exv10w1



 





Exhibit 10.1




FORM OF




TRANSITION SERVICES AGREEMENT




          THIS TRANSITION SERVICES AGREEMENT is entered into as of [•], 2007, by and between EchoStar
Communications Corporation, a Nevada corporation (“DISH”), and Echostar Holding
Corporation, a Nevada corporation (the “Company”).




          WHEREAS, the Board of Directors of DISH has determined that it is appropriate and desirable to
separate DISH and the Company into two publicly-traded companies by separating from DISH and
transferring to the Company DISH’s non-consumer related businesses and related assets and
liabilities (the “Separation”);




          WHEREAS, DISH and the Company have entered into that certain Separation Agreement, dated as of
[•] (the “Separation Agreement”), in order to carry out, effect and consummate the
Separation; and




          WHEREAS, to facilitate the Separation, DISH and the Company deem it to be appropriate and in
the best interests of DISH and the Company that DISH provide certain services to the Company
pursuant to the terms and conditions set forth herein.




          NOW, THEREFORE, in consideration of the mutual promises, covenants, agreements,
representations and warranties contained herein, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree, intending
to be legally bound, as follows:




ARTICLE I




Definitions




          Section 1.1 Definitions. Unless otherwise defined herein, each capitalized term shall
have the meaning specified for such term in the Separation Agreement. As used in this Agreement:





     (a) “Agreement” means this Transition Services Agreement, the provisions of the
Separation Agreement referenced herein and all Schedules attached hereto and incorporated
herein by this reference and all amendments, modifications and changes hereto and thereto.




     (b) “Company Indemnified Parties” means the Company and its Affiliates and each
of their respective present and former directors, managers, or persons acting in a similar
capacity, officers, employees, agents, consultants, or other representatives and each of the
heirs, executors, successors and assigns of any of the foregoing.




     (c) “Company Systems” means any computer software program or routine or part
thereof owned, licensed or provided by or for the Company or any of its Subsidiaries which
is used by the Company or any of its Subsidiaries or their suppliers on behalf the Company
or any
of its Subsidiaries, each as modified, maintained or enhanced from time to time by the
Company or any of its Subsidiaries, DISH or any of its Subsidiaries or any Third Party.



 









 






     (d) “Cost” means the fully-burdened cost incurred by DISH and its Affiliates
to provide or procure the Services. For purposes of this definition, the fully-burdened
cost includes without limitation: (i) the costs of any materials
or fees paid to third party consultants or advisers used in the provision or
procurement of the Services; (ii) shipping costs; (iii) the salary, benefits (if any)
(including without limitation, medical plans and 401(k) or other retirement plans),
employment taxes (if any) of all DISH employees involved in the provision or procurement of
the Services; (iv) related overhead expenses (including without limitation cost of
facilities and utilities costs, insurance, and the cost of all general support, operational
and business services); (v) any and all licensing fees paid or payable to Third Parties for
any intellectual property incorporated into the Services; and (iv) depreciation on any
equipment or assets involved in the provision or procurement of the Services.




     (e) “DISH Indemnified Parties” means DISH and its Affiliates and each of their
respective present and former directors, managers, or persons acting in a similar capacity,
officers, employees, agents, consultants, or other representatives and each of the heirs,
executors, successors and assigns of any of the foregoing.




     (f) “DISH Systems” means any computer software program or routine or part
thereof owned, licensed or provided by or for DISH or any of its Subsidiaries which is used
by DISH or any of its Subsidiaries or their suppliers on behalf DISH or any of its
Subsidiaries, each as modified, maintained or enhanced from time to time by DISH or any of
its Subsidiaries or any Third Party.




     (g) “Expenses” means any and all expenses incurred in connection with
investigating, defending or asserting any claim, action, suit or proceeding incident to any
matter indemnified against hereunder (including court filing fees, court costs, arbitration
fees or costs, witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, consultants, accountants and other professionals).




     (h) “Systems” means the DISH Systems or the Company Systems, individually, or
the DISH Systems and the Company Systems, collectively, as the context may indicate.




     (i) “Third Party” means a Person that is not an Affiliate of any party hereto.



          Section 1.2 Interpretation. (a) In this Agreement, unless the context clearly
indicates otherwise:





     (i) words used in the singular include the plural and words used in the plural include
the singular;




     (ii) references to any Person include such Person’s successors and assigns but, if
applicable, only if such successors and assigns are permitted by this Agreement, and a
reference to such Person’s “Affiliates” shall be deemed to mean such Person’s Affiliates
following the Distribution;




     (iii) references to any gender includes the other gender;



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     (iv) the words “include,” “includes” and “including” shall be deemed to be followed by
the words “without limitation”;




     (v) references to any Article, Section or Schedule means such Article or Section of, or
such Schedule to, this Agreement, as the case may be, and references in any Section or
definition to any clause means such clause of such Section or definition;




     (vi) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import
shall be deemed references to this Agreement as a whole and not to any particular Section or
other provision hereof;




     (vii) references to any agreement, instrument or other document means such agreement,
instrument or other document as amended, supplemented and modified from time to time to the
extent permitted by the provisions thereof and by this Agreement;




     (viii) references to any Applicable Law (including statutes and ordinances) means such
law (including all rules and regulations promulgated thereunder) as amended, modified,
codified or reenacted, in whole or in part, and in effect at the time of determining
compliance or applicability;




     (ix) relative to the determination of any period of time, “from” means “from and
including,” “to” means “to but excluding” and “through” means “through and including”;




     (x) accounting terms used herein shall have the meanings historically ascribed to them
by DISH and its Subsidiaries, including the Company, in its and their internal accounting
and financial policies and procedures in effect prior to the date of this Agreement;




     (xi) if there is any conflict between the provisions of the Separation Agreement and
this Agreement, the provisions of this Agreement shall control with respect to the subject
matter hereof;




     (xii) the titles to Articles and headings of Sections contained in this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a part of or
to affect the meaning or interpretation of this Agreement;




     (xiii) any portion of this Agreement obligating a party hereto to take any action or
refrain from taking any action, as the case may be, shall mean that such party shall also be
obligated to cause its relevant Affiliates to take such action or refrain from taking such
action, as the case may be (and, accordingly, if Services are provided by Affiliates of
DISH, references to “DISH” shall be deemed to be references to such Affiliate which shall
provide the Services under this Agreement; and




     (xiv) unless otherwise specified in this Agreement, all references to dollar amounts
herein shall be in respect of lawful currency of the United States.



