Exhibit 10.1


 





TELESAT CANADA


 


- and -


 


ECHOSTAR CORPORATION


 






 


NIMIQ 5 WHOLE RF CHANNEL
SERVICE AGREEMENT


 






 


Dated as of September 15, 2009


 

















 


Nimiq 5
Whole RF Channel Service Agreement


 


TABLE
OF CONTENTS


 


Article 1.0              Definitions


 


Article 2.0              Service Commitment


 


Article 3.0              Representations and Warranties


 


Article 4.0              Additional Covenants and Termination


 


Article 5.0              ***


 


Article 6.0              Frequency Coordination and Satellite Configuration


 


Article 7.0              Intentionally Omitted


 


Article 8.0              Miscellaneous


 


SCHEDULES:


 


Schedule 1            Terms And Conditions For Full Period


Whole RF Channel
Service On The Nimiq 5 Satellite


 


Schedule 2            Performance Specifications


 


Schedule 3            Availability of *** RF Channels


 


Schedule 4            Advanced Payments


 


Schedule 5            MOA Transition Provisions


 


Schedule 6            Access Requirements


 






***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.


 


i

















 





 


NIMIQ 5 WHOLE RF
CHANNEL SERVICE AGREEMENT


 


This whole RF channel service
agreement is made as of September 15, 2009
(hereinafter referred to as the “Execution Date”), by and between TELESAT CANADA, a Canadian corporation with offices located
at 1601 Telesat Court, Gloucester, Ontario K1B 5P4, Canada (hereinafter
collectively referred to with its permitted assigns and successors in interest
as “Telesat”), and ECHOSTAR CORPORATION, a Nevada corporation with offices
located at 100 Inverness Terrace East, Englewood, CO 80112, in the United
States of America (hereinafter collectively referred to with its permitted assigns and
successors in interest as “Customer”).


 


WHEREAS
Customer has agreed to subscribe for, and Telesat has
agreed to furnish to Customer, certain RF channel services operating on the
17/12 GHz Frequency Band on the Nimiq 5 Satellite at the rates and subject to
the other terms and conditions specified herein.


 


NOW
THEREFORE in consideration of the mutual agreements contained
in this Agreement and other good and valuable consideration (the receipt and
adequacy of which are hereby acknowledged), the Parties agree as follows:


 


ARTICLE 1.0 — DEFINITIONS


 


1.1          As
used in this Agreement and the recitals hereto, the following terms shall have
the following meanings:


 


“4.5 Underutilization Circumstance”
shall have the meaning ascribed to that term in Section 4.5(a).


 


“4.5(c) End of Right Date”
shall have the meaning ascribed to that term in Section 4.5(c).


 


“Advanced Payments”
shall have the meaning ascribed to that term in Section 2.4.


 


“Agreement” means this whole RF
channel service agreement and all schedules, appendices and instruments in
amendment of it; “hereof”, “hereto”, “herein” and “hereunder” and similar
expressions mean and refer to this Agreement and not to any particular Article or
Section; “Article” or “Section” of this Agreement followed by a number means
and refers to the specified Article or Section of this Agreement.


 


“Alternate Capacity Rights”
shall have the meaning ascribed to that
term in Section 5.2.


 


“Authorization” means any authorization,
order, permit, approval, forbearance decision, grant, licence, consent, right,
franchise, privilege or certificate of any Governmental Entity of competent
jurisdiction, whether or not having the force of law.


 


***


 


“BSS” means the 17/12 GHz
frequency band.


 


“Canadian Authorizations” means all Authorizations
of Canadian Governmental Entities and/or Canadian Persons, including without
limitation the DBS Slot License, the Radio Authorization and any and all other
Canadian notifications, licenses, permits, authorizations, approvals and consents
now or hereafter required (a) for Telesat to provide the Customer RF Channel
Services to Customer under the terms and conditions of this Agreement, and (b) to
the


 






***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.


 

















 


extent required under
Canadian law, for Customer to (i) uplink from the United States to, and
downlink into the United States from, the Nimiq 5 Satellite at the Orbital
Position, and (ii) use the Customer RF Channel Services for the Intended
Purpose.  “Canadian Authorizations”
specifically do not include any United States Authorizations, but shall include
any and all Authorizations (including without limitation Authorizations of the
International Telecommunication Union but excluding United States Authorizations)
to the extent required to obtain or maintain a Canadian Authorization.


 


“Customer” shall have the meaning ascribed to
that term in the introductory paragraph of this Agreement.


 


“Customer 4.5 Offer” shall
have the meaning ascribed to that term in Section 4.5(a).


