Exhibit 10.01


 


Portions of this Exhibit have been redacted pursuant to a request
for confidential treatment under Rule 24b-2 of the General Rules and
Regulations under the Securities Exchange Act. 
Omitted information, marked “[***]” in the Exhibit, has been filed with
the Securities and Exchange Commission together with such request for
confidential treatment.


 


THIRD AMENDMENT TO THE


SATELLITE CAPACITY LEASE


 


This
Third Amendment (“Third Amendment”), made and entered into on this 28th
day of July, 2009 and effective as of October 11, 2009 (the “Third
Amendment Effective Date”), hereby amends the Satellite Capacity Lease by
and between COLORADO SATELLITE BROADCASTING, INC. a Colorado Corporation (“Network”)
and TRANSPONDER ENCRYPTION SERVICES CORPORATION (“TESC”) dated as of the
24th day of October, 2006, as amended
(collectively, the “Lease”). 
Except as otherwise indicated herein, capitalized terms used in this
Third Amendment shall have the same meaning as set forth in the Lease.


 


In
consideration of the mutual covenants set forth herein, and for other valuable
consideration, the sufficiency of which is hereby acknowledged, Network and
TESC agree as follows:


 


1.                                       Amendments
to the Lease.  As of the Third Amendment Effective Date and
for the remainder of the Term, the Lease shall be amended as follows:


 


(a)                                  A new second sentence shall
be added to Section 1.2.2 (Grant of Rights - By Network)
as follows:


 


“In
the event that, at any time during the Term, the Programming Services or any of
them are made available, in whole or in part, in a high definition format,
(each, an “HD Feed”) then TESC shall have the right, upon [***] prior
written Notice to Network, to (i) distribute any or all of the high
definition format content contained within any such HD Feed, and/or (ii) cause
Network to replace the standard definition feed(s) of such Programming
Service(s) with the corresponding HD Feed(s).  In addition, in the event that, at any time
during the Term, Network makes any programming service(s) (other than the
Programming Services) available, in standard and/or high definition format,
(each, a “Future Programming Service”) then TESC shall have the right,
upon [***] prior written Notice to Network, to (iii) distribute any or all
of the content contained within any such Future Programming Service in
accordance with the provisions of this Lease including, without limitation, Section 3.1
below, and/or (iv) cause Network to replace any existing Programming
Service with any such Future Programming Service.  In the event of any such replacement, such
Future Programming Service(s) shall thereupon be deemed a Programming
Service.”


 


(b)                                 Section 2 (Term) is
hereby amended by deleting the first sentence of such Section and
replacing the same with the following new sentence:


 


“This
Lease shall commence on the Effective Date and, unless terminated sooner in
accordance with the provisions hereof, shall expire on October 31, 2013
(the “Term”); provided however,
that, in addition to the termination rights set forth elsewhere in this Lease,
TESC may terminate the Lease with respect to any standard definition Programming
Service that underperforms (measured in terms of Single Purchase 


 

















 


Portions of this Exhibit have been redacted pursuant to a request
for confidential treatment under Rule 24b-2 of the General Rules and
Regulations under the Securities Exchange Act. 
Omitted information, marked “[***]” in the Exhibit, has been filed with
the Securities and Exchange Commission together with such request for
confidential treatment.


 


Revenues)
for [***] Reporting Periods compared to the aggregated average of all single
purchase revenues collected by TESC during the same period(s) in
connection with [***] programming services not provided by Network that are
similarly comprised of [***] (collectively, the “Competing Services”), provided further, that prior to such right tolling, TESC
must first provide Notice to Network in the event that any Programming Service
has underperformed the Competing Services during [***] period.”


 


(c)                                  Section 3.1.2 (Rent) is
hereby amended by deleting the references to “[***]” in subsections (a) and
(b) and replacing the same with “[***]”.


 


(d)                                 Section 5.6.2(b) is
hereby amended by adding the following to the end of such Section:


 


“Notwithstanding
the foregoing or any other provisions of this Lease to the contrary, if, at any
time after May 31, 2009, TESC elects to offer a Bundled Subscription
Service comprised of Programming Services and other non-Network-provided
programming services, then the percentage of Bundled Subscription Service
Revenues attributable to the Programming Services included in such Bundled
Subscription Service shall be as follows:


 


If
the Programming Services represent [***] of the programming services within
such a Bundled Subscription Service, then the percentage of Bundled
Subscription Service Revenues attributable to the Programming Services shall be
[***];


 


If
the Programming Services represent [***] of the programming services within
such a Bundled Subscription Service, then the percentage of Bundled
Subscription Service Revenues attributable to the Programming Services shall be
[***];


 


If
the Programming Services represent [***] of the programming services within
such a Bundled Subscription Service, then the percentage of Bundled
Subscription Service Revenues attributable to the Programming Services shall be
[***]; and


 


If
the Programming Services represent [***] of the programming services within
such a Bundled Subscription Service, then the percentage of Bundled
Subscription Service Revenues attributable to the Programming Services shall be
[***].”


