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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 1)
(Rule 14d-100)
(Rule 14d-100)
Tender Offer Statement under Section 14(d)(1) or Section 13(e)(1)
of the Securities Exchange Act of 1934
of the Securities Exchange Act of 1934
DISH NETWORK CORPORATION
(Name of Subject Company (Issuer))
ECHOSTAR CORPORATION
(Name of Filing Person (Offeror and Affiliate of Issuer))
0% Convertible Notes due 2025 and 3.375% Convertible Notes due 2026
(Title of Class of Securities)
25470MAF6 (2025 Notes) and 25470MAB5 (2026 Notes)
(CUSIP Number of Class of Securities)
Dean A. Manson
Chief Legal Officer and Secretary
EchoStar Corporation
9601 South Meridian Boulevard
Englewood, Colorado 80112
(303) 723-1000
Chief Legal Officer and Secretary
EchoStar Corporation
9601 South Meridian Boulevard
Englewood, Colorado 80112
(303) 723-1000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
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Jonathan Michels
Andrew J. Ericksen Laura Katherine Mann White & Case LLP 1221 Avenue of the Americas New York, New York 10020 (212) 819-8200 |
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Timothy A. Messner
Secretary DISH Network Corporation 9601 South Meridian Boulevard Englewood, Colorado 80112 (303) 723-1000 |
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John Tripodoro
Ariel Goldman Tristan Manley Cahill Gordon & Reindel LLP 32 Old Slip, New York, New York 10005 |
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☐
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
☐ third-party tender offer subject to Rule 14d-1.
☒ issuer tender offer subject to Rule 13e-4.
☐ going-private transaction subject to Rule 13e-3.
☐ amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
☐ Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
☐ Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
Introductory Statement
This Amendment No.1 amends and supplements the Tender Offer Statement on Schedule TO filed by EchoStar Corporation (“EchoStar”) with the Securities and Exchange Commission (the “SEC”) on October 11, 2024 (as so amended, this “Schedule TO”).
This Schedule TO relates to offers pursuant to which EchoStar is offering to exchange (the “exchange offers”) any and all of the 0% Convertible Notes due 2025 (the “DISH Network 2025 Notes”) issued by DISH Network Corporation (“DISH Network”) and any and all of the 3.375% Convertible Notes due 2026 issued by DISH Network (the “DISH Network 2026 Notes,” together with the DISH Network 2025 Notes, the “Existing Notes”), for aggregate principal amount of up to $2,381,000,000 of 6.75% Senior Secured Notes due 2030 (the “EchoStar Exchange Notes”) and $1,950,000,000 of 3.875% Convertible Senior Secured Notes due 2030 (the “EchoStar Convertible Notes” and, together with the EchoStar Exchange Notes, the “EchoStar Notes”) to be issued by EchoStar.
Concurrently with the exchange offers, EchoStar is also soliciting consents (the “consent solicitations”) from each holder of the Existing Notes, upon the terms and conditions set forth in this prospectus, to certain proposed amendments (the “proposed amendments”) to (1) the Indenture, dated as of December 21, 2020, between DISH Network and U.S. Bank National Association, as trustee, as supplemented by the First Supplemental Indenture, dated as of December 29, 2023 (as further amended, modified or supplemented prior to the date hereof, the “DISH Network 2025 Indenture”), related to the DISH Network 2025 Notes, (2) the Indenture, dated as of August 8, 2016, between DISH Network and U.S. Bank National Association, as trustee (as supplemented by the First Supplemental Indenture, dated as of December 29, 2022, the “DISH Network 2026 Indenture” and, together with the DISH Network 2025 Indenture, the “DISH Network Indentures”), related to the DISH Network 2026 Notes and (3) the Existing Notes.
The exchange offers and consent solicitations commenced on October 10, 2024 and shall expire at one minute after 11:59 p.m., Eastern time, on November 7, 2024, unless extended or earlier terminated by EchoStar. The exchange offers and consent solicitations are made on the terms and subject to the conditions contained in the prospectus and consent solicitation statement (the “Prospectus”), which forms a part of the Registration Statement on Form S-4, dated October 10, 2024 (the “Registration Statement”), as the same may be amended or supplemented.
On November 1, 2024, EchoStar filed Amendment No. 1 to the Registration Statement with the SEC. This Amendment No. 1 is being filed to update (i) Item 10 to the Schedule TO and (ii) Item 12 to the Schedule TO.
This Amendment No. 1 shall be read together with the Schedule TO. Except as specifically provided herein, this Amendment No. 1 does not modify any of the information previously reported on the Schedule TO.
This Schedule TO is being filed in satisfaction of the reporting requirements of Rules 13e-4(b)(1) and 13(c)(2) promulgated under the Securities Exchange Act of 1934, as amended.
Item 10. Financial Statements.
Item 10 of the Schedule TO is hereby amended and supplemented by adding the following:
(c) Summary Information. The information set forth under the heading “Summary — Summary Financial Information” of the Prospectus is herein incorporated by reference.
Item 12. Exhibits.