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ARTICLE II




Performance of Services




          Section 2.1 Description of the Services. Following the Distribution Date, DISH shall
provide, or cause to be provided, the following services (collectively, the “Services”) to
the Company in support of the Separated Businesses:




     (a) Financial Services. DISH or its designee shall provide each of the financial
services specified in Schedule 2.1.1 (the “Financial Services”) to the Company or
its Subsidiaries, in accordance with the terms and conditions for such Financial Services listed on
Schedule 2.1.1.



     (b) IT Services. DISH or its designee shall provide each of the IT services specified
in Schedule 2.1.2 (the “IT Services”) to the Company or its Subsidiaries, in
accordance with the terms and conditions for such IT Services listed on Schedule 2.1.2.



     (c) Travel and Event Coordination Services. DISH or its designee shall provide each
of the travel and events coordination services specified in Schedule 2.1.3 (the “Travel
and Event Coordination Services”) to the Company or its Subsidiaries, in accordance with the
terms and conditions for such Travel and Event Coordination Services listed on Schedule
2.1.3.



     (d) Human Resources Services. DISH or its designee shall provide each of the human
resources services (including human resources development (training)) specified in Schedule
2.1.4 (the “Human Resources Services”) to the Company or its Subsidiaries, in
accordance with the terms and conditions for such Human Resources Services listed on Schedule
2.1.4.



     (e) Program Management Services. DISH or its designee shall provide each of the
program management services specified in Schedule 2.1.5 (the “Program Management
Services”) to the Company or its Subsidiaries, in accordance with the terms and conditions for
such Program Management Services listed on Schedule 2.1.5.



     (f) Internal Audit Services. DISH or its designee shall provide each of the internal
audit and corporate quality services specified in Schedule 2.1.6 (the “Internal Audit
Services”) to the Company or its Subsidiaries, in accordance with the terms and conditions for
such Internal Audit Services listed on Schedule 2.1.6.



     (g) Legal Services. DISH or its designee shall provide each of the legal services
specified in Schedule 2.1.7 (the “Legal Services”) to the Company or its
Subsidiaries, in accordance with the terms and conditions for such Legal Services listed on
Schedule 2.1.7.



     (h) Accounting and Tax Services. DISH or its designee shall provide each of the
accounting and tax services specified in Schedule 2.1.8 (the “Accounting and Tax
Services”) to the Company or its Subsidiaries, in accordance with the terms and conditions for
such Accounting and Tax Services listed on Schedule 2.1.8.



     (i) Other Services: To the extent fees for a specific Service are not provided in
Schedule 2.1.1 through Schedule 2.1.8, then DISH or its designee shall provide such
Service in accordance with the terms and conditions listed on Schedule 2.1.9.



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          Section 2.2 Schedules Update. To the extent any Services are mischaracterized in any
of Schedule 2.1.1 through Schedule 2.1.9 (collectively, the “Service
Schedules”), DISH and the Company shall negotiate in good faith to amend such Service Schedules
as appropriate.




          Section 2.3 Service Levels. With respect to Services that DISH provided, or caused to
be provided, to the Separated Businesses prior to the Distribution Date, DISH shall at all times
perform such Services (i) with at least the same degree of care, skill and diligence with which
DISH performs similar services for itself, consistent with past practices, including, with respect
to the type, quality and timeliness of such Services, subject to variation in the provision of such
Services agreed to by the parties hereto, but, in no case may such degree of care, skill and
diligence be less than the degree of care, skill and diligence with which DISH historically has
performed such Services for the benefit of the Separated Businesses prior to the Distribution Date,
(ii) with the use of reasonable care, (iii) in material compliance with Applicable Laws and (iv)
with substantially the same priority under comparable circumstances as it provides such services to
itself and its Subsidiaries.




          Section 2.4 Additional Services. If the Company reasonably determines that additional
transition services of the type previously provided by the DISH or its designee to the Separated
Businesses are necessary to conduct the Separated Businesses and the Company or its Affiliates are
not able to provide such services to the Separated Businesses (each such service an “Additional
Service”), then the Company may provide written notice thereof to DISH. Upon receipt of such
notice by DISH, if DISH is willing, in its sole discretion, to provide such Additional Service, the
parties hereto will negotiate in good faith an amendment to the Services Schedules setting forth
the Additional Service, the terms and conditions for the provision of such Additional Service and
the Fees (as defined below) payable by the Company for such Additional Service, such Fees to be
determined on an arm’s-length basis and at fair market value.




          Section 2.5 Third Party Services. Each party hereto acknowledges and agrees that
certain of the Services to be provided under this Agreement have been, and will continue to be,
provided (in accordance with this Agreement) to the Company, as applicable, by Third Parties
designated by DISH responsible for providing such Services. To the extent so provided, DISH shall
use commercially reasonable efforts to (a) cause such Third Parties to provide such Services under
this Agreement and/or (b) enable the Company and its Affiliates to avail itself of such Services;
provided, however, that if any such Third Party is unable or unwilling to provide
any such Services, DISH shall use its commercially reasonable efforts to determine the manner in
which such Services can best be provided.




