Exhibit 10.1
BELL EXPRESSVU LIMITED PARTNERSHIP,
acting through its general partner,
Bell ExpressVu Inc.
-and-
ECHOSTAR CORPORATION
NIMIQ 5 TRANSPONDER SERVICE AGREEMENT
Dated as of March 11, 2008
NIMIQ 5 TRANSPONDER SERVICE AGREEMENT
This NIMIQ 5 TRANSPONDER SERVICE
AGREEMENT is made and entered into as of the 11th day of March,
2008 (the “ Effective Date ”), by and between
BELL EXPRESSVU LIMITED PARTNERSHIP (“ Bell ExpressVu
”), a limited partnership organized and existing under the
laws of the Province of Ontario with offices located at 100 Wynford
Drive, Suite 300, Toronto, Ontario M3C 4B4, Canada, acting
through its general partner, Bell ExpressVu Inc., on the one hand,
and ECHOSTAR CORPORATION (“ EchoStar ”), a
Nevada corporation with offices located at 90 Inverness Circle
East, Englewood, Colorado 80112, U.S.A., and DISH NETWORK
CORPORATION (“DISH Network”) (solely as to the
obligation set forth in Section 19.10 of this Agreement), a
Colorado corporation with offices located at 9601 South Meridian
Boulevard, Englewood, Colorado 80112, U.S.A., on the other
hand.
RECITALS :
WHEREAS , Bell ExpