Exhibit 10.2


 


ECHOSTAR CORPORATION


 


- and -


 


DISH NETWORK L.L.C.


 






 


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            [Reserved]


 


Schedule 5            [Reserved]


 


Schedule 6            Access Requirements


 


Schedule 7            DISH-Telesat Letter


 






***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,
by and between 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 “EchoStar”) and DISH Network L.L.C.,
a Colorado limited liability company with offices located at 9601 South
Meridian Boulevard, Englewood, CO 80112 (hereinafter collectively referred to
with its permitted assigns and successors in interest as “Customer”), and shall
become effective upon the Effective Date (as such term is defined in the
Telesat Agreement; such date shall also be referred to as the “Effective Date”
for purposes of this Agreement).


 


WHEREAS
Customer has agreed to subscribe for, and EchoStar 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).


 


“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.


 


“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 EchoStar to provide the Customer RF
Channel Services to Customer under the terms and conditions of this Agreement,
and (b) to the 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.


 






***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.


 

















 


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


 


“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.


 


“DISH” means Dish Network
Corporation.


 


“DISH-Telesat Letter” means that certain
letter by and between DISH and Telesat regarding the Nimiq 5 Whole RF Channel
Service Agreement, dated September 15, 2009, attached hereto as Schedule 7.


 


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


 


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


 


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


 


“EchoStar 4.6 Offer”
shall have the meaning ascribed to that term in Section 4.6.


 


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


 


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


 


***


 


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


 


“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, ***


 


***


 


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


 


“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
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(a).


 


***


 


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


 






***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

















 


***


 


“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.


 


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


 


***


 


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


 


“Parties” means EchoStar, 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.


 


“Prior Nimiq 5 Agreement” means that certain Nimiq
5 Transponder Service Agreement by and between the Parties, dated as of March 11,
2008.


 


“Radio Authorization” means the authorization
of the Minister of Industry (Canada) pursuant to the Radiocommunication
Act (Canada) required 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).


 


“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.


 


“Satellite Service
Commencement Date”  means the date on which
EchoStar provides notice in writing to Customer that 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” means Telesat Canada, a
corporation continued and existing under the laws of Canada.


 


“Telesat Agreement” means that certain Nimiq 5 Whole RF Channel
Service Agreement by and between EchoStar and Telesat, dated as of September 15,
2009.


 


“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.


 






***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

















 


“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, 6 and 7 attached hereto, and the agreements
referred to herein or delivered pursuant hereto (including without limitation
***) 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, including without limitation
the Prior Nimiq 5 Agreement; 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. 
For the avoidance of doubt, nothing set forth herein shall limit the
effectiveness of the DISH-Telesat Letter.


 


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 are expressed in the currency of the United States of America.


 






***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.


 


4

















 


ARTICLE 2.0 — SERVICE
COMMITMENT


 


2.1          Service Commitment on Nimiq
5 Satellite


 


(a)   Customer
hereby
agrees to subscribe for, and EchoStar 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.


 


***


 


2.2          Term, Satellite Service
Commencement Date


 


(a)   Unless terminated earlier as
provided herein and subject to certain situations under the Telesat Agreement
in which EchoStar (and therefore Customer) is required to cease using capacity
on the Nimiq 5 Satellite, the term of this Agreement shall commence upon the
Effective Date and shall expire on the date which is ten
(10) years
following the Satellite Service Commencement Date (the “Initial
Term”). 
The Initial Term may be extended at Customer’s sole option for
successive one-year periods (or a portion thereof in the case of the final
extension) (each an “Extended Term”) through EOL, unless earlier terminated in
accordance with the terms hereof and subject to certain situations under the
Telesat Agreement in which EchoStar (and therefore Customer) is required to
cease using capacity on the Nimiq 5 Satellite, upon written notice to EchoStar
provided at least one hundred twenty (120) days prior to the end of the Initial
Term and/or the then-current Extended Term (the Initial Term, plus any such
Extended Terms, the “Term”).  The term of
this Agreement with respect to all matters other than the Customer RF Channel
Service(s) shall commence upon the Effective Date hereof and shall continue in
full force and effect until the expiration or termination of all of EchoStar’s
rights under the Telesat Agreement to *** (the “Full Term”).