 


“Customer 4.5 Replacement
Satellite” shall have the meaning
ascribed to that term in Section 4.5(a).


 


“Customer 4.5 Replacement
Services” shall have the meaning
ascribed to that term in Section 4.5(a).


 


“Customer 5.4 Offer”
shall have the meaning ascribed to that term in Section 5.4(c).


 


“Customer RF Channel
Service(s)” shall have the meaning ascribed to that term in Section 2.1(a).


 


“DBS Slot License” means the Approval in
Principle granted on 17 December 2003 (as amended on 28 December 2006) by
Industry Canada pursuant to the Radiocommunication Act (Canada) and any Radio
Authorizations associated therewith which authorize Telesat to operate a direct
broadcast satellite at the Orbital Position.


 


“Decommissioned” means the permanent
removal from service of a satellite.


 


“Earliest Termination Date”
shall have the meaning ascribed to that
term in Section 5.3.


 


“Effective Date” shall have the meaning
ascribed to that term in Section 8.9 hereto.


 


“EOL” means the permanent removal
from service of the Nimiq 5 Satellite.


 


***


 


“Execution Date” shall have the meaning
ascribed to that term in the introductory paragraph of this Agreement.


 


“FCC” means the United States
Federal Communications Commission and any successor agency thereto.


 


“FCC Approval” means the FCC
Authorization required for Customer to (a) uplink from the United States to,
and downlink into the United States from, the Nimiq 5 Satellite at the Orbital
Position, and (b) use the Nimiq 5 Satellite for the Intended Purpose.


 


“First Service Date” shall have the meaning
ascribed to that term in Section 2.1(a) hereto


 


***


 


“Governmental Entity” means any (i) multinational,
federal, provincial, state, municipal, local or other government, governmental
or public department, central bank, court, commission, board, bureau, agency or
instrumentality, domestic or foreign; (ii) any subdivision, agent, commission,
board, or authority of any of the foregoing; or (iii) any quasi-governmental or


 






***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.


 


2

















 


private body validly
exercising any regulatory, expropriation or taxing authority under or for the
account of any of the foregoing, in each case in the proper exercise of its
governmental authority.


 


“Initial Term” shall have the meaning
ascribed to that term in Section 2.2.


 


***


 


“Intended Purpose”
means the use of the Nimiq 5 Satellite at the Orbital
Position to provide ***


 


***


 


“LIBOR” means the interest rate
per annum, for three month deposits of United States Dollars made to prime
banks in the London interbank market calculated on the basis of the actual
number of days elapsed divided by 360. 
For greater certainty, the LIBOR rate on a given date will be
established by reference to the British Bankers Association web page (http://bankfacts.org.uk/public/libor),
providing information on historical LIBOR rates or such other web page as may
replace it from time to time.


 


“Manufacturer Termination
for Default Date” shall have the meaning ascribed to that term in Section 4.2(b).


 


***


 


“Nimiq 5 Satellite” means the
communications satellite that includes a BSS-band communications payload,
presently designated within Telesat as “Nimiq 5”, ***.


 


***


 


“Orbital Position” means the 72.7° West
Longitude orbital position.


 


“Parties” means Telesat, Customer
and
any other person who may become party to this Agreement and “Party” means any
one of them.


 


***


 


“Performance Specifications” means the performance
specifications for the BSS payload set forth in Schedule 2.


 


“Person” means an individual,
partnership, limited liability company, corporation, joint stock company,
trust, unincorporated association, joint venture or other entity or
Governmental Entity and pronouns have similarly extended meaning.


 


“Radio Authorization” means the authorization
of the Minister of Industry (Canada) pursuant to the Radiocommunication
Act (Canada) required for Telesat to operate the Nimiq 5 Satellite
at the Orbital Position, which authorization does not contain any conditions,
restrictions or limitations that would prevent Customer from using the Nimiq 5
Satellite for the Intended Purpose.


 


“Reduction Notice” shall have the meaning
ascribed to that term in Section 2.1(b).


 


“Replacement Satellite” shall have the meaning
ascribed to that term in Section 5.4(a).


 


“Replacement Services” shall have the meaning
ascribed to that term in Section 5.4(a).


 


“Satellite Failure”
means
the total destruction, failure or loss of the Nimiq 5 Satellite during the Term
hereof, ***


 


“Satellite Manufacturer” means
Space Systems/Loral, Inc.


 






***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.


 


3

















 


“Satellite Purchase Agreement” means
the satellite purchase agreement entered into by and between Telesat and the
Satellite Manufacturer providing for the procurement by Telesat of the Nimiq 5
Satellite, as such agreement may be amended, modified, supplemented, restated
or replaced from time to time.