          Section 2.6 Cost of Providing the Services. Unless otherwise expressly set forth in this Agreement, DISH shall bear all costs of
providing the Services (including all out-of-pocket and third-party expenses incurred by DISH in
order to provide the Services).




ARTICLE III




Service Disruptions




          Section 3.1 Contingency Plans. DISH agrees to use commercially reasonable efforts,
consistent with its practices for itself and its divisions and Affiliates, to avoid any inability
to provide the Services. In the event of a disaster, DISH agrees to use the same degree of care to
restore the Services as DISH would use to restore similar services for itself and as provided in
Section 3.3, but in any event




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no less than commercially reasonable efforts. In the event
of scheduled downtime, DISH shall provide notice to the Company Contract Manager (as defined below)
with as much notice as is reasonably possible under the circumstances.




          Section 3.2 Non-Performance. (a) Except with respect to a Force Majeure Event (as
defined below) which shall be subject to Section 3.3, if DISH’s, any of its Affiliates’ or
any Third Party’s performance of any Service is interrupted in whole or in part for any reason for
more than two (2) consecutive Business Days (other than a Force Majeure Event), then the Company
shall have the right to make, at DISH’s sole cost and expense, commercially reasonable arrangements
to procure such interrupted Services from an alternative source at a cost no greater than the fair
market value of such interrupted Services for the period the Service is interrupted;
provided, that the Company shall provide prompt written notice to the DISH Contract Manager
setting forth in reasonable detail the terms and conditions of the arrangements to procure such
interrupted Services from an alternative source. For the avoidance of doubt, the Company shall not
be obligated to pay DISH for the interrupted Services during the period when DISH is not providing
such Services.




          Section 3.3 Force Majeure. (a) If DISH, any of its Affiliates or any Third Party
service provider is prevented from or delayed in complying, either totally or in part, with any of
the terms or provisions of this Agreement by reason of fire, flood, storm, strike, walkout, lockout
or other labor trouble or shortage, delays by unaffiliated suppliers or carriers, shortages of
fuel, power, raw materials or components, any Applicable Law, order, proclamation, regulation,
ordinance, demand, seizure or requirement of any Governmental Authority, riot, civil commotion,
war, rebellion, acts of terrorism, nuclear accident or other acts of God, or acts, omissions or
delays in acting by any governmental or military authority (a “Force Majeure Event”), then
upon notice to the Company, the affected provisions and/or other requirements of this Agreement
shall be suspended during the period of such disability and, unless otherwise set forth herein to
the contrary, the Company shall have no liability to DISH, its Affiliates, any Third Party or any
other Person in connection therewith. DISH shall use commercially reasonable efforts to promptly
remove such disability as soon as possible, but in any event no later than 30 days after giving
notice of such disability; provided, however, that nothing in this Section
3.3 will be construed to require the settlement
of any strike, walkout, lockout or other labor dispute on terms which, in the reasonable
judgment of DISH, are contrary to its interest. It is understood that the settlement of a strike,
walkout, lockout or other labor dispute will be entirely within the discretion of DISH. If DISH is
unable to provide any of the Services due to such a disability, each party hereto shall use
commercially reasonable efforts to cooperatively seek a solution that is mutually satisfactory.




          (b) Notwithstanding anything herein to the contrary, the obligation of DISH to resume
performance of its obligations hereunder pursuant to this Section 3.3 shall terminate and
cease to be in effect to the extent and period that the Company has acquired such Services from an
alternate source pursuant to this Section 3.3. The Company shall be free to acquire such
Services from an alternate source, at the Company’s sole cost and expense, and without liability to
DISH, for the period and to the extent reasonably necessitated by such non-performance and during
the continuation of any agreement entered into with the provider of such Service, and for that
period that such Service is provided by an alternate source, DISH shall have no obligation to
provide such Service to the Company. For the avoidance of doubt, the Company shall not be
obligated to pay DISH for such Services during the period when DISH is not providing such Services.




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          (c) Notwithstanding anything hereunder to the contrary, the parties hereto agree that this
Section 3.3 shall not be construed so as to excuse a party hereto of its obligations to
perform in accordance with Article VII and Article VIII at all times during the
term of this Agreement.




          Section 3.4 Recovery of Data. If DISH loses or damages any of the Company’s data,
DISH shall use its best efforts to recover and re-process such data immediately after discovery of
such loss or damage. If DISH is unable to re-process such data immediately, DISH shall notify the
Company in writing of such loss or damage.




ARTICLE IV




Cooperation




          Section 4.1 Cooperation. During the term of this Agreement, DISH shall provide
commercially reasonable cooperation to the Company by responding to the Company’s reasonable
requests for information related to the functionality or operation of the Services;
provided, that such requested information is related to the Separated Businesses and does
not require disclosure of any proprietary or confidential information of DISH or any of its
Affiliates. Without limiting the foregoing, DISH shall provide the Company with (i) reasonable
access (during reasonable business hours) to records and DISH employees related to the provision of
the Services and (ii) reasonable access (during reasonable business hours) for the Company’s
employees and consultants to DISH’s employees and facilities for the purpose of training and
consulting with respect to the Services; provided, that such access shall not interfere
with the day-to-day operations of DISH and its Subsidiaries.




          Section 4.2 Consents. (a) DISH shall, and shall cause its Affiliates to, cooperate
to obtain (i) all Consents for any Third Party software or other Third Party intellectual property
related to the provision of the Services sufficient to enable DISH or its designee to perform the
Services in accordance with this Agreement and (ii) all other Consents to allow DISH to provide the
Services and to allow the Company to access and use the Services (collectively, the “Required
Consents”); provided, however, that DISH shall not be obligated under this
Agreement to pay any consideration, grant any concession or incur any Liability to any third Person
to obtain any such Required Consent. Schedule 4.2 sets forth a list of all Required
Consents and whether such Consents have been obtained as of the date hereof.