Item 12(a) of the Schedule TO is hereby amended and supplemented by deleting exhibits (a)(6) and (a)(7), replacing exhibit (a)(1) with the Prospectus which forms a part of Amendment No. 1 to the Registration Statement and adding a letter of transmittal as exhibit (a)(15).
1
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
ECHOSTAR CORPORATION
| | Date: November 1, 2024 | | |
By: /s/ Paul W. Orban
Name: Paul W. Orban
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Title:
Executive Vice President and Chief Financial Officer, DISH
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2
EXHIBIT INDEX
| | (a)(1)* | | | Prospectus, dated November 1, 2024 (incorporated herein by reference to Amendment No. 1 to the Registration Statement on Form S-4 filed by EchoStar Corporation on November 1, 2024). | |
| | (a)(15)* | | | Letter of Transmittal. | |
*
Filed herewith.
3
Exhibit (a)(15)
ECHOSTAR CORPORATION
LETTER OF TRANSMITTAL
LETTER OF TRANSMITTAL
Offers to Exchange
Any and All 0% Convertible Notes due 2025
(CUSIP/ISIN No. 25470MAF6/US2547MAF68)
and 3.375% Convertible Notes due 2026
(CUSIP/ISIN No. 25470MAB5/US2547MAB54)
Issued by DISH Network Corporation for
Up to $2,381,000,000 Aggregate Principal Amount of 6.75% Senior Secured
Notes due 2030 and $1,950,000,000 Aggregate Principal Amount of 3.875%
Convertible Senior Secured Notes due 2030 to be Issued by EchoStar
Corporation
Any and All 0% Convertible Notes due 2025
(CUSIP/ISIN No. 25470MAF6/US2547MAF68)
and 3.375% Convertible Notes due 2026
(CUSIP/ISIN No. 25470MAB5/US2547MAB54)
Issued by DISH Network Corporation for
Up to $2,381,000,000 Aggregate Principal Amount of 6.75% Senior Secured
Notes due 2030 and $1,950,000,000 Aggregate Principal Amount of 3.875%
Convertible Senior Secured Notes due 2030 to be Issued by EchoStar
Corporation
The exchange offers (as defined below) will expire at one minute after 11:59 p.m., New York City time, on November 7, 2024, unless extended or earlier terminated (such date and time, as the same may be extended, the “Expiration Date”). Registered holders (each, a “Holder” and collectively, the “Holders”) of the Existing Notes (as defined below) who desire to participate in the exchange offers must validly tender (and not validly withdraw) their Existing Notes on or prior to the Expiration Date in order to be eligible to receive the applicable Exchange Consideration. Tendered Existing Notes may be withdrawn at any time prior to the Expiration Date, but not thereafter. The exchange offers are subject to the satisfaction or waiver of certain conditions, including, among other things, the satisfaction of the Minimum Tender Condition and the New Money Offering Condition, as described in the prospectus.
Completed Letters of Transmittal and any other documents required in connection with tenders of the Existing Notes listed above should be directed to the exchange agent and information agent, at the address set forth below. Questions concerning the tender procedures and requests for additional copies of the prospectus should be directed to the exchange agent and information agent at the address or telephone numbers set forth below.
The exchange agent and information agent for the exchange offers and consent solicitations is:
D.F. King & Co., Inc.
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By Facsimile (Eligible
Institutions Only): (212) 709-3328 |
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By Regular, Registered or Certified Mail,
By Overnight Courier or By Hand: D.F. King & Co., Inc. 48 Wall Street, 22nd Floor New York, New York 10005 Attention: Michael Horthman
Email: DISH@dfking.com
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For Information or Confirmation: (212) 232-3233
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DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA A FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. DELIVERY OF DOCUMENTS TO THE DEPOSITORY TRUST COMPANY DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT AND INFORMATION AGENT.
EchoStar Corporation (the “Company”) is a Nevada corporation. Unless otherwise expressly stated or the context otherwise requires, in this Letter of Transmittal, “we,” “us,” “our” and the “Company” refer to EchoStar Corporation and its subsidiaries.
This Letter of Transmittal relates to the offers to exchange (the “exchange offers”) by the Company of any and all of the 0% Convertible Notes due 2025 (the “DISH Network 2025 Notes”) issued by DISH Network Corporation (“DISH Network”) and any and all of the 3.375% Convertible Notes due 2026 (the “DISH Network 2026 Notes,” and together with the DISH Network 2025 Notes, the “Existing Notes”) issued by DISH Network for the applicable principal amount of 6.75% Senior Secured Notes due 2030 (the “EchoStar Exchange Notes”) and 3.875% Convertible Senior Secured Notes due 2030 (the “EchoStar Convertible Notes” and together with the EchoStar Exchange Notes, the “EchoStar Notes”) to be issued by EchoStar Corporation.