 


“Satellite Service
Commencement Date”  means the date on which
Telesat has conducted an acceptance inspection of the Nimiq 5 Satellite ***


 


“Service Commencement Date”
shall
have the meaning ascribed to that term in Section 2.1(a).


 


“Telesat” shall have the meaning
ascribed to that term in the introductory paragraph of this Agreement.


 


“Term” shall have the meaning
ascribed to that term in Section 2.2(a).


 


“Terms and Conditions” means the terms and
conditions for Full Period Whole RF Channel Service on the Nimiq 5 Satellite
set forth in Schedule 1.


 


“United States
Authorizations” means all Authorizations, including without limitation FCC Approval, now
or hereafter required from United States Governmental Entities for Customer to (a)
uplink from the United States to, and downlink into the United States from, the
Nimiq 5 Satellite at the Orbital Position, and (b) use the Nimiq 5 Satellite
for the Intended Purpose.


 


1.2          Capitalized terms used
in this Agreement and not otherwise defined in this Agreement have the same
meanings as in the Terms and Conditions.


 


1.3          Gender and Number.  Any reference in this Agreement to
gender shall include all genders, and words importing the singular number only
shall include the plural and vice versa.


 


1.4          Entire Agreement.  From and after the Effective Date, this Agreement,
including Schedules 1, 2, 3, 4, 5 and 6 attached hereto, and the agreements
referred to herein or delivered pursuant hereto (including without limitation
*** being entered contemporaneously herewith) supersedes all prior agreements,
term sheets, letters of intent, understandings, negotiations and discussions,
whether oral or written, of the Parties pertaining to the subject matter
hereof; provided, however, for the avoidance of doubt the confidentiality
provisions, including restrictions on the use of proprietary information (and
associated remedy provisions) contained in any such prior agreements, term
sheets, letters of intent, understandings, negotiations and discussions shall
survive in accordance with their terms. 
There are no representations, warranties, conditions or other
agreements, express or implied, statutory or otherwise, between the Parties in
connection with the subject matter of this Agreement, except as specifically
set forth in this Agreement and the agreements referred to herein or delivered
pursuant hereto.


 


1.5          Amendments.  This Agreement may only be amended,
modified or supplemented by a written agreement signed by each of the Parties.


 


1.6          Incorporation of Schedules.  The schedules attached hereto shall for
all purposes hereof form an integral part of this Agreement and are hereby
incorporated by reference in their entirety.


 


1.7          Currency.  All dollar amounts referred to in
this Agreement, ***


 






***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.


 


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ARTICLE 2.0 — SERVICE
COMMITMENT


 


2.1          Service Commitment on Nimiq
5 Satellite


 


(a)   Customer
hereby
agrees to subscribe for, and Telesat hereby agrees to furnish to Customer, subject to the terms
and conditions of this Agreement including, but not limited to, Section 2.1(b),
thirty-two (32) *** Channel Services operating on the 17/12 GHz  Frequency Band***, on the Nimiq 5 Satellite (hereinafter
referred to individually as a “Customer RF Channel Service” and collectively as
the “Customer RF Channel Services”) commencing as follows:


 


***


 


The date of commencement
for each Customer RF Channel Service (as set forth above) is referred to herein
as the “Service Commencement Date” for such Customer RF Channel Service, with
the first such date hereunder being referred to herein as the “First Service
Date.”


 


(b)   ***


 


2.2          Term, Satellite Service
Commencement Date and Satellite Construction


 


(a)   Unless terminated earlier as
provided herein, the term of this Agreement shall commence upon the Effective
Date and shall expire on the date which is fifteen
(15)
years following the Satellite Service Commencement Date (the “Initial Term”).  Upon expiration of the Initial Term, and
subject to issuance of a written notice from Customer to Telesat at least
ninety (90) days before the expiration of the Initial Term, Customer shall be
entitled to extend this Agreement on a month to month basis until EOL (the
Initial Term, plus any such extended month to month term, the “Term”) on the
same terms and conditions set out in this Agreement.


 


(b)   Telesat shall use commercially
reasonable efforts to give Customer *** prior written notice of the Satellite
Service Commencement Date and each Service Commencement Date and, to the extent
the predicted date changes, promptly apprise Customer of any such change.  If Telesat fails to give Customer written
notice of the Satellite Service Commencement Date and/or any Service
Commencement Date prior to the Satellite Service Commencement Date and/or such
Service Commencement Date, ***.  To the
extent applicable, during the construction of the Nimiq 5 Satellite, Telesat
shall *** provide Customer with quarterly reports summarizing the current status
of the Nimiq 5 Satellite, including the then-scheduled dates for completing
construction and launching the Nimiq 5 Satellite into orbit. Telesat shall
promptly, and in no event later than *** after Telesat’s actual knowledge of
the applicable change or development, advise Customer of any changes and other
developments relating to the construction, operation, launch and performance of
the Nimiq 5 Satellite which *** could be expected to result in the Customer RF
Channel Services not meeting the Performance Specifications or delay the launch
of the Nimiq 5 Satellite. 
Notwithstanding the aforesaid, (i) all confidentiality requirements
imposed by the satellite manufacturer and/or launch provider; and (ii) requirements
imposed by an applicable Governmental Entity, including but not limited to requirements
imposed by the United States Department of State, shall be complied with by
Customer prior to delivery of any of the above information.  ***


 


(c)   To the extent applicable, Telesat
shall provide Customer with *** notice of: (i) the pre-ship review, the launch
readiness review, in-orbit testing, and the in-orbit testing review scheduled
to be held between Telesat and the satellite manufacturer and/or conducted
during construction and in-orbit check-out of the Nimiq 5 Satellite; and (ii) the
launch readiness review and post-flight review scheduled to be held between
Telesat and the launch service provider for the Nimiq 5 Satellite.  ***


***


 






***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.


 


5

















 


(d)   To the extent applicable, Telesat
may during the construction of the Nimiq 5 Satellite request changes or waivers
to the Performance Specifications.  Such
changes and/or waivers shall be submitted in writing to Customer *** prior to
the proposed date of change.  Customer
shall notify Telesat in writing, ***  The
Parties agree to amend the Performance Specifications forming Schedule 2 of
this Agreement to conform with an approved or deemed approved waiver or
change.  ***


 


(e)   To the extent applicable, Customer
may during the construction of the Nimiq 5 Satellite request changes to the
Performance Specifications.  Telesat
agrees to work in good faith with Customer to implement its requested changes
***


 


Prior to implementing a Customer-requested change, Telesat shall provide
in writing to Customer ***


 


(B)  if there is an impact on
the construction schedule for the Nimiq 5 Satellite ***


 


(C)  the Parties will amend
the Performance Specifications forming Schedule 2 of this Agreement to conform
with the change.


 


(f)    Telesat’s program management for the Nimiq 5 Satellite will apply ***


 


2.3          Monthly Rate


 


(a)   Subject
to Section 2.2(b) above, Customer shall pay, and there shall become
due and payable, a monthly rate of *** for each Customer RF Channel Service
furnished during the period commencing on and from the applicable Service
Commencement Date until the date of the expiry of the Term.  For the purposes of Rebates for Interruption
only***


 


(b)   Applicable Regulatory Fees  in respect of the Customer RF Channel Service(s) as
specified in Section C.5  of Schedule 1
shall be ***


 


2.4          Advanced Payments


 


(a)   Subject to Section 2.4(b) below,
Customer shall pay to Telesat the advanced payments (“Advanced Payments”) as
set forth in Schedule 4.


 


(b)   If Telesat gives
Customer less than *** prior written notice of the due date *** for any
Advanced Payment, Customer will pay such Advanced Payment on *** following
receipt of such notice.  In the event
that the number of Customer RF Channel Services is reduced in accordance with
*** if and to the extent that any portion of the Advanced Payments is then due
and outstanding, Customer shall be given a credit against said Advanced
Payments in an amount equal to the Advanced Payments applicable to such reduction***
for each whole RF Channel Service that is reduced or, if and to the extent that
Customer is then current on the Advanced Payments, Telesat shall *** refund to
Customer the portion of the Advanced Payments applicable to such reduction***
for each whole RF Channel Service that is reduced.  If and at such point that the Advanced
Payments then due and outstanding, taking into account such credits, if any,
have been paid in full such that there is no further Advanced Payment then due
and outstanding to be made against which such credit would apply, Telesat shall
*** of the occurrence of such reduction *** refund such amount that has not
been credited to Customer. *** In the event that this Agreement terminates in
its entirety prior to the Satellite Service Commencement Date pursuant to Section
4.2(a), Section 4.2(b), Section 4.2(c), Section 4.2(d), Section 4.2(e) and/or Section
G.3(b) of Schedule 1, or in the event of a Satellite Failure or launch failure
as described in Section 3 of Schedule 5 to this Agreement, Telesat shall refund
to Customer ***


 






***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.


 


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2.5          Terms and Conditions


 


The furnishing of the
Customer RF Channel Services by Telesat shall be subject to the Terms and
Conditions which the Parties hereby agree are incorporated by *** and
constitute an integral part of this Agreement.