          (b) In the event that any Required Consent is not obtained, then, unless and until such
Required Consent is obtained, the parties hereto shall cooperate with each other in achieving a
reasonable alternative arrangement for the Company to continue to process its work and for DISH to
perform such Services and in a manner which does not increase the fees or costs payable by the
Company hereunder.




          Section 4.3 Primary Points of Contact for Agreement.




          (a) Appointment and Responsibilities. Each party hereto shall appoint an individual
to act as the primary point of operational contact for the administration and operation of this
Agreement, as follows:




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     (i) The individual appointed by the Company as the primary point of operational contact
pursuant to this Section 4.3(a) (the “Company Contract Manager”) shall have
overall responsibility for coordinating on behalf of the Company all activities of the
Company undertaken hereunder, for the performance of the Company’s obligations hereunder,
for coordinating the performance of the Services with DISH, for acting as a day-to-day
contact with the DISH Contract Manager and for making available to DISH the data,
facilities, resources and other support services from the Company required for DISH to be
able to perform the Services in accordance with the terms of this Agreement. The Company
may change the Company Contract Manager from time to time upon written notice to DISH.




     (ii) The individual appointed by DISH as the primary point of operational contact
pursuant to this Section 4.3(a) (the “DISH Contract Manager”) shall have
primary operational responsibility for coordinating on behalf of DISH its joint activities
with the Company under the Agreement and for DISH’s performance of the Services, including
all DISH personnel and other resources used by DISH, and will serve as the day-to-day
contact with the Company Contract Manager. DISH may change the DISH Contract Manager from
time to time upon written notice to the Company.



          (b) Review Meetings and Reports. The DISH Contract Manager and the Company Contract
Manager shall meet at least monthly to review DISH’s performance of the Services as required under
this Agreement. The DISH Contract Manager shall provide to the parties hereto reports on the
parties’ respective performance, identifying any significant problems that are unresolved and any
details concerning their expected resolution.




          Section 4.4 Steering Committee.




          (a) Size and Composition. DISH shall appoint two (2) members of its management staff
and the Company shall appoint two (2) members of its management staff to serve on a steering
committee (the “Steering Committee”). Either party hereto may change its Steering
Committee members from time to time upon written notice to the other party; provided,
however, that the DISH Contract Manager and the Company Contract Manager shall at all times
remain as members of the Steering Committee. In addition, the parties hereto may mutually agree to
increase or decrease the size, purpose or composition of the Steering Committee in an effort for
DISH to better provide, and for the Company to better utilize, the Services.




          (b) Responsibilities. The Steering Committee’s responsibilities include (i) generally
overseeing the performance of each party’s hereto obligations under this Agreement and (ii)
assisting in providing the Services by DISH and utilizing the Services by the Company.




          Section 4.5 Meetings. The Steering Committee shall meet once a month or at such
other frequency as mutually agreed by the parties hereto or the members of the Steering Committee.
Each Steering Committee meeting shall be at a mutually acceptable location determined by the
members of the Steering Committee.




          Section 4.6 Dispute Resolution. The procedures for discussion and negotiation set
forth in this Section 4.6 shall apply to all disputes, controversies or claims (whether
arising in contract, tort or




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otherwise) that may arise out of or relate to, or arise under or in
connection with this Agreement or the transactions contemplated hereby.




          (a) Primary Points of Contact. It is the intent of the parties hereto to use their
respective reasonable best efforts to resolve expeditiously any dispute, controversy or claim
between them with respect to the matters covered hereby that may arise from time to time on a
mutually acceptable negotiated basis. In furtherance of the foregoing, if a dispute arises, the
Company Contract Manager and the DISH Contract Manager shall consider the dispute for up to seven
(7) Business Days following receipt of a notice from either party hereto specifying the nature of
the dispute, during which time the Company Contract Manager and the DISH Contract Manager shall
meet in person at least once, and attempt to resolve the dispute.




          (b) Senior Management. If the dispute is not resolved by the end of the seven (7) day
period referred to in Section 4.6(a), or if the Company Contract Manager and the DISH
Contract Manager agree that the dispute shall not be resolved by them, either party hereto may
deliver a notice (an “Escalation Notice”) demanding an in person meeting involving
appropriate representatives of the parties hereto at a senior level of management of the parties
hereto (or if the parties agree, of the appropriate strategic business unit or division within such
entity) (collectively, “Senior Executives”). Thereupon, each of the Company Contract
Manager and the DISH Contract Manager shall promptly prepare a memorandum stating (i) the issues in
dispute and each party’s position thereon, (ii) a summary of the evidence and arguments supporting
each party’s positions (attaching all relevant documents), (iii) a summary of the negotiations that
have taken place to date, and (iv) the name and title of the Senior Executive who shall represent
each party. The Company Contract Manager and the DISH Contract Manager shall deliver such
memorandum to its respective Senior Executive promptly upon receipt of
such memorandum from the DISH Contract Manager and the Company Contract Manager, respectively.
The Senior Executives shall meet for negotiations (which may be held telephonically) at a mutually
agreed time and place within 10 days of the Escalation Notice, and thereafter as often as the
Senior Executives deem reasonably necessary to resolve the dispute.




          (c) Court Actions. In the event that any party, after complying with the provisions
set forth in Sections 4.6(a) and 4.6(b) and desires to commence an action, such
party may submit the dispute, controversy or claim (or such series of related disputes,
controversies or claims), subject to Section 12.2, to any court of competent jurisdiction.
Unless otherwise agreed in writing, the parties hereto shall continue to provide service and honor
all other commitments under this Agreement during the course of dispute resolution pursuant to the
provisions of this Section 4.6 with respect to all matters not subject to such dispute,
controversy or claim.




