08
	 	[ ] Section 4.15
	 	 






          If you want to have only part of the Note purchased by the Company pursuant to Section 3.08 or
Section 4.15 of the Indenture, state the amount you elect to have purchased:





$



Date:                    




	 	 	 	 	 	 	 
	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 

(Sign exactly as your name
appears on the face of this Note)
	 	 






Signature Guarantee.





A-11 









 








[ATTACHMENT FOR GLOBAL NOTES]




SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE




          The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	PRINCIPAL	 	 
	 

	 	 	 	AMOUNT OF
	 	AMOUNT	 	 
	 

	 	AMOUNT OF
	 	INCREASE
	 	OF THIS GLOBAL
	 	SIGNATURE OF
	 

	 	DECREASE IN
	 	PRINCIPAL
	 	NOTE
	 	AUTHORIZED
	 

	 	PRINCIPAL
	 	AMOUNT
	 	FOLLOWING SUCH
	 	OFFICER
	DATE OF

	 	AMOUNT OF
	 	OF THE GLOBAL
	 	DECREASE (OR
	 	OF TRUSTEE OR
	EXCHANGE

	 	THIS GLOBAL NOTE
	 	NOTE
	 	INCREASE)
	 	NOTE CUSTODIAN
	 
	 	 	 	 	 	 	 	 
	 





A-12 









 





EXHIBIT B




FORM OF GUARANTEE




          [Name of Guarantor] and its successors under the Indenture, jointly and severally with any
other Guarantors, hereby irrevocably and unconditionally guarantees (i) the due and punctual
payment of the principal of, premium, if any, and interest on the Notes, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and
interest, if any, on the Notes, to the extent lawful, and the due and punctual performance of all
other obligations of EchoStar DBS Corporation (the “Company”) to the Holders or the Trustee all in
accordance with the terms set forth in Article 10 of the Indenture, (ii) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise and (iii) has agreed to pay any
and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any
Holder in enforcing any rights under this Guarantee. Capitalized terms used herein have the
meanings assigned to them in the Indenture unless otherwise indicated.




          No stockholder, officer, director or incorporator, as such, past, present or future, of [name
of Guarantor] shall have any personal liability under this Guarantee by reason of his or its status
as such stockholder, officer, director or incorporator. This Guarantee shall be binding upon [name
of Guarantor] and its successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by
any Holder or the Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all subject to the terms and
conditions hereof.




          This Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Note upon which this Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized officers.




          THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.




          This Guarantee shall be governed by and construed in accordance with the laws of the State of
New York.




	 	 	 	 	 	 	 
	 

	 	[NAME OF GUARANTOR]
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 







B-1 









 








EXHIBIT C




FORM OF CERTIFICATE OF TRANSFER




EchoStar DBS Corporation

9601 S. Meridian Drive

Englewood, Colorado 80112




U.S. Bank National Association

60 Livingston Avenue

St. Paul, Minnesota 55107




          Re: 7.75% Senior Notes due 2015




          Reference is hereby made to the Indenture, dated as of May 27, 2008 (the “Indenture”), among
EchoStar DBS Corporation, as issuer (the “Company”), the Guarantors named therein and U.S. Bank
National Association, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.




                               (the “Transferor”) owns and proposes to transfer the Note[s] or interest in
such Note[s] specified in Annex A hereto, in the principal
amount of $___ in such Note[s] or
interests (the “Transfer”), to                      (the “Transferee”), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:




[CHECK ALL THAT APPLY]




	 	 	 	 	 
	1.

	 	[ ]
	 	CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE
PURSUANT TO RULE 144A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the
United States Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby
further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the
beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such
Person exercises sole investment discretion, and such Person
and each such account is a “qualified institutional buyer”
within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance
with any applicable “Blue Sky” securities laws of any state
of the United States. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the 144A Global Note
and/or the Definitive Note and in the Indenture and the
Securities Act.
	 
	 	 	 	 
	2.