 


2.6          MOA Transition Provisions


 


The Parties acknowledge
and agree that, while this Agreement will replace the “MOA” (as defined in
Schedule 5 hereto) and related agreements referenced in an MOA Termination
Agreement being entered contemporaneously herewith, ***


 






***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.


 


7

















 


ARTICLE 3.0 — REPRESENTATIONS
AND WARRANTIES


 


3.1          Mutual Representations and Warranties


 


Each Party represents
and warrants to the other Party as follows and acknowledges and confirms that
the other Party is relying thereon without independent inquiry in entering into
this Agreement:


 


(a)   Organization and Qualification.  It is a corporation duly incorporated,
organized, continued or amalgamated, and validly existing and in good standing
under the laws of the jurisdiction of its incorporation, organization,
continuance or amalgamation, as the case may be, and is duly qualified,
licensed or registered to carry on business under the laws applicable to it in
all jurisdictions in which the nature of its assets or business as currently
conducted makes such qualification necessary or where the failure to be so
qualified *** on its ability to perform its obligations hereunder.


 


(b)   Corporate Power. 
It has all requisite corporate power and authority to execute and deliver
this Agreement, to perform its respective obligations hereunder, to own its
properties and to carry on its business as now conducted and to consummate the
transactions contemplated hereby.


 


(c)   Authorizations, etc. The execution and delivery by it
of this Agreement and the performance of its respective obligations hereunder,
and the consummation by it of the transactions contemplated hereby, have been
duly authorized by all requisite corporate action.


 


(d)   Execution and Binding Obligation.  This Agreement has been duly executed and
delivered by it and constitutes legal, valid and binding obligations of it,
enforceable against it in accordance with its terms, except insofar as
enforceability may be affected by applicable Laws relating to bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect affecting
creditors’ rights generally or by principles governing the availability of
equitable remedies.


 


(e)   No Breach or Violation.  The execution and delivery of this Agreement
and performance of its respective obligations under this Agreement and
compliance with the terms, conditions and provisions hereof will not conflict
with or result in a breach of any of the terms, conditions or provisions of (i)
its organizational or constating documents or by-laws; (ii) any applicable Law;
(iii) any contractual restriction binding on it or affecting it or its
properties (without regard to requirements of notice, passage of time or
elections of any Person); or (iv) any judgement, injunction, determination or
award which is binding on it.  It has
not retained or authorized anyone to represent it as a broker or finder in
connection with this Agreement.  In
connection with its performance under this Agreement, it shall comply in all
material respects with all applicable laws, regulations, or orders of any
Governmental Entity.


 


(f)    Legal Proceedings. 
There is no judgement or order outstanding, or any action, suit,
complaint, proceeding or investigation by or before any Governmental Entity or any
arbitrator pending, or to the best of its knowledge, threatened, which, if
adversely determined, would be reasonably expected to have a material adverse
effect on its ability to consummate the transactions contemplated hereby or
perform its obligations hereunder.


 






***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.


 


8














 


ARTICLE 4.0 —
ADDITIONAL COVENANTS AND TERMINATION


 


4.1           Use of the Nimiq 5  Satellite
for the Intended Purpose


 


(a)   Telesat agrees, ***, to obtain and
maintain all Canadian Authorizations, including without limitation the DBS Slot
License and the Radio Authorization; provided that with respect to Canadian
Authorizations which are to be obtained and/or maintained by Canadian
Governmental Entities, Telesat shall use commercially reasonable efforts to
support such Canadian Governmental Entities in obtaining and maintaining such
Canadian Authorizations; further provided that, if following the Effective Date
of this Agreement additional Canadian Authorization(s) is required solely due
to an Authorization or other requirement of ***


 


(b)   Customer agrees, *** In accordance
with requests made and instructions given by Customer, Telesat shall use
commercially reasonable efforts ***, to support Customer’s efforts to obtain
and maintain all United States Authorizations.