ARTICLE V




Fees




          Section 5.1 Fees. The fees for any of the Services are set forth in the “Cost
Details” column in the respective Service Schedule (the “Fees”).




          Section 5.2 Taxes. To the extent required or permitted by Applicable Law, there shall
be added to any Fees due under this Agreement, and the Company agrees to pay to DISH, amounts equal
to any taxes, however designated or levied, based upon such Fees, or upon this Agreement or the
Systems,




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Services or materials provided under this Agreement, or their use, including state and
local privilege or excise taxes based on gross revenue and any taxes or amounts in lieu thereof
paid or payable by the Company. In the event taxes are not added to an invoice from DISH, the
Company shall be responsible to remit to the appropriate tax jurisdiction any additional amounts
due including tax, interest and penalty. If additional amounts are determined to be due on the
Services provided hereunder as a result of an audit by a tax jurisdiction, the Company agrees to
reimburse DISH for the additional amounts due including tax, interest and penalty. DISH will be
responsible for penalty or interest associated with its failure to remit invoiced taxes. The
parties hereto further agree that no party hereto shall be required to pay any franchise taxes,
taxes based on the net income of the other party hereto or personal property taxes on property
owned or leased by a party hereto.




ARTICLE VI




Invoice and Payment; Audit




          Section 6.1 Invoices and Payment. Within 20 days following the end of each month
during the term of this Agreement (or within 20 days after receipt of a Third Party supplier’s
invoice in the case of Services that are provided by a Third Party supplier), DISH will submit to
the Company for payment a written statement of amounts due under this Agreement for such month.
DISH shall include with each invoice a reasonably detailed description of the Services performed and the fees charged and, if requested by the
Company, will contain reasonably satisfactory documentation in support of such amounts as specified
therein and such other supporting detail as the Company may reasonably require to validate such
amounts due.




          Section 6.2 Timing of Payment; No Offsets. The Company will pay all undisputed
amounts due pursuant to this Agreement within 60 days after the date upon which each such statement
that is required to be provided hereunder is received by the Company. The Company shall not offset
any amounts owing to it by DISH or any of its Affiliates against amounts payable by the Company
hereunder or any other agreement or arrangement.




          Section 6.3 Fees Dispute. (a) In the event that the Company has a good faith dispute
with regard to any Fees invoiced by DISH (the “Disputed Fee”), the Company shall provide
DISH with written notice of such dispute (the “Fee Dispute Notice”), together with a
reasonably detailed explanation of such dispute, at the time payment would have otherwise been due,
and the Company may withhold payment of any Disputed Fee pending resolution of the dispute. For
the avoidance of doubt, the Company’s failure to pay the Disputed Fee in accordance with this
Section 6.3 shall not be grounds for a claim of breach or suspension of work by DISH.




          (a) In the event that the parties hereto are unable to agree after reasonable negotiation, in
accordance with Sections 4.6(a) and 4.6(b), upon the Disputed Fee, the parties
hereto shall jointly select a qualified unaffiliated independent third party to determine the fair
value (the “Arbitrator”). If the parties hereto are unable to agree on an Arbitrator
within 10 days of the receipt of a Fee Dispute Notice by DISH, then there shall be an arbitral
tribunal consisting of 3 neutral arbitrators of (the “Tribunal”) whom each party hereto
shall select one within 10 days of the receipt of a Fee Dispute Notice by DISH. The two
party-appointed arbitrators shall select the third arbitrator within 10 days of the nomination of
the second arbitrator. The determination of the Arbitrator or Tribunal, as applicable, with
respect to such disagreement shall be completed within 30 days after the appointment of the




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Arbitrator or Tribunal, as applicable, and such determination shall be final and binding upon the
parties hereto. The Arbitrator or Tribunal, as applicable, shall adopt the position of either the
Company or DISH with respect to the Disputed Fees. The fees, costs and expenses of the Arbitrator
or Tribunal, as applicable, selected in the event of a dispute shall be paid by the party hereto
who the Arbitrator or Tribunal, as applicable, did not side with in its decision.




          Section 6.4 Audit Rights. (a) The Company may audit (or cause an independent Third
Party auditor to audit) the books, records and facilities of DISH to the extent necessary to
determine DISH’s compliance with this Agreement with respect to Fees paid or payable pursuant to
this Article VI, or the performance of its other obligations set forth in this Agreement.
For any given Service, the Company shall have the right to audit the books, records and facilities
of DISH once for each twelve month period during which payment obligations are due (and at such
other times as may be required by Applicable Law). The Company shall also have the right to audit
(or cause an independent Third Party auditor to audit) the books, records and facilities of DISH
pertaining to a particular Service within six months after the termination of such Service.




          (b) Any audit shall be conducted during regular business hours and in a manner that complies
with the building and security requirements of DISH. Such audits shall not interfere unreasonably
with the operations of DISH. The Company shall provide notice to DISH not less than 30 days prior
to the commencement of the audit and shall specify the date on which the audit will commence. The
Company conducting an audit shall pay the costs of conducting such audit, unless the results of an
audit reasonably indicate an overpayment by the Company of 10% or more (such percentage to be
determined by reference to the Services which are subject to the specific audit), in which case
DISH shall pay the reasonable out-of-pocket costs of the Company.




ARTICLE VII




Independence; Ownership of Assets




          Section 7.1 Independence. All employees and representatives of a party hereto and any
of its Affiliates will be deemed for purposes of all compensation and employee benefits to be
employees or representatives of such party or its Affiliates (or its subcontractors) and not
employees or representatives of the other party hereto or any of the other party’s Affiliates. In
providing the Services, DISH’s employees and representatives will be under the direction, control
and supervision of DISH or its Affiliates (or its subcontractors), and not of the Company. DISH or
its Affiliates (or its subcontractors) will have the sole right to exercise all authority with
respect to the employment (including termination of employment), assignment and compensation of its
employees and representatives.