Concurrently with the exchange offers, Echostar is also soliciting consents (the “consent solicitations”) from each holder of the Existing Notes, upon the terms and conditions set forth in the prospectus, to certain proposed amendments (the “proposed amendments”) to (1) the Indenture, dated as of December 21, 2020, between DISH Network and U.S. Bank National Association, as trustee, as supplemented by the First Supplemental Indenture, dated as of December 29, 2023 (as further amended, modified or supplemented prior to the date hereof, the “DISH Network 2025 Indenture”), related to the DISH Network 2025 Notes, (2) the Indenture, dated as of August 8, 2016, between DISH Network and U.S. Bank National Association, as trustee (as amended, modified or supplemented to date, the “DISH Network 2026 Indenture” and, together with the DISH Network 2025 Indenture, the “DISH Network Indentures”), related to the DISH Network 2026 Notes and (3) the Existing Notes.
The exchange offers and consent solicitations are made on the terms and subject to the conditions contained in the prospectus and consent solicitation statement, dated October 10, 2024, as amended on November 1, 2024 (as it may be further supplemented and amended from time to time, and including the annexes hereto, this “prospectus”). Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to them in the prospectus.
IF YOU DESIRE TO ACCEPT THE EXCHANGE OFFERS, YOU MUST VALIDLY TENDER (AND NOT VALIDLY WITHDRAW) YOUR EXISTING NOTES TO THE INFORMATION AGENT AND EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
This Letter of Transmittal is to be completed by a Holder desiring to tender such Holder’s Existing Notes unless such Holder is executing the tender through the Automated Tender Offer Program (“ATOP”) of The Depository Trust Company (“DTC”). This Letter of Transmittal need not be completed by a Holder tendering through ATOP. Holders who wish to tender through DTC’s ATOP procedures should allow sufficient time for completion of the ATOP procedures during the normal business hours of DTC before the Expiration Date.
Any holder wishing to tender Existing Notes after 5:00 p.m., New York City time, on the Expiration Date should contact the exchange agent and information agent in order to complete and sign this Letter of Transmittal (or a facsimile thereof) in accordance with the instructions set forth herein and deliver such manually signed Letter of Transmittal (or such manually signed facsimile thereof).
Tenders of Existing Notes may be withdrawn at any time prior to the Expiration Date. For a withdrawal of a tender of Existing Notes to be effective, the exchange agent and information agent must receive a written or facsimile transmission containing a notice of withdrawal prior to the Expiration Date, by mail, or hand delivery or by a properly transmitted “Request Message” through ATOP. Any such notice of withdrawal must (i) specify the name of the Holder who tendered the Existing Notes to be withdrawn, (ii) contain a description of the Existing Notes to be withdrawn (including the aggregate principal amount represented by such Existing Notes), (iii) contain a statement that such Holder is withdrawing the election to tender such Holder’s Existing Notes and (iv) unless transmitted through ATOP, be signed by the Holder in the same manner as the original signature on such Holder’s Letter of Transmittal, including any required signature guarantee(s), or be accompanied by evidence satisfactory to the Company that the person withdrawing the tender has succeeded to the beneficial ownership of the Existing Notes. Any notice of withdrawal must identify the Existing Notes to be withdrawn, including the name and number of the account at DTC to be credited,
and otherwise comply with the procedures of the DTC. Withdrawal of tenders of Existing Notes may not be rescinded, and any Existing Notes properly withdrawn will thereafter be deemed not validly tendered for purposes of the exchange offers.
For a description of the procedures to follow in order to tender or withdraw the Existing Notes (through ATOP or otherwise), see “The Exchange Offers and Consent Solicitations — Procedures for Tendering and Consenting” in the prospectus and the instructions to this Letter of Transmittal.
In order to complete this Letter of Transmittal properly, a Holder of Existing Notes must:
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complete the box below entitled “Method of Delivery”;
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if appropriate, check and complete the boxes entitled “Special Issuance Instructions” and “Special Delivery Instructions”;
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sign the Letter of Transmittal by completing the box entitled “Please Sign Here”; and
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complete an Internal Revenue Service (“IRS”) Form W-9 (or, if applicable, an appropriate IRS Form W-8).
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE INSTRUCTIONS, AND THE PROSPECTUS CAREFULLY BEFORE COMPLETING THIS LETTER OF TRANSMITTAL.
The instructions included with this Letter of Transmittal must be followed.
The exchange offers are not being made to, and tenders of Existing Notes will not be accepted from or on behalf of, Holders in any jurisdiction in which the making or the acceptance of such exchange offer would not be in compliance with the laws of such jurisdiction. In those jurisdictions where the securities, blue sky or other laws require the exchange offers to be made by a licensed broker or dealer in any such jurisdiction, such exchange offers shall be deemed to be made on behalf of the Company by the Dealer Manager or such affiliate (as the case may be) or one or more registered brokers or dealers licensed under the laws of such jurisdiction.
The Company expressly reserves the right, in its sole discretion but subject to applicable law and the Transaction Support Agreement, to (i) waive any condition of each exchange offer except the condition that the registration statement of which the prospectus forms a part has been declared effective by the Commission, (ii) extend the Expiration Date of the exchange offers, (iii) amend the terms of either exchange offer or (iv) if any of the conditions to exchange offer are not satisfied, terminate such exchange offer and not accept for payment any Existing Notes tendered in such exchange offer.