 


(e)                                  Section 5.6.3(b) is
hereby amended by adding the following to the end of such Section:


 


“Notwithstanding
the foregoing or any other provisions of this Lease to the contrary, if, at any
time after May 31, 2009, TESC elects to offer a Bundled Single Purchase
Service comprised of Programming Services and other non-Network-provided
programming services, then the percentage of Bundled Single Purchase Revenues
attributable to the Programming Services included in such Bundled Single
Purchase Service shall be as follows:


 


If
the Programming Services represent [***] of the programming services within
such a Bundled Subscription Service, then the percentage of Bundled Single
Purchase Revenues attributable to the Programming Services shall be [***];


 


2

















 


Portions of this Exhibit have been redacted pursuant to a request
for confidential treatment under Rule 24b-2 of the General Rules and
Regulations under the Securities Exchange Act. 
Omitted information, marked “[***]” in the Exhibit, has been filed with
the Securities and Exchange Commission together with such request for
confidential treatment.


 


If
the Programming Services represent [***] of the programming services within
such a Bundled Subscription Service, then the percentage of Bundled Single
Purchase Revenues attributable to the Programming Services shall be [***];


 


If
the Programming Services represent [***] of the programming services within
such a Bundled Subscription Service, then the percentage of Bundled Single
Purchase Revenues attributable to the Programming Services shall be [***]; and


 


If
the Programming Services represent [***] of the programming services within
such a Bundled Subscription Service, then the percentage of Bundled Single
Purchase Revenues attributable to the Programming Services shall be [***].”


 


(f)                                    Section 13.18.6 (Clean
Slate) is hereby deleted.


 


(g)                                 Exhibit A (Programming
Schedule) is hereby amended by deleting the second numbered paragraph and
replacing such paragraph with “2. The ‘[***]’ Channel which has a [***] rating
or any other comparable channel that has a [***] rating” and by deleting the
third numbered paragraph and replacing such paragraph with “3. The ‘[***]’
Channel which has a [***] rating or any other comparable channel that has a
[***] rating”.  Network agrees that TESC
may, in its sole discretion, cause Network to initiate the channel and/or edit
standard modifications described by this paragraph prior to the Third Amendment
Effective Date, upon written Notice to Network.


 


(h)                                 Exhibit C (Clean Slate
Claims) is hereby deleted.


 


2.                                       Clean
Slate.          TESC
and Network agree that this Third Amendment is intended as a full and final
accord, release and satisfaction of any and all claims that either party may
have against the other, including any employee(s) or officer(s) thereof,
under the Lease or otherwise, as of May 21, 2009 (the “Clean Slate
Effective Date”), whether now known or hereinafter discovered.  Notwithstanding the foregoing, (i) any
claims for indemnification under the Lease (including, without limitation, the
Old Leases) are expressly excluded from the foregoing release and, thus, remain
an obligation enforceable against the party so charged in accordance with the
provisions of Section 8 of the Lease; and (ii) nothing in this Clean
Slate provision is intended to or shall operate as a waiver of any claim(s) that
Network may have against employee(s) or officer(s) of TESC in such
persons’ individual capacity (as opposed to such person’ capacity as an
employee or officer of TESC or any of its Affiliates) that accrued after January 31,
2009 and prior to the Clean Slate Effective Date.


 


3.                                       Integrated
Agreement.       Except
to the extent that such terms and conditions are amended by or are otherwise in
conflict with the provisions of this Third Amendment, all of the terms and
conditions set forth in the Lease shall remain in full force and effect.  In the event of any conflict between the provisions
of the Lease and the provisions of this Third Amendment, the provisions of the
latter shall prevail.  Subject to the
foregoing, this Third Amendment and the Lease (including all other amendments,
addenda, schedules and exhibits thereto) shall be deemed one and the same
document, and references in the Lease to the “Lease” shall be deemed to refer
to the Lease as amended by this Third Amendment.


 


3

















 


Portions of this Exhibit have been redacted pursuant to a request
for confidential treatment under Rule 24b-2 of the General Rules and
Regulations under the Securities Exchange Act. 
Omitted information, marked “[***]” in the Exhibit, has been filed with
the Securities and Exchange Commission together with such request for
confidential treatment.


 


THE
PARTIES, INTENDING TO BE LEGALLY BOUND, HAVE DULY EXECUTED THIS THIRD AMENDMENT
AS OF THE DATE FIRST SET FORTH ABOVE:


 


	
  TRANSPONDER ENCRYPTION

  	
   

  	
  COLORADO SATELLITE

  
	
  SERVICES CORPORATION

  	
   

  	
  BROADCASTING, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ira Bahr

  	
   

  	
  By:

  	
  /s/ Ken Boenish

  
	
  Name: Ira Bahr

  	
   

  	
  Name: Ken Boenish

  
	
  Title: President

  	
   

  	
  Title: President

  
					



 


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