          Section 7.2 Ownership of Assets.




          (a) DISH Systems. The DISH Systems and any and all enhancements thereof or
improvements thereto are and shall remain the sole exclusive property of DISH, its Subsidiaries and
their suppliers, as the case may be. From and after the creation of any and all such DISH Systems
or enhancements thereof or improvements thereto by the Company or by any contractor, Affiliate or
other Third Party on the Company’s behalf, in each case, pursuant to this Agreement, the Company
shall cause to be assigned and hereby assigns to DISH or the applicable Subsidiary, any and all
right, title and




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interest that the Company or such contractor, Affiliate or Third Party may have in
such DISH Systems or enhancements thereof or improvements thereto.




          (b) Company Systems. The Company Systems and any and all enhancements thereof or
improvements thereto are and shall remain the sole exclusive property of the Company, its
Subsidiaries and their suppliers, as the case may be. From and after the creation of any and all
such Company Systems or enhancements thereof or improvements thereto by DISH or by any contractor,
Affiliate or other Third Party on DISH’s behalf, in each case, pursuant to this Agreement, DISH
shall cause to be assigned and hereby assigns to the Company or the applicable Subsidiary, any and
all right, title and interest that DISH or such contractor, Affiliate or Third Party may have in
such Company Systems or enhancements thereof or improvements thereto.




          (c) License. During the term of this Agreement, each party hereto grants to the other
party and such party’s respective suppliers a non-exclusive, royalty-free right and license to use
the
DISH Systems or the Company Systems, as applicable, solely to provide the Services or use the
Services contemplated hereunder. Notwithstanding anything to the contrary hereunder, each party
hereto agrees to cooperate with the other (and shall cause its suppliers to so cooperate) to cause
the orderly return of the other party’s Systems and property upon the termination of this Agreement
or upon written request, whichever is earlier.




          (d) Data Ownership. As between DISH and its Subsidiaries, on the one hand, and the
Company and its Subsidiaries, on the other hand, all right, title and interest in and to all data
processed hereunder shall be owned exclusively by DISH or its applicable Subsidiary or the Company
or its applicable Subsidiary that originally supplied it to the other. DISH and the Company hereby
assign to the other, and shall cause any of its or their contractors, Affiliates or suppliers to
assign to the other, as applicable, all right, title and interest that DISH or the Company, as
applicable, may have in the other’s data.




          (e) Third Party Suppliers. DISH shall have written agreements with its employees
consistent with past practices, and shall cause any contractor, Affiliate or Third Party performing
Services on its behalf pursuant to this Agreement to also have written agreements with its
employees that are consistent with its obligations hereunder, including the obligations to disclose
and assign all right, title and interest in intellectual property rights as contemplated in this
Section 7.2. DISH agrees not to voluntarily terminate or to amend or modify such
agreements with respect to the provisions described above without providing at least 30 days prior
written notice thereof and further agrees that any such amendments or modifications to such
agreements shall be prospective only.




          Section 7.3 Other Assets. Except as otherwise noted in Sections 7.1 and
7.2, all procedures, methods, systems, strategies, tools, equipment, facilities and other
resources used by a party hereto, any of its Affiliates or any Third Party service provider shall
remain the property of such party, its Affiliates or such service providers and, except as
otherwise provided herein, shall at all times be under the sole direction and control of such
party, its Affiliates or such Third Party service provider.




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ARTICLE VIII




Confidentiality




          Section 8.1 Confidentiality. Each party hereto agrees that the specific terms and
conditions of this Agreement and any information conveyed or otherwise received by or on behalf of
a party hereto in conjunction herewith are confidential and are subject to the terms of the
confidentiality provisions set forth in Section 4.5 of the Separation Agreement.




ARTICLE IX




No Agency Relationship




          Section 9.1 No Agency Relationship. DISH, in performance of this Agreement, is acting as an independent contractor to the
Company, and not as a partner, joint venturer or agent, nor do the parties hereto intend to create
by this Agreement an employer-employee relationship. Neither party hereto shall be bound by any
representation, act or omission of the other party hereto. Neither party hereto has any right,
power or authority to create any obligation, express or implied, on behalf of the other party
hereto.




ARTICLE X




Term and Termination




          Section 10.1 Term.




          (a) Term of Agreement. This Agreement shall commence on the Distribution Date and
shall end on the earliest of: (i) the date all Services have expired in accordance with the terms
of this Agreement; (ii) the date all Services have been terminated in accordance with the terms of
this Agreement; or (iii) the secondary anniversary of the Distribution Date.




          (b) Term of Services. DISH shall provide each Service beginning on the Distribution
Date, or as otherwise set forth in the Service Schedules or agreed to by the parties hereto in
writing and continuing for a period equal to the service term set forth in the “Service Term”
column of the Service Schedules, or as otherwise agreed to by the parties hereto in writing, unless
renewed or sooner terminated in accordance with the provisions of the Agreement. To the extent the
term for a specific Service is not provided in this Agreement or the Service Schedules, the term
for such Service shall be no longer than 2 years following the Distribution Date.




          Section 10.2 Termination.




          (a) Termination of Services. The Company may terminate its right to receive any
particular Service for any or no reason by providing DISH not less than 30 days prior written
notice (the “Termination Notice”) setting forth in reasonable detail the Services to be
terminated (the “Terminated Services”) and the termination date (the “Termination
Date”) for each Terminated Service that shall not be less than 30 days from the receipt of the
Termination Notice by DISH. Beginning on such Termination Date, the Company shall not be obligated
to pay any Fees in connection with such




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Terminated Services other than Fees owed by the Company to
DISH for such Terminated Services prior to the Termination Date. The Company shall, as soon as
practicable but no later than 10 Business Days after the Company realizes that a Service is no
longer required by the Company and to be provided pursuant to the Agreement, deliver a Termination
Notice with respect to such Service in accordance with Section 10.2(a).