THE EXCHANGE OFFERS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”), NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF THE EXCHANGE OFFERS OR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS OR IN THIS LETTER OF TRANSMITTAL AND OTHER MATERIALS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE DEALER MANAGER, THE INFORMATION AND EXCHANGE AGENT OR ANY OTHER PERSON.
EXISTING NOTES MUST BE TENDERED BY BOOK-ENTRY TRANSFER TO THE ACCOUNT MAINTAINED BY THE INFORMATION AND EXCHANGE AGENT WITH DTC.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING THE BOX BELOW.
THE COMPANY IS NOT PROVIDING FOR PROCEDURES FOR TENDERS OF EXISTING NOTES TO BE MADE BY GUARANTEED DELIVERY. ACCORDINGLY, HOLDERS MUST ALLOW SUFFICIENT TIME FOR THE NECESSARY TENDER PROCEDURES TO BE COMPLETED DURING THE NORMAL BUSINESS HOURS OF DTC ON OR PRIOR TO THE EXPIRATION DATE. IF A HOLDER HOLDS EXISTING NOTES THROUGH A NOMINEE, SUCH HOLDER SHOULD KEEP IN MIND THAT SUCH ENTITY MAY REQUIRE THE HOLDER TO TAKE ACTION WITH RESPECT TO THE EXCHANGE OFFERS A NUMBER OF DAYS BEFORE THE EXPIRATION DATE IN ORDER FOR SUCH ENTITY TO TENDER EXISTING NOTES ON SUCH HOLDER’S BEHALF ON OR PRIOR TO THE EXPIRATION DATE. THIS LETTER OF TRANSMITTAL AND THE CERTIFICATES REPRESENTING THE EXISTING NOTES TENDERED SHOULD BE SENT ONLY TO BY THE INFORMATION AND EXCHANGE AGENT, NOT TO THE COMPANY, DTC, THE TRUSTEE, OR THE DEALER MANAGERS.
METHOD OF DELIVERY*
Name of Tendering Institution:
Description of Existing Notes Being Tendered:
Principal Amount of Existing Notes Being Tendered:
DTC Participant Number:
Account Number with DTC:
Transaction Code Number:
*
Need not be completed by Holders delivering in accordance with DTC’s ATOP procedure for transfer (see above).
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
By execution hereof, the undersigned acknowledges receipt of this Letter of Transmittal (this “Letter of Transmittal”) and the prospectus and consent solicitation statement, dated October 10, 2024, as amended on November 1, 2024 (as it may be further supplemented and amended from time to time, and including the annexes hereto, the “prospectus” and, together with this Letter of Transmittal, as amended and supplemented from time to time, the “Offer Documents”), constituting offers to exchange (the “exchange offers”) by EchoStar Corporation, a Nevada corporation (the “Company”), any and all of the 0% Convertible Notes due 2025 (the “DISH Network 2025 Notes”) issued by DISH Network Corporation (“DISH Network”) and any and all of the 3.375% Convertible Notes due 2026 (the “DISH Network 2026 Notes,” and together with the DISH Network 2025 Notes, the “Existing Notes”) issued by DISH Network for the applicable principal amount of 6.75% Senior Secured Notes due 2030 (the “EchoStar Exchange Notes”) and 3.875% Convertible Senior Secured Notes due 2030 (the “EchoStar Convertible Notes” and together with the EchoStar Exchange Notes, the “EchoStar Notes”) to be issued by EchoStar Corporation.
Upon the terms and subject to the conditions of the prospectus, the undersigned hereby (a) tenders to the Company the principal amount of Existing Notes indicated in the box above entitled “Method of Delivery” and (b) consents, with respect to such principal amount or amounts, to the proposed amendments, described in the prospectus, to the applicable DISH Network Indenture and the Existing Notes and to the execution of a supplemental indenture (and directs the trustee to execute such supplemental indenture) effecting such proposed amendments.
Subject to, and effective upon, the acceptance for purchase of, and payment for, the principal amount of Existing Notes tendered herewith, the undersigned hereby:
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sells, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to all of the Existing Notes tendered hereby;
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waives any and all other rights with respect to such Existing Notes (including, without limitation, any existing or past defaults and their consequences in respect of such Existing Notes and the indenture under which the Existing Notes were issued);
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consents to the proposed amendments described in the prospectus under “The Proposed Amendments” to each DISH Network Indenture and the Existing Notes;
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releases and discharges the Company from any and all claims the undersigned may have now, or may have in the future arising out of, or related to, such Existing Notes, including, without limitation, any claims that the undersigned is entitled to receive additional principal or interest payments with respect to such Existing Notes, to convert the Existing Notes into the Company’s common shares of beneficial interest or be entitled to any of the benefits under the indenture under which the Existing Notes were issued; and
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irrevocably constitutes and appoints the exchange agent and information agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the exchange agent and information agent also acts as the agent of the Company) with respect to such Existing Notes, with full powers of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to:
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transfer ownership of such Existing Notes on the account books maintained by DTC, together, in any such case, with all accompanying evidences of transfer and authenticity, to the Company;
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present such Existing Notes for transfer on the relevant security register;
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receive all benefits or otherwise exercise all rights of beneficial ownership of such Existing Notes (except that the exchange agent and information agent will have no rights to, or control over, funds from the Company, except as agent for the tendering Holders, for the applicable Exchange Consideration and any Accrued Interest for any tendered Existing Notes that are purchased by the Company); and
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deliver to the Company this Letter of Transmittal;
all in accordance with the terms and subject to the conditions of the exchange offers, as described in the prospectus.