 


(c)   Customer’s use of the Customer RF
Channel Services and/or the *** to provide services outside of the United
States (and thereby beyond the Intended Purpose herein stated) shall be
permitted, ***. In accordance with requests made and instructions given by
Customer, Telesat shall use commercially reasonable efforts ***, to support
Customer’s efforts to obtain and maintain such Authorizations as may be
required for Customer’s expanded use. 
***


 


4.2           Termination


 


This
Agreement may be terminated and the transactions contemplated by this Agreement
may be abandoned at any time prior to the Satellite Service Commencement Date
(except where a different timeframe has been expressly stated below):


 


(a)   ***


 


(b)   at the option of
Customer, if the Nimiq 5 Satellite has not been launched by ***


 


(c)   at the option of Customer, if the
Satellite Service Commencement Date has not occurred within the earlier of: ***


 


(d)   ***


 


4.3           Liabilities in Event of Termination


 


(a)   Subject to Section 4.3(b) and except
as expressly set forth to the contrary herein, the termination or expiration of
this Agreement will in no way limit any obligation or liability of either Party
based on or arising from a breach or default by such Party with respect to any
of its representations or warranties contained in this Agreement, or with
respect to any of its covenants or agreements contained in this Agreement which
by their terms were to be performed prior to the date of termination or
expiration, nor shall any such termination or expiration release either Party
from any liabilities or obligations under this Agreement, including without
limitation any liabilities or obligations under Section 2.4 or under Section E,
Section G.3(d), Section I.5 or Section J of Schedule 1.


 


(b)   Upon the termination of this
Agreement pursuant to Section 4.2, the Parties shall have no further
obligations or liabilities to each other hereunder or in respect to the
transactions contemplated hereby, except as otherwise provided under Section 2.4(b)
and Section 2.4(c).


 


4.4           General Rights and Remedies


 


Subject to the exclusions
and limitations of liability in the Terms and Conditions, in the event any
representation or warranty of any Party contained in this Agreement shall prove
to have been incorrect in any material respect when made or deemed to have been
made or if any Party fails to perform, observe or comply with any of its
covenants or agreements contained in this Agreement, the other Party will be
entitled to whatever rights or remedies are available at law or in equity.


 






***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.


 


9

















 


4.5           Undertakings With Respect to the
Customer RF Channel Services in the Event of
Certain Underutilization Circumstances


 


(a)   In
the event that, after the Satellite Service Commencement Date,  Telesat is receiving monthly fees *** for
less than ***
RF Channels on the Nimiq 5 Satellite in aggregate ***
then Telesat may, subject to the balance of this subsection 4.5(a), at any time
thereafter offer to enter into an agreement with Customer for the procurement
of thirty-two whole RF channel services with CONUS coverage (the “Customer 4.5
Replacement Services”) on a replacement satellite at the Orbital Position (the “Customer
4.5 Replacement Satellite”) at pricing to Customer that shall be determined ***and
otherwise on terms and conditions substantially similar to the terms and
conditions of this Agreement (the “Customer 4.5 Offer”).  Within *** of
receipt of the Customer 4.5 Offer, Customer may elect to accept the Customer
4.5 Offer by giving written notice of acceptance.  ***


 


(b)   If
Customer timely accepts a Customer 4.5 Offer, then Customer shall be entitled *** until
the Customer 4.5 Replacement Satellite is placed into commercial operation at
the Orbital Position.


 


(c)   If
Customer does not timely accept a Customer 4.5 Offer, then ***


 


(d)   If
Customer does not timely accept a Customer 4.5 Offer then Telesat shall ***


 






***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

















 


ARTICLE
5.0 — ***


 


***


 






***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.


 


11

















 


ARTICLE
6.0 — FREQUENCY COORDINATION  AND SATELLITE CONFIGURATION


 


6.1           The
Parties acknowledge and agree that the Nimiq 5 Satellite will be operated
consistent with the ***. The Parties further agree that, notwithstanding
anything to the contrary set forth herein, Telesat shall ***.   For the avoidance of doubt, Customer must
operate within the existing Frequency Coordination Limits, and Customer shall
pay for the Customer RF Channel Services under this Agreement, as if the Nimiq
5 Satellite fully meets the Performance Specifications ***, if the sole reason that it is not
meeting such Performance Specifications is due to the Nimiq 5 Satellite being
operated in accordance with the existing Frequency Coordination Limits.


 


Telesat agrees to use
commercially reasonable efforts to coordinate the Orbital Position with other
operators and administrations in accordance with written instructions provided
by Customer at any time and from time to time. 
Furthermore, Telesat shall, provided that it would be consistent with
the health, safety, and performance of the Nimiq 5 Satellite configure the
Nimiq 5 Satellite in accordance with written instructions received from
EchoStar at any time and from time to time.


 


Nothing herein shall be
deemed to require Telesat to accept concessions in connection with any
coordination activities contemplated herein ***, acting in a commercially reasonable
manner, nor shall Telesat have *** if any such coordination cannot be
achieved.  Notwithstanding the
immediately preceding sentence, each Party acknowledges and agrees that the
other Party shall be entitled to *** of the first Party’s obligations under
this Section.