          (b) Termination for Convenience. The Company may terminate this Agreement for any or
no reason by providing DISH not less than 60 days prior written notice setting forth the
termination date for this Agreement.




          (c) Termination for Breach. If a party hereto materially breaches any of its
obligations under this Agreement, and does not cure such default within 30 days after receiving
written notice thereof from the non-breaching party, then the non-breaching party may, at its
option, terminate any Service affected by such breach or this Agreement in its entirety by
providing written notice of termination to the breaching party, which termination shall be
effective immediately upon receipt of such termination notice.




          (d) Bankruptcy Termination. This Agreement may be terminated by either party hereto
upon at least 30 days prior written notice if the other party hereto is declared insolvent or
bankrupt, or makes an assignment for the benefit of creditors, or a receiver is appointed or any
proceeding is demanded by, for or against the other under any provision of the Federal Bankruptcy
Act. Any termination of this Agreement shall be without prejudice to any rights or obligations of
the parties hereto accruing prior to such termination including the right to payment of unpaid
amounts owing for services performed prior to termination.




          (e) Termination for Illegal Agreement. If there shall be any Applicable Law that
makes any or all of the transactions contemplated by this Agreement, illegal or otherwise
prohibited or if any order of any competent authority prohibiting such transactions is entered and
such order shall become final and non-appealable, then either party hereto may terminate any
Service affected by such Applicable Law or order by providing written notice of termination to the
other party hereto, which termination shall be effective immediately upon receipt of such
termination notice.




          Section 10.3 Procedures on Termination. Following any termination of this Agreement
in whole or in part, each party hereto will cooperate with the other party as reasonably necessary
to avoid disruption of the ordinary course of the other party’s and its Affiliates’ businesses.
Termination shall not affect any right to payment for Services provided prior to termination.




          Section 10.4 Effect of Termination. Sections 4.3 and Articles V and
VI (with respect to Fees and Taxes attributable to periods prior to termination),
7.2(a), 7.2(b), 7.2(d), 10.3, this Section 10.4 and
Articles VII, VIII, XI and XII shall survive any termination of
this Agreement. For the avoidance of doubt, termination of a particular Service hereunder shall be
a termination of this Agreement.




ARTICLE XI




Indemnification




          Section 11.1 Indemnification by the Company. The Company shall indemnify, defend and
hold harmless the DISH Indemnified Parties for any Losses and Expenses incurred by them in




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connection with or arising out of any (i) breach of this Agreement by the Company, its Affiliates
or employees and (ii) Third Party claims arising out of the provision of the DISH Services, except
to the extent that such third Person claims for Losses and Expenses are finally determined by a
final non-appealable decision of a court having jurisdiction over the Company and DISH to have
arisen out of the material breach of this Agreement, gross negligence,
bad faith or willful misconduct of DISH, its Affiliates, employees, suppliers or contractors
in providing the DISH Services.




          Section 11.2 Indemnification by DISH. DISH shall indemnify, defend and hold harmless
the Company Indemnified Parties for any Losses and Expenses incurred by them in connection with or
arising out of (i) any breach of this Agreement by DISH, its Affiliates, employees, suppliers or
contractors, (ii) any bodily injury or damage to property occasioned by the acts or omissions of
DISH, its Affiliates, employees, suppliers or contractors, (iii) DISH’s, its Affiliates’,
employees’, suppliers’ or contractors’ gross negligence, willful misconduct or bad faith in the
provision of the DISH Services by DISH, its Affiliates, employees, suppliers or contractors
pursuant to this Agreement, (iv) any Action that determines that the provision by DISH and/or the
receipt by the Company Indemnified Parties of any DISH Services infringes upon or misappropriates
the intellectual property of any Third Party to the extent that any such Losses and Expenses are
determined to have resulted from DISH’s, its Affiliates’, employees’, suppliers’ or contractors’
gross negligence, willful misconduct or bad faith, and (v) Third Party claims arising out of the
provision of the Company Services, except to the extent that such Losses and Expenses are finally
determined by a final non-appealable decision of a court having jurisdiction over DISH and the
Company to have arisen out of the material breach of this Agreement, gross negligence, bad faith or
willful misconduct of the Company, its Affiliates, employees, suppliers or contractors in providing
the Company Services.




          Section 11.3 Limitations and Liability. Each party hereto shall have a duty to
mitigate the Losses and Expenses for which the other is responsible hereunder. EXCEPT FOR CLAIMS
ARISING OUT OF OR RELATING TO ARTICLE VIII, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF REVENUES OR PROFITS), EXEMPLARY OR PUNITIVE
DAMAGES OR THE LIKE ARISING UNDER ANY LEGAL OR EQUITABLE THEORY OR ARISING UNDER OR IN CONNECTION
WITH THIS AGREEMENT (OR THE PROVISION OF SERVICES HEREUNDER), ALL OF WHICH ARE HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT ANY PARTY TO THIS AGREEMENT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.




          Section 11.4 Indemnification is Exclusive Remedy. The indemnification provisions of
this Article XI shall be the exclusive remedy for breach of this Agreement.




          Section 11.5 Risk Allocation. Each party hereto agrees that the Fees charged under
this Agreement reflect the allocation of risk between the parties hereto, including the limitations
on liability in Section 11.3. Modifying the allocation of risk from what is stated here
would affect the Fees that each party hereto charges, and in consideration of those Fees, each
party hereto agrees to the stated allocation of risk.