The undersigned acknowledges and agrees that a tender of Existing Notes pursuant to any one of the procedures described in the prospectus under the caption “The Exchange Offers and Consent Solicitations — Procedures for Tendering and Consenting” and in the instructions to this Letter of Transmittal will, upon the Company’s acceptance of such Existing Notes, constitute a binding agreement between the undersigned and the Company upon the terms and subject to the conditions of the prospectus.
Each exchange offer is subject to the conditions set forth in the prospectus under the caption “The Exchange Offers and Consent Solicitations — Conditions to the Exchange Offers and Consent Solicitations.” The undersigned recognizes that as a result of these conditions (which may be waived, in whole or in part, by the Company, subject to applicable law and the Transaction Support Agreement) as more particularly set forth in the prospectus, the Company may not be required to accept for payment any of the Existing Notes tendered by this Letter of Transmittal and, in such event, the Existing Notes not accepted for payment will remain outstanding. In the event of a termination of the exchange offers, the relevant Existing Notes tendered by the undersigned will be returned to the undersigned as promptly as practicable.
The undersigned hereby represents and warrants that:
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the undersigned has received the Offer Documents and agrees to be bound by all terms and conditions of the exchange offers;
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the undersigned has full power and authority to tender, sell, assign and transfer the Existing Notes tendered hereby;
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when such tendered Existing Notes are accepted for purchase and paid for by the Company pursuant to the exchange offers, the Company will acquire good title thereto, free and clear of all liens, charges, claims, encumbrances, interests and restrictions of any kind; and
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the undersigned will, upon request, execute and deliver any additional documents deemed by the exchange agent and information agent or by the Company to be necessary or desirable to complete the sale, assignment and transfer of the Existing Notes tendered hereby.
No authority conferred or agreed to be conferred by this Letter of Transmittal shall be affected by, and all such authority shall survive, the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the undersigned and any subsequent transferees of the Existing Notes.
In consideration for the purchase of the Existing Notes pursuant to the exchange offers, the undersigned hereby waives, releases, forever discharges and agrees not to sue the Company or any of its former, current or future directors, officers, employees, agents, subsidiaries, affiliates, stockholders, predecessors, successors, assigns or other representatives as to any and all claims, demands, causes of action and liabilities of any kind and under any theory whatsoever, whether known or unknown (excluding any liability arising under U.S. federal securities laws in connection with the exchange offers), by reason of any act, omission, transaction or occurrence, that the undersigned ever had, now has or hereafter may have against the Company as a result of or in any manner related to:
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the undersigned’s purchase, ownership or disposition of the Existing Notes pursuant to the exchange offers; and
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any decline in the value thereof up to and including the Payment Date (as defined in the prospectus), and thereafter, to the extent the Holder retains Existing Notes.
Without limiting the generality or effect of the foregoing, upon the purchase of Existing Notes pursuant to the exchange offers, the Company shall obtain all rights relating to the undersigned’s ownership of Existing Notes (including, without limitation, the right to all interest payable on the Existing Notes) and any and all claims relating thereto. All questions as to the form of all documents and the validity (including time of receipt) and acceptance of tenders and withdrawals of Existing Notes will be determined by the Company, in its sole discretion, and such determination shall be final and binding.
Unless otherwise indicated herein under “Special Issuance Instructions,” the undersigned hereby requests that any Existing Notes representing principal amounts not tendered or not accepted for purchase be issued in the name(s) of, and be delivered to, the undersigned by credit to the account of DTC. Unless otherwise indicated herein under “Special Payment Instructions,” the undersigned hereby request(s) that any checks for payment to be made in respect of the Existing Notes tendered hereby be issued to the order of, and delivered to, the undersigned.
In the event that the “Special Issuance Instructions” box is completed, the undersigned hereby request(s) that any Existing Notes representing principal amounts not tendered or not accepted for purchase be issued in the name(s) of, and be delivered to, the person(s) at the address(es) therein indicated. The undersigned recognize(s) that the Company has no obligation pursuant to the “Special Issuance Instructions” box to transfer any Existing Notes from the names of the registered Holder(s) thereof if the Company does not accept for purchase any of the principal amount of such Existing Notes so tendered. The right to have Existing Notes registered and delivered in accordance with “Special Issuance Instructions” is subject to any limitations or requirements of the indenture governing the Existing Notes. In the event that the “Special Payment Instructions” box is completed, the undersigned hereby request(s) that checks for payment to be made in respect of the Existing Notes tendered hereby be issued to the order of, and be delivered to, the person(s) at the address(es) therein indicated, subject to provision for payment of any applicable taxes being made.