	 	[ ]
	 	CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE
NOTE PURSUANT TO REGULATION S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act






C-1









 






	 	 	 	 	 
	 

	 	 	 	and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a Person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note and/or the Definitive Note and in the Indenture and the Securities Act.
	 
	 	 	 	 
	3.

	 	[ ]
	 	CHECK AND COMPLETE IF TRANSFEREE WILL TAKE
DELIVERY OF A BENEFICIAL INTEREST IN A
DEFINITIVE NOTE PURSUANT TO ANY PROVISION
OF THE SECURITIES ACT OTHER THAN RULE 144A
OR REGULATION S. The Transfer is being
effected in compliance with the transfer
restrictions applicable to beneficial
interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act
and any applicable blue sky securities laws
of any state of the United States, and
accordingly the Transferor hereby further
certifies that (check one):






	 	 	 	 	 	 	 
	 

	 	(a)
	 	[ ]
	 	such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act; or
	 
	 	 	 	 	 	 
	 

	 	(b)
	 	[ ]
	 	or such Transfer is being effected to the Company or a
subsidiary thereof;
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	or
	 
	 	 	 	 	 	 
	 

	 	(c)
	 	[ ]
	 	such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.






	 	 	 	 	 
	4.

	 	[ ]
	 	CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.






	 	 	 	 	 	 	 
	 

	 	(a)
	 	[ ]
	 	CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer






C-2









 






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.






	 	 	 	 	 	 	 
	 

	 	(b)
	 	[ ]
	 	CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
	 
	 	 	 	 	 	 
	 

	 	(c)
	 	[ ]
	 	CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.






C-3









 






          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.




	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






          Dated:                    





C-4









 








ANNEX A TO CERTIFICATE OF TRANSFER





	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE OF (a) OR (b)]




	 	 	 	 	 	 	 
	 

	 	(a)
	 	[ ]
	 	a beneficial interest in the:
	 
	 

	 	 	 	(i)
	 	[ ]     144A Global Note (CUSIP ___), or
	 
	 

	 	 	 	(ii)
	 	[ ]     Regulation S Global Note (CUSIP ___), or
	 
	 

	 	(b)
	 	[ ]
	 	a Restricted Definitive Note.







	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]




	 	 	 	 	 	 	 
	 

	 	(a)
	 	[ ]
	 	a beneficial interest in the:
	 
	 

	 	 	 	(i)
	 	[ ]     144A Global Note (CUSIP ___), or
	 
	 

	 	 	 	(ii)
	 	[ ]     Regulation S Global Note (CUSIP ___), or
	 
	 

	 	 	 	(iii)
	 	[ ]     Unrestricted Global Note (CUSIP ___), or
	 
	 

	 	(b)
	 	[ ]
	 	a Restricted Definitive Note; or
	 
	 

	 	(c)
	 	[ ]
	 	an Unrestricted Definitive Note, in accordance with the terms of the
Indenture.






C-5









 





EXHIBIT D




FORM OF CERTIFICATE OF EXCHANGE




EchoStar DBS Corporation

9601 S. Meridian Drive

Englewood, Colorado 80112




U.S. Bank National Association

60 Livingston Avenue

St. Paul, Minnesota 55107




Re:
7.75% Senior Notes due 2015



(CUSIP                     )




          Reference is hereby made to the Indenture, dated as of May 27, 2008 (the “Indenture”), among
EchoStar DBS Corporation, as issuer (the “Company”), the Guarantors named therein and U.S. Bank
National Association, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.




                               (the “Owner”) owns and proposes to exchange the Note[s] or interest in such
Note[s] specified herein, in the principal amount of
$___ in such Note[s] or interests (the
“Exchange”). In connection with the Exchange, the Owner hereby certifies that:




          1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE
FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE.




          (a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii)
the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.




          (b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in


D-1









 







compliance with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.




          (c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.




          (d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE.
In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.




          2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES.




          (a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.




          (b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE]
___ 144A Global Note, ___ Regulation S Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s


D-2









 







own account without transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Exchange in accordance with the terms
of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in
the Indenture and the Securities Act.




          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.




	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Dated:_________________





D-3