 






***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.


 


12

















 


ARTICLE
7.0. — INTENTIONALLY OMITTED


 






***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.


 


13

















 


ARTICLE 8.0 — MISCELLANEOUS


 


8.1           Parties Obligated and
Benefited


 


This Agreement will be
binding upon the Parties and their respective permitted assigns and successors
in interest and will inure solely to the benefit of the Parties and their
respective permitted assigns and successors in interest, and no other Person
will be entitled to any of the benefits conferred by this Agreement or to rely
on the provisions hereof in any action, suit, proceeding, hearing or other
forum.  Neither Party shall be permitted
to assign any of its rights under this Agreement or delegate any of its duties
or obligations under this Agreement without the prior written consent of the
other Party, provided that either Party may, without the consent of the other
Party, assign its rights and obligations hereunder to:


 


(a)   any Affiliate; or


 


(b)   any successor Person in connection
with any merger or reorganization of its business; or


 


(c)   its *** of the Nimiq 5 Satellite or
the Customer RF Channel Services, as the case may be; or


 


(d)   the *** in the Nimiq
5
Satellite and the RF Channels upon the occurrence of a; ***


 


8.2           Notices


 


Any notice required or
permitted to be given hereunder shall be in writing and shall be sent by
facsimile transmission, or by first class certified mail, postage prepaid, or
by overnight courier service, charges prepaid, to the party to be notified,
addressed to such party at the address set forth below, or sent by facsimile to
the fax number set forth below, or such other address or fax number as such
party may have substituted by written notice to the other party.  The sending of such notice with confirmation
of receipt thereof (in the case of facsimile transmission) or receipt of such
notice (in the case of delivery by mail or by overnight courier service) shall
constitute the giving thereof.


 






***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.


 


14

















 


If directed to Telesat:


 


Telesat Canada


***


 


Attention: VP North America Sales


 


With copy to General Counsel


 


If directed to Customer:


 


EchoStar Corporation


100 Inverness Terrace East


Englewood, Colorado 80112


***


 


Attention: Senior VP Space Programs and Operations


 


With copy to


EchoStar Corporation


9601 S. Meridian Blvd.


Englewood, Colorado 80112


***


 


Attention: General Counsel


 


8.3           Expenses


 


Except as otherwise
expressly provided herein, all costs and expenses *** incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
***


 


8.4           Non-Merger


 


Except
as otherwise expressly provided in this Agreement, the covenants,
representations and warranties of the Parties contained in this Agreement shall
not merge on and shall survive the Satellite Service Commencement Date and,
notwithstanding any investigation made by or on behalf of either Party, shall
continue in full force and effect throughout the Term.


 


8.5           Governing Law


 


This Agreement shall be
governed by and interpreted in accordance with the laws of the Province of
Ontario and the laws of Canada applicable therein.  Any
controversy or claim arising out of or relating to this Agreement, or the
breach, termination or validity thereof, shall be determined by binding
arbitration administered by the American Arbitration Association in accordance
with its then-current International Arbitration Rules and Supplementary
Procedures for Large, Complex Disputes, and judgment on the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof.  The number of arbitrators shall be three.
Within 15 days after the commencement of arbitration, each Party shall select
one person to act as an arbitrator and the two selected shall select a third
arbitrator within 10 days of their appointment. 
If the arbitrators selected by the parties are unable or fail to agree
upon a third arbitrator within twenty (20) days after the commencement of the
arbitration, the third arbitrator shall be selected by the American Arbitration
Association.  The place of arbitration
shall be New York City, New York USA. 
The language of the arbitration shall be English.  The arbitrators shall have no authority to
award punitive or other damages not measured by the prevailing party’s actual
damages.  In furtherance and without
limitation of the foregoing, the arbitrators shall not award consequential
damages in any arbitration initiated under this Section 8.5.  The arbitrators shall award to the prevailing
party, in addition to any other money
damages awarded, its reasonable costs, including reasonable attorneys’ fees, in
successfully bringing or defending against such arbitration.  The award of the arbitrators shall be in
writing, shall be signed by a majority of the 


 






***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.


 


15

















 


arbitrators,
and shall be accompanied by a reasoned opinion, including findings of fact, the
reasons for the disposition of each claim, and a breakdown of any monetary
award as to specific claims (if applicable). 
Except as may be required by law, neither a party nor an arbitrator may
disclose the existence, content, or results of any arbitration hereunder
without the prior written consent of both parties.  Notwithstanding the foregoing, the request by
either party for equitable relief, including without limitation preliminary or
permanent injunctive relief, shall not be subject to arbitration under this Section
8.5, and may be adjudicated before any court of competent jurisdiction.