PLEASE SIGN HERE
(To Be Completed By All Tendering Holders)
This Letter of Transmittal must be signed by the registered Holder(s) exactly as their name(s) appear(s) on a security position listing as the owner of such Existing Notes on the books of the DTC or its participants. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other legal entity, agent or other person acting in a fiduciary or representative capacity, then such person must set forth his or her full title below under “Capacity” and submit evidence satisfactory to the Company of such person’s authority to act. See Instruction 1.
X
X
Signature(s) of Holder(s) or Authorized Signatory
Dated: , 2024
Name(s):
Capacity (full title):
Address:
(Zip Code)
Area Code and Telephone No.:
MEDALLION SIGNATURE GUARANTEE
(If required — see Instructions 1 and 2 below)
(If required — see Instructions 1 and 2 below)
(Name of Eligible Institution Guaranteeing Signature(s))
(Address (including zip code) and Telephone Number (including area code) of Firm)
(Authorized Signature)
(Printed Name)
(Title)
Dated: , 2024
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 2, 3 and 6)
To be completed ONLY if Existing Notes in a principal amount not tendered or not accepted for purchase are to be issued in the name of someone other than the person(s) whose signature(s) appear within this Letter of Transmittal or sent to an address different from that shown in the box above entitled “Please Sign Here” within this Letter of Transmittal.
Name(s):
Address:
Telephone Number:
(Tax Identification or Social Security Number) Capacity (full title)
DTC Account Number:
☐
Check here to direct a credit of Existing Notes not tendered or not accepted for purchase delivered by book-entry transfer to an account at DTC.
DTC Account No.:
Number of Account Party:
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 2, 3 and 6)
(See Instructions 1, 2, 3 and 6)
To be completed ONLY if checks are issued payable to someone other than the person(s) whose signature(s) appear(s) within this Letter of Transmittal or sent to an address different from that shown in the box above entitled “Please Sign Here” within this Letter of Transmittal.
Name:
Address:
(Zip Code)
(Tax Identification or Social Security Number) Capacity (full title)
INSTRUCTIONS TO LETTER OF TRANSMITTAL
(Forming part of the terms and conditions of the exchange offers)
Forming Part of the Terms and Conditions of the Exchange Offers
1. Signatures on Letter of Transmittal. This Letter of Transmittal must be signed by the registered Holder(s) exactly as their name(s) appear(s) on a security position listing as the owner of such Existing Notes on the books of the DTC or its participants.
If any of the Existing Notes tendered hereby are registered in the name of two or more Holders, all such Holders must sign this Letter of Transmittal. If any of the Existing Notes tendered hereby are registered in different names, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of such Existing Notes.
If this Letter of Transmittal is signed by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or other legal entity or other person acting in a fiduciary or representative capacity, then such person should so indicate when signing, and proper evidence satisfactory to the Company of such person’s authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered Holders of the Existing Notes tendered hereby, no endorsements of Existing Notes or separate instruments of transfer are required unless payment is to be made, or Existing Notes not tendered or purchased are to be issued, to a person other than the registered Holders, in which case signatures on such Existing Notes or instruments of transfer must be guaranteed by an Eligible Institution (as defined below).
2. Signature Guarantees. All signatures on this Letter of Transmittal must be guaranteed by a firm that is a member of a registered national securities exchange or FINRA, or by a commercial bank or trust company having an office or correspondent in the United States that is a participant in an approved Signature Guarantee Medallion Program (each of the foregoing being an “Eligible Institution”) unless (i) this Letter of Transmittal is signed by the registered Holder(s) (which term, for purposes of this Letter of Transmittal, shall include any participant in the DTC system whose name appears on a security position listing as the owner of Existing Notes) tendered hereby or (ii) such Existing Notes are tendered for the account of an Eligible Institution.
3. Transfer Taxes. Except as set forth in this Instruction 3, the Company will pay or cause to be paid any transfer taxes with respect to the transfer and sale of the Existing Notes to it, or to its order, pursuant to the exchange offers. If payment is to be made to, or if Existing Notes not tendered or purchased are to be registered in the name of, any person(s) other than the Holder(s), or if the tendered Existing Notes are registered in the name of any person(s) other than the person(s) signing this Letter of Transmittal, the amount of any transfer taxes (whether imposed on the Holder(s) or such other person(s)) payable on account of the transfer to such other person(s) will be deducted from the payment (and any remaining amount of transfer taxes will be billed directly to the Holder(s) or such other person(s)) unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted.
4. Questions or Requests for Assistance or Additional Copies. Any questions or requests for assistance or additional copies of the prospectus or this Letter of Transmittal may be directed to the exchange agent and information agent at its address or telephone numbers set forth on the back cover of the prospectus. Holders may also contact the Dealer Manager at the telephone number set forth on the back cover of the prospectus or their brokers, dealers, commercial banks, trust companies or other nominees for assistance concerning the exchange offers.