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          Section 11.6 Indemnification Procedures. All claims for indemnification pursuant to
this Article XI shall be made in accordance with the provisions set forth in Sections 5.3
and 5.4 of the Separation Agreement.




ARTICLE XII




Miscellaneous




          Section 12.1 Entire Agreement. This Agreement, including the Schedules hereto and the
sections of the Separation Agreement referenced herein, constitutes the entire agreement between
the parties hereto with respect to the subject matter contained herein, and supersedes all prior
agreements, negotiations, discussions, understandings, writings and commitments between the parties
hereto with respect to such subject matter.




          Section 12.2 Governing Law; Service of Process; Jurisdiction. This Agreement and the
legal relations between the parties hereto shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflict of laws rules thereof to the
extent such rules would require the application of the law of another jurisdiction. The state or
federal courts located within the City of New York shall have exclusive jurisdiction over any and
all disputes between the parties hereto, whether in law or equity, arising out of or relating to
this Agreement and the agreements, instruments and documents contemplated hereby and the parties
hereto consent to and agree to submit to the exclusive jurisdiction of such courts. Each of the
parties hereto hereby waives and agrees not to assert in any such dispute, to the fullest extent
permitted by Applicable Law, any claim that (i) such party is not personally subject to the
jurisdiction of such courts, (ii) such party and such party’s property is immune from any legal
process issued by such courts or (iii) any litigation or other proceeding commenced in such courts
is brought in an inconvenient forum. The parties hereto hereby agree that mailing of process or
other papers in connection with any such action or proceeding in the manner provided in Section
12.10, or in such other manner as may be permitted by Applicable Law, shall be valid and
sufficient service thereof and hereby waive any objections to service accomplished in the manner
herein provided.




          Section 12.3 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT.




          Section 12.4 Amendment. This Agreement shall not be amended, modified or supplemented
except by a written instrument signed by an authorized representative of each of DISH and the
Company.




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          Section 12.5 Waiver. Any term or provision of this Agreement may be waived, or the
time for its performance may be extended, by the party or the parties hereto entitled to the
benefit thereof. Any such waiver shall be validly and sufficiently given for the purposes of this
Agreement if, as to any party hereto, it is in writing signed by an authorized representative of
such party. The failure of any party hereto to enforce at any time any provision of this Agreement
shall not be construed to be a waiver of such provision, or in any way to affect the validity of
this Agreement or any part hereof or the right of any party hereto thereafter to enforce each and
every such provision. No waiver of any breach of this Agreement shall be held to constitute a
waiver of any other or subsequent breach.




          Section 12.6 Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance is determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions hereof or thereof, or the application of
such provision to Persons or circumstances or in jurisdictions other than those as to which it has
been held invalid or unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby or thereby, as the case may be, is not affected in any manner
adverse to any party hereto or thereto. Upon such determination, the parties hereto shall negotiate
in good faith in an effort to agree upon such a suitable and equitable provision to effect the
original intent of the parties hereto.




          Section 12.7 Execution in Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original instrument, but all of which shall be
considered one and the same agreement, and shall become binding when one or more counterparts have
been signed by and delivered to each of the parties hereto.




          Section 12.8 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and permitted assigns; provided,
however, that the rights and obligations of either party hereto under this Agreement shall
not be assignable by such party without the prior written consent of the other party. The
successors and permitted assigns hereunder shall include any permitted assignee as well as the
successors in interest to such permitted assignee (whether by merger, liquidation (including
successive mergers or liquidations) or otherwise).




          Section 12.9 Third Party Beneficiaries. Except to the extent otherwise provided in
Article XI, the provisions of this Agreement are solely for the benefit of the parties
hereto and their respective Affiliates, successors and permitted
assigns and shall not confer upon any third Person any remedy, claim, liability, reimbursement
or other right in excess of those existing without reference to this Agreement.




          Section 12.10 Notices. All notices or other communications under this Agreement shall
be in writing and shall be deemed to be duly given when delivered or mailed in accordance with the
terms of Section 9.12 of the Separation Agreement.




          Section 12.11 No Public Announcement. Neither DISH nor the Company shall, without the
approval of the other, make any press release or other public announcement concerning the
transactions contemplated by this Agreement, except as and to the extent that either party hereto
shall be so obligated by Applicable Law or the rules of any regulatory body, stock exchange or
quotation system, in which case the other party hereto shall be advised and the parties hereto
shall use commercially reasonable efforts to cause a mutually agreeable release or announcement to
be issued; provided,




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however, that the foregoing shall not preclude communications
or disclosures necessary to implement the provisions of this Agreement or to comply with Applicable
Law, accounting and SEC disclosure obligations or the rules of any stock exchange.




          Section 12.12 Limited Liability. Notwithstanding any other provision of this
Agreement, no individual who is a stockholder, director, employee, officer, agent or representative
of the Company or DISH, in its capacity as such, shall have any liability in respect of or relating
to the covenants or obligations of such party under this Agreement and, to the fullest extent
legally permissible, each of the Company and DISH, for itself and its respective stockholders,
directors, employees, officers and Affiliates, waives and agrees not to seek to assert or enforce
any such liability that any such Person otherwise might have pursuant to Applicable Law.




          Section 12.13 Divestiture. If the Company divests or sells all or a part of the
company during the term of this Agreement, DISH shall continue to provide the Services to the
divested or sold entity or part thereof until the termination or expiration of the provision of
Services hereunder, as long as the Seller’s obligations hereunder are not materially increased
thereby.




          Section 12.14 Mutual Drafting. This Agreement shall be deemed to be the joint work
product of DISH and the Company and any rule of construction that a document shall be interpreted
or construed against a drafter of such document shall not be applicable.




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          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their
authorized representatives as of the date first above written.




	 	 	 	 	 	 	 
	 	 	EchoStar Communications Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Echostar Holding Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Signature Page to Transition Services Agreement





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