exv10w1






EXHIBIT 10.1







EXCLUSIVITY AMENDMENT TO THE PRICING AGREEMENT




     This Exclusivity Amendment to the Pricing Agreement (the “Exclusivity Amendment”) is entered into
as of February 6, 2009 and effective as of December 12, 2008 (“Exclusivity Amendment Effective
Date”), by and among EchoStar Technologies L.L.C. (formerly known as EchoStar Technologies
Corporation, “EchoStar”), a limited liability company organized under the laws of the State of
Texas, having a place of business at 90 Inverness Circle East, Englewood, Colorado 80112; Bell
ExpressVu Inc., in its capacity as General Partner of Bell ExpressVu Limited Partnership (“Bell
ExpressVu”), a limited partnership organized under the laws of Ontario, having a place of business
at 100 Wynford Drive, Suite 300, Toronto, Ontario M3C 4B4; Bell Distribution Inc. (“BDI”), a
corporation incorporated under the laws of Canada, having a place of business at 5055 Satellite
Drive, Mississauga, Ontario L4W 5K7; and Bell Canada, a corporation incorporated under the laws of
Canada, having its registered office at Cote du Beaver Hall, Montreal, Quebec, H2Z 1S4. For the
purpose of this Agreement, the term “Bell Parties” shall refer to Bell ExpressVu, BDI, and Bell
Canada.



     Unless otherwise defined herein, all capitalized terms used in this Exclusivity Amendment
shall have the meanings given to them in the Pricing Agreement (as defined below).



RECITALS




     WHEREAS, Bell ExpressVu and EchoStar or their respective Affiliates have previously entered
into the following agreements with respect to the supply of certain products and services by
EchoStar to Bell ExpressVu and its Affiliates: (a) the System Agreement; (b) the Supply Agreement;
(c) the MVC II Agreement; (d) the Additional Limited Guarantee; and (e) the Assignment and
Assumption Agreement;



     WHEREAS, pursuant to the Pricing Agreement effective as of January 1, 2008 among EchoStar,
Bell ExpressVu, BDI and Bell Canada (the “Pricing Agreement”), the parties agreed, among other
things, to amend and modify the System Agreement, the Supply Agreement, and the Assignment and
Assumption Agreement and to terminate (except solely with respect to the Outstanding Obligations)
the MVC II Agreement and the Additional Limited Guarantee (in all cases as previously amended to
the date hereof and collectively, the “Predecessor Agreements”); and



     WHEREAS, subject to the terms and conditions of the Pricing Agreement and the Predecessor
Agreements (as amended by this Exclusivity Amendment), EchoStar is prepared to provide discounted
rates on certain EchoStar Products and Related Equipment in exchange for, among other things, the
agreement by the Bell Parties to purchase various products exclusively from EchoStar;



     NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties mutually
agree that the Pricing Agreement and the Predecessor Agreements are hereby amended as follows:



1. Exclusivity.



1.1 Except as expressly set forth to the contrary in Section 1.3 of this Exclusivity






 




			
	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion
of the text. Copies of the exhibit containing the redacted portions have been filed separately
with the Securities and Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.




 









 










Amendment, the
Bell Parties hereby covenant and agree that at all times commencing with the Exclusivity Amendment
Effective Date and continuing through and including *** (collectively, the “Exclusivity Period”),
EchoStar shall be the Sole and Exclusive Provider (as defined below) of receiver/decoder units
(commonly referred to as set-top boxes) (“STBs”) for any DTH Service (as defined in the System Agreement) but excluding *** offered, provided,
distributed or otherwise made available by the Bell Parties, any of their Affiliates or any of
their respective successors or permitted assigns, ***



1.2 The Bell Parties represent and warrant to EchoStar that, as of the Exclusivity Amendment
Effective Date, neither the Bell Parties nor any of their Affiliates have entered into any
agreement, extension of an agreement, understanding or other arrangement that limits the full
performance of the Bell Parties’ obligations under this Section 1. The Bell Parties covenant and
agree that neither the Bell Parties nor any of their Affiliates and their respective successors and
permitted assigns will enter into any such agreement, extension of an agreement, understanding or
other arrangement at any time during the Exclusivity Period or Exclusive Purchase Period, as
applicable.




***




2. Supply of EchoStar Products



2.1 Clause (a) of Section 4.1 of the Pricing Agreement is hereby deleted in its entirety and
replaced with the following:





(a) receiver/decoder units described in the attached Schedule 1; or the attached
Schedule 1A (subject to the provisions of Section 4 of the Exclusivity Amendment to
the Pricing Agreement effective as of December 12, 2008 among EchoStar Bell ExpressVu, BDI
and Bell Canada (the “Exclusivity Amendment”)) (collectively, “Boxes”);


2.2 The term “DTH” shall be added between the words “EchoStar” and “Products” *** as such words
appear in the first *** lines, respectively, of clause (d) of Section 4.1 of the Pricing Agreement.