5. Partial Tenders. Tenders of the Existing Notes will be accepted only in integral multiples of $1,000 principal amount. The tendering Holder should fill in the principal amount tendered in the box above entitled “Method of Delivery.” The entire principal amount of Existing Notes delivered to the exchange agent and information agent will be deemed to have been tendered unless otherwise indicated.
6. Special Issuance and Special Payment Instructions. Tendering Holders should indicate in the applicable box or boxes the name and address to which Existing Notes for principal amounts not tendered
or not accepted for purchase or checks for payment of the applicable Exchange Consideration and Accrued Interest are to be sent or issued, if different from the name and address of the Holder signing this Letter of Transmittal. In the case of payment to a different name, the taxpayer identification or social security number of the person named must also be indicated and an appropriate IRS form for such recipient must be completed. If no instructions are given, Existing Notes not tendered or not accepted for purchase will be returned, and checks for payment of the applicable Exchange Consideration and Accrued Interest will be sent, to the Holder of the Existing Notes tendered. The undersigned recognizes that the Company has no obligation pursuant to either of the special instructions boxes if the Company does not accept for purchase any of the Existing Notes so tendered or if provision for payment of any applicable transfer taxes is not made.
7. Waiver of Conditions. Subject to applicable law and the Transaction Support Agreement, the Company reserves the right to amend or waive any of the conditions of the exchange offers except the condition that the registration statement of which the prospectus forms a part has been declared effective by the Commission.
8. Taxpayer Identification Number: IRS Form W-9 and Form W-8. To prevent backup withholding, each Holder tendering Existing Notes that is a U.S. person (as defined in the instructions on the enclosed IRS Form W-9) must provide such Holder’s correct taxpayer identification number (“TIN”) by completing the enclosed IRS Form W-9, certifying that (1) the TIN provided is correct (or that such Holder is awaiting a TIN), (2)(i) such Holder is exempt from backup withholding, (ii) the Holder has not been notified by the IRS that such Holder is subject to backup withholding as a result of failure to report all interest or dividends or (iii) the IRS has notified the Holder that such Holder is no longer subject to backup withholding, and (3) the Holder is a U.S. person.
If the Holder is a U.S. person tendering Existing Notes that does not have a TIN, such Holder should consult the enclosed IRS Form W-9 for instructions on applying for a TIN, write “Applied For” in the space for the TIN in Part I of the IRS Form W-9, and sign and date the IRS Form W-9. If such Holder tendering Existing Notes does not provide such Holder’s TIN to the exchange agent and information agent within 60 days, backup withholding may begin and continue until such Holder furnishes such Holder’s TIN to the exchange agent and information agent. Note: Writing “Applied For” on the form means that the Holder tendering Existing Notes has already applied for a TIN or that such Holder intends to apply for one in the near future.
If the Existing Notes are registered in more than one name or are not in the name of the actual owner, consult the instructions on the enclosed IRS Form W-9 for information on which TIN to report.
Certain Holders tendering Existing Notes (including, among others, certain non-U.S. persons) are not subject to these backup withholding and reporting requirements. To prevent possible erroneous backup withholding, an exempt Holder tendering Existing Notes that is a U.S. person must enter its correct TIN in Part I of the IRS Form W-9, enter the applicable “Exempt payee” code on such form, and sign and date the form. See the enclosed IRS Form W-9 for additional instructions. In order for a Holder that is not a U.S. person to qualify as exempt from backup withholding, such person must submit a completed IRS Form W-8BEN (or other appropriate IRS Form W-8), signed under penalties of perjury attesting to such exempt status. Such form (and additional IRS forms) may be obtained from the exchange agent and information agent or the IRS at its Internet address at www.irs.gov.
If the exchange agent and information agent is not provided with the correct TIN or an adequate basis for an exemption, the Holder may be subject to backup withholding of a portion of the reportable payments made with respect to the Existing Notes and a $50 penalty imposed by the IRS. Failure to comply truthfully with the backup withholding requirements also may result in the imposition of criminal and/or civil fines and penalties. Backup withholding is not an additional tax. Rather, any amount paid as backup withholding would be creditable against a Holder’s U.S. federal income tax liability and may entitle the Holder to a refund, provided that the requisite information is timely provided to the IRS.
The Company reserves the right in its sole discretion to take whatever steps are necessary to comply with its obligation regarding backup withholding.
For a general discussion of the U.S. federal income tax consequences of the exchange offers, Holders should review the section of the prospectus entitled “Material U.S. Federal Income Tax Considerations.”