 


(b)   EchoStar 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 EchoStar 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, ***. EchoStar shall promptly, and in no event later
than *** after EchoStar’s actual knowledge of the applicable change or
development, advise Customer of any changes and other developments relating to
the operation and performance of the Nimiq 5 Satellite which *** could be
expected to result in the Customer RF Channel Services not meeting the
Performance Specifications. 
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 ***


 






***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

















 


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.


 


(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          [Reserved]


 


2.5          Terms and Conditions


 


The furnishing of the
Customer RF Channel Services by EchoStar 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          Prior Nimiq 5 Transponder Service Agreement


 


The Parties acknowledge
and agree that this Agreement will replace the Prior Nimiq 5 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.


 


6

















 


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 an entity 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.


 


7

















 


ARTICLE 4.0 —
ADDITIONAL COVENANTS AND TERMINATION


 


4.1          Use of the Nimiq 5  Satellite
for the Intended Purpose


 


(a)   EchoStar agrees, ***, to use
commercially reasonable efforts to cause Telesat 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,
EchoStar shall use commercially reasonable efforts to cause Telesat 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)   EchoStar agrees, ***.    In accordance with requests made and
instructions given by EchoStar, Customer shall use commercially reasonable
efforts to support, ***, the efforts of EchoStar 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, EchoStar shall use commercially
reasonable efforts to support (and to cause Telesat 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:


 


***


 


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 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.


 


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.


 


8














 


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 provisions of the Telesat Agreement, at any time
thereafter offer (the “EchoStar 4.5 Offer”) to enter into an agreement with
EchoStar for the procurement of thirty-two whole RF channel services with CONUS
coverage (the “EchoStar 4.5 Replacement Services”) on a replacement satellite
at the Orbital Position (the “EchoStar 4.5 Replacement Satellite”).  EchoStar shall provide the terms and
conditions of the EchoStar 4.5 Offer to Customer within *** of receipt of the
EchoStar 4.5 Offer by EchoStar.  Upon
written request of Customer received by EchoStar no later than *** following
EchoStar’s receipt of the EchoStar 4.5 Offer, EchoStar shall accept the
EchoStar 4.5 Offer by giving written notice of acceptance to Telesat.  Upon acceptance of the EchoStar 4.5 Offer,
EchoStar and Customer shall automatically be deemed to have entered into an
agreement for the provision by EchoStar to Customer of the EchoStar 4.5
Replacement Services on the EchoStar 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.  In the event that Customer fails to timely
request that EchoStar accept an EchoStar 4.5 Offer, then ***


 


(b)   If
Customer does not timely accept a EchoStar 4.5 Offer, ***


 


4.6           Replacement Services


 


Upon the earliest
to occur of: (i) the Nimiq 5 Satellite experiences a launch failure; (ii) the
Nimiq 5 Satellite becomes a total loss or experiences a total failure in-orbit
or there is a Satellite Failure; (iii) *** of the Satellite Service
Commencement Date; or (iv) transfer of title to the Nimiq 5 Satellite ***,
Telesat shall offer to enter into an agreement with EchoStar for the
procurement of thirty-two (32) whole RF channel services with CONUS coverage on
a replacement satellite at the Orbital Position (the “EchoStar 4.6 Offer”).  EchoStar shall provide the terms and
conditions of the EchoStar 4.6 Offer to Customer *** of receipt of the EchoStar
4.6 Offer by EchoStar.  Upon written
request of Customer received by EchoStar *** following EchoStar’s receipt of
the EchoStar 4.6 Offer, EchoStar shall accept the EchoStar 4.6 Offer by giving
written notice of acceptance to Telesat. 
Upon acceptance of the EchoStar 4.6 Offer, EchoStar and Customer shall
automatically be deemed to have entered into an agreement for the provision by
EchoStar to Customer of thirty-two (32) whole RF channel services with CONUS
coverage on a replacement satellite at the Orbital Position at pricing to
Customer that shall be determined *** and otherwise on terms and conditions
substantially similar to the terms and conditions of this Agreement.  In the event that Customer fails to timely
request that EchoStar accept an EchoStar 4.6 Offer, then ***