2.3 The last sentence of Section 4.1 of the Pricing Agreement is hereby deleted in its entirety and
replaced with the following:




***

3. Pricing




***

4. New Product Launches; ***.




***



4.2 The parties intend, on a going forward basis, to transition all newly manufactured Boxes
to be shipped to Bell ExpressVu such that they would no longer include the *** (the “Modified
Boxes”). Accordingly, the parties shall, on a model by model basis, coordinate the timing by which
such shipments of Modified Boxes would commence. ***



4.3 For greater certainty, the rights of Bell ExpressVu and BDI and their respective successors and
permitted assigns under Section 4.1 of the Pricing Agreement to purchase any of the Boxes mentioned
in Section 4.1 or 4.2 of this Exclusivity Amendment or any other Boxes






 




			
	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.




 









 









mentioned in Schedule
1A from EchoStar shall be subject to the agreement of the parties as to a specific Launch Date
for such Boxes under this Section 4, Section 4 of the Pricing Agreement and all other provisions of
this Exclusivity Amendment, the Pricing Agreement and the Predecessor Agreements otherwise
applicable to the rights of Bell ExpressVu and BDI and their respective successors and permitted
assigns to purchase Boxes from EchoStar.



5. Product Planning Discussions. During the Exclusivity Period, EchoStar shall use
commercially reasonable efforts to meet with Bell ExpressVu on a regular basis in order to keep
Bell ExpressVu reasonably apprised as to the general features and functionalities of the software
and hardware that EchoStar plans to introduce in connection with any New Items *** and to consider
any input Bell ExpressVu may wish to provide in this regard. Notwithstanding the foregoing, Bell
ExpressVu acknowledges and agrees that all such information will be provided and received solely
for Bell ExpressVu’s convenience and that in no event shall anyone other than EchoStar have the
final determination with respect to any such features and functionalities.




***

8. Other Services and Payments.



New Section 4.9 is hereby added to the Pricing Agreement as follows:





4.9 Other Services and Payments.




4.9.1 Ancillary Services and Payments. During the Exclusivity Period, EchoStar
shall offer and provide the following (the “Ancillary Services and Payments”), at *** to
Bell ExpressVu *** following Bell ExpressVu’s written request: (i) the software necessary
for Bell ExpressVu to ***




4.9.2 Credit for Certain Engineering Services. EchoStar shall issue to Bell
ExpressVu a one-time credit in the amount of *** (the “Engineering Services Credit”) to be
applied by Bell ExpressVu during the Exclusivity Period solely with respect to the purchase
and use by Bell ExpressVu of such engineering services as may be mutually agreed to from
time to time by the parties in a signed writing(s) (collectively, the “Engineering
Services”). The pricing and other terms and conditions with respect to all such
Engineering Services shall be as mutually agreed to in a signed written agreement(s)
between the parties, acting reasonably, having regard to their past practice.




***




4.9.4 For certainty, the parties acknowledge and agree that all software provided under
(i) or (ii) of 4.9.1 above (collectively and together with any related documentation
provided by EchoStar, “Ancillary Software”) is licensed and not sold hereunder subject to
the terms and conditions of this Agreement and the Predecessor Agreements; ***



9. Delivery Terms.



9.1 Shipping Costs. All EchoStar Products and Related Equipment that are the subject of
Exclusivity Orders (as defined below) shall be shipped ***






 




			
	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.





 









 





10. Miscellaneous.



***



10.3 Except as expressly modified herein, this Exclusivity Amendment is not intended to, and does
not, alter, amend or modify all or any part of the Pricing Agreement or any of the Predecessor
Agreements including, without limitation, ***. In the event of any conflict or inconsistency
between the provisions of this Exclusivity Amendment and the provisions of the Pricing Agreement
and Predecessor Agreements, the provisions of this Exclusivity Amendment shall be controlling.



10.4 This Exclusivity Amendment may be executed in any number of counterparts each of which will be
deemed to be an original and all of which taken together will be deemed to constitute one and the
same instrument. The parties agree that execution of this Exclusivity Amendment may be evidenced by
delivery of electronic or facsimile images of executed counterparts.




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	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.




 









 




In consideration of the foregoing premises and the mutual covenants and conditions set forth herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned duly authorized representatives of EchoStar, Bell ExpressVu, Bell
Canada and BDI hereby execute and accept this Exclusivity Amendment as of the date first written
above.



	 	 	 	 	 	 	 	 	 
	EchoStar Technologies L.L.C.	 	Bell Distribution Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	By:	 	 	 	 
	Name:
	 	 

	 	Name:
	 	 

	 	 
	Title:
	 	 

	 	Title:
	 	 

	 	 
	 
	 	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	Bell ExpressVu Inc., in its capacity as,	 	Bell Canada ***	 	 
	General Partner of Bell ExpressVu
Limited Partnership	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	By:	 	 	 	 
	Name:
	 	 

	 	Name:
	 	 

	 	 
	Title:
	 	 

	 	Title:
	 	 

	 	 
	 
	 	 

	 	 	 	 

	 	 







 



			
	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.




 








 










EXHIBIT A




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	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.




 









 










EXHIBIT B




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	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.




 









 




EXHIBIT C


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	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.


 







 










EXHIBIT D




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	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.




 









 










EXHIBIT E




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	***	 	Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.