 


8.6           U.S. Export Control


 


The Parties agree and
acknowledge that in connection with their respective obligations under this
Agreement, they shall at all times comply with the laws, rules and regulations
of the United States regarding export restrictions, including, without
limitation, the International Traffic in Arms Regulations, 22 CFR §§
120-130.  This Section shall survive the
expiration or termination of this Agreement.


 


8.7           Injunctive Relief


 


Notwithstanding anything to the contrary set forth herein, the Parties
agree that each of them shall be entitled to injunctive relief, if necessary,
in order to prevent the other Party from willfully breaching its obligations
under this Agreement or to compel the other Party to perform its obligations
under this Agreement.  Each Party
acknowledges that in the event that it willfully breaches its obligations under
this Agreement, the harm suffered by the other Party would not be adequately
compensated by monetary damages and there would be no adequate remedy at law
for the first Party’s willful breach or failure to perform and, accordingly,
the other Party shall be entitled to specific performance and injunctive relief
(in addition to any other remedies available at law or in equity) specifically
preventing any such willful breach and enforcing the provisions not being
performed hereunder.


 


8.8           Counterparts


 


This Agreement may be
executed by facsimile and/or in one or more counterparts, each of which shall
be deemed an original and all of which, taken together, shall constitute one
and the same instrument.


 


8.9           Conditions Subsequent


 


Notwithstanding
anything to the contrary contained herein, this Agreement shall not become
effective until and unless:


 


(a)           both of the following conditions (i) and (ii) have
been met:


 


(i)           all Canadian Authorizations  are
issued *** to  (x) Telesat to launch and operate
the Nimiq 5 Satellite and/or to provide the Customer RF
Channel Services to Customer under the terms and conditions of this Agreement,
and/or (y) Telesat and/or Customer to (A) uplink from the United States to, and
downlink into the United States from, the Nimiq 5 Satellite at the Orbital
Position, and/or (B) use the Customer RF Channel Services for the Intended
Purpose; and


 


(ii)           as of the satisfaction of condition (i) immediately
above there shall not have been instituted any *** to (x) Telesat to launch and
operate the Nimiq 5 Satellite and/or to provide the
Customer RF Channel Services to Customer under the terms and conditions of this
Agreement, and/or (y) Telesat and/or Customer to (A) uplink from the United
States to, and downlink into the United States from, the Nimiq 5 Satellite at
the Orbital Position, and/or (B) use the Customer RF Channel Services for the
Intended Purpose;


 






***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.


 


16

















 


OR


 


(b)           there
has occurred a Satellite Failure or a launch failure of the Nimiq 5 Satellite
(for purposes of this Section 8.9 only, “Satellite Failure” means
the total destruction, failure or loss of the Nimiq 5 Satellite, ***).


 


The
first date upon which either condition (a) above or condition (b) above has
been satisfied is referenced herein as the “Effective Date.”


 


***


 


8.10         Notwithstanding
Article 8.9, the Parties agree that the following provisions shall become
effective as of the Execution Date: (i) Telesat’s notice obligations under the
first two sentences of Section 2.1(b); (ii) each Party’s obligations under Section
2.2(b) (except for the second sentence thereof); (iii) Sections 2.2(c), 2.2(d) and
2.2(e); and (iv) the confidentiality provisions, including restrictions on the use of
proprietary information (and associated remedy provisions)
contained in this Agreement (including without limitation Schedule 1 hereto).


 






***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.


 


17

















 


IN WITNESS WHEREOF each of the parties hereto has duly
executed this Agreement under the hands of its proper officers duly authorized
in that behalf effective as of the Effective Date.


 


 


TELESAT CANADA


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


ECHOSTAR
CORPORATION


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  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.


 


18














 


SCHEDULE 1


 


Terms And Conditions


For Full Period Whole RF Channel Service


On The Nimiq 5 Satellite


 


***


 






***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.


 

















 


SCHEDULE 2


 


PERFORMANCE SPECIFICATIONS


 


***


 






***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.


 


20

















 


SCHEDULE 3


 


AVAILABILITY OF *** RF
CHANNELS


 


***


 






***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.


 


21

















 


SCHEDULE 4


 


ADVANCED PAYMENTS


 


***


 






***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.


 


22

















 


SCHEDULE 5


 


MOA TRANSITION
PROVISIONS


 


***


 






***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.


 


23

















 


SCHEDULE 6


 


ACCESS REQUIREMENTS


 


***


 






***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.


 


24