9. Irregularities. All questions as to the validity, form, eligibility (including time of receipt) and acceptance for payment of Existing Notes pursuant to the procedures described in the prospectus and the Letter of Transmittal and the form and validity of all documents will be determined by the Company in its sole discretion. The Company reserves the absolute right to reject any or all tenders that are not in proper form or the acceptance of or payment for which may, upon the advice of counsel for the Company, be unlawful. The Company also reserves the absolute right to waive any of the conditions of the exchange offers and any defect or irregularity in the tender of any particular Existing Notes, subject to applicable law. Any determination by the Company as to the validity, form, eligibility and acceptance of Existing Notes for payment, or any interpretation by the Company as to the terms and conditions of the exchange offers, is subject to applicable law and, if challenged by Holders or otherwise, to the judgment of a court of competent jurisdiction. The Company is not obligated and does not intend to accept any alternative, conditional or contingent tenders. Unless waived, any irregularities in connection with tenders must be cured within such time as the Company shall determine. None of the Company or any of its affiliates or assigns, the exchange agent and information agent, the Dealer Manager or any other person will be under any duty to give notification of any defects or irregularities in such tenders or will incur any liability to a Holder for failure to give such notification. Tenders of Existing Notes will not be deemed to have been made until such irregularities have been cured or waived. Any Existing Notes received by the exchange agent and information agent that are not properly tendered and as to which the irregularities have not been cured or waived will be returned by the exchange agent and information agent to the tendering Holders, unless otherwise provided in the Letter of Transmittal, as promptly as practical following the Expiration Date.
IMPORTANT TAX INFORMATION1
General
Under U.S. federal income tax law, a Holder that is a U.S. person (as defined in the instructions on the enclosed IRS Form W-9) whose tendered Existing Notes are accepted for payment is required to provide the exchange agent and information agent with such Holder’s current TIN and make certain certifications on the attached IRS Form W-9, or, alternatively, to establish another basis for an exemption from backup withholding. If such Holder is an individual, the TIN is his or her social security number. If the exchange agent and information agent is not provided with the correct TIN or if the required certifications are not made, the Holder or other payee may be subject to a $50 penalty imposed by the IRS. In addition, certain payments made to such Holder or other payee with respect to the Existing Notes purchased pursuant to the exchange offers will be subject to backup withholding. See the enclosed IRS Form W-9 for additional information.
Certain Holders (including, among others, certain corporations and non-U.S. persons) are generally not subject to these backup withholding and information reporting requirements. In order for a non-U.S. Holder to qualify as an exempt recipient, such non-U.S. Holder must submit to the exchange agent and information agent the appropriate IRS Form W-8 (W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, or W-8IMY), signed under penalties of perjury, attesting to his, her or its exempt status. An IRS Form W-8 may be obtained from the exchange agent and information agent or via the IRS website at www.irs.gov.
If backup withholding applies, the exchange agent and information agent is required to withhold 24% of any payment made to the Holder or other payee. Backup withholding is not an additional tax. Rather, any amount paid as backup withholding would be creditable against a Holder’s U.S. federal income tax liability and may entitle the Holder to a refund, provided that the requisite information is timely provided to the IRS.
Purpose of Form W-9
To prevent backup withholding on any payment made to a Holder or other payee with respect to the Existing Notes purchased pursuant to the exchange offers, if the Holder does not otherwise establish an exemption from backup withholding, the Holder is required to notify the exchange agent and information agent of the Holder’s current TIN (or the TIN of any other payee) by completing the attached IRS Form W-9
1
Note to W&C Tax: The Prospectus for the exchange offer did not include a Circular 230 legend.
and certifying that (i) the TIN provided on the attached IRS Form W-9 is correct (or that such Holder is awaiting a TIN), (ii) the Holder is not subject to backup withholding because (a) the Holder is exempt from backup withholding, (b) the Holder has not been notified by the IRS that the Holder is subject to backup withholding as a result of failure to report all interest or dividends or (c) the IRS has notified the Holder that the Holder is no longer subject to backup withholding, and (iii) the Holder is a U.S. person (including a U.S. resident alien) for U.S. federal income tax purposes. Non-U.S. Holders should complete, sign and submit an appropriate IRS Form W-8 as described above to prevent backup withholding.
What Number to Give the Exchange Agent
The Holder is required to give the exchange agent and information agent the TIN of the registered owner of the Existing Notes tendered hereby. If the Existing Notes are registered in more than one name or are not registered in the name of the actual owner, consult the enclosed IRS Form W-9 for additional guidance on which TIN to report.
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The exchange agent and information agent for the exchange offers and consent solicitations is:
D.F. King & Co., Inc.
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By Facsimile (Eligible
Institutions Only): (212) 709-3328 |
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By Regular, Registered or Certified Mail,
By Overnight Courier or By Hand: D.F. King & Co., Inc. 48 Wall Street, 22nd Floor New York, New York 10005 Attention: Michael Horthman |
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For Information or Confirmation: (212) 232-3233
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Email: DISH@dfking.com
The Dealer Manager for the exchange offers and consent solicitations is:
Houlihan Lokey
Houlihan Lokey
245 Park Avenue
New York, NY 10167
Attn: Liability Management Group
Tel: +1 (888) 613-7288
Email: dish@hl.com
Houlihan Lokey
245 Park Avenue
New York, NY 10167
Attn: Liability Management Group
Tel: +1 (888) 613-7288
Email: dish@hl.com
Any questions regarding the terms of the exchange offers may be directed to the Dealer Manager. Questions concerning tender procedures and requests for additional copies of the prospectus should be directed to the information agent: Beneficial owners of notes may also contact their brokers, dealers, commercial banks or trust companies for assistance concerning the exchange offers.