 






***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

















 


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.


 


10

















 


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, EchoStar 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.


 


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


 


Nothing herein shall be
deemed to require EchoStar or Telesat to accept concessions in connection with
any coordination activities contemplated herein *** acting in a commercially
reasonable manner, nor shall EchoStar or 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.


 


11

















 


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.


 


12

















 


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.  *** 
Other than as expressly set forth in the prior sentence, 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)   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.


 


13

















 


If directed to Customer:


 


Attn:  Office of the President


DISH Network L.L.C.


9601 South Meridian Blvd.


Englewood, Colorado 80112


***


 


cc:  Office of the General Counsel


***


(same address as above)


 


If directed to EchoStar:


 


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           Choice of Law; Consent to
Jurisdiction


 


This Agreement shall be
governed in all respects by the laws of the State of Colorado (without giving
any effect to the conflict of laws provisions thereof), as such laws are
applied to agreements between Colorado residents entered into and to be
performed entirely within Colorado.  The
federal and state courts in the State of Colorado shall have exclusive
jurisdiction to hear and determine any and all claims, disputes, actions and
suits that may arise under or out of this Agreement.  The parties hereby agree and voluntarily
consent to the personal jurisdiction of, and waive any objection to venue in,
such courts for such purposes and agree to accept service of process outside
the State of Colorado in any matter to be submitted to any such court pursuant
hereto.


 


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.


 






***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

















 


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           Enforcement Under the Telesat
Agreement.


 


The
Parties hereby acknowledge that all rights and entitlements of Customer set
forth under this Agreement are derivative of the rights Echostar obtained from
Telesat under the Telesat Agreement. 
EchoStar hereby agrees to enforce and pursue such rights and
entitlements on behalf of, and for the benefit of Customer, at Customer’s
direction.


 


8.10         Certain Actions Under the Telesat Agreement.


 


During
the Full Term, EchoStar agrees that it will not *** the Telesat Agreement or
any of its rights or obligations thereunder, or *** without in either case
obtaining the prior written consent of Customer (which consent may be withheld
in Customer’s sole and absolute discretion for any reason or no reason).  During the Full Term, EchoStar agrees ***
without Customer’s prior written consent (which consent may be withheld in
Customer’s sole and absolute discretion for any reason or no reason).  During the Full Term, EchoStar agrees to ***
with respect to the Telesat Agreement, and EchoStar further agrees not to take
any action, or refrain from taking any action, under the Telesat Agreement that
would *** without Customer’s prior written consent (which consent may be
withheld in Customer’s sole and absolute discretion for any reason or no
reason).


 


8.11         ***


 


8.12         ***


 


8.13         ***


 


8.14         DISH Assumption.


 


If
DISH becomes the prime obligor under the Service Agreement (as such term is
defined in the DISH-Telesat Letter), this Agreement 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.


 


15

















 


8.15         ***


 






***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

















 


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.


 


 


DISH NETWORK L.L.C.


 


 


	
  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.


 














 


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.


 


2

















 


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.


 


3

















 


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.


 


4

















 


SCHEDULE 4


 


[Reserved]


 






***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

















 


SCHEDULE 5


 


[Reserved]


 






***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.


 


6

















 


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.


 


7

















 


SCHEDULE 7


 


DISH-TELESAT LETTER


 


***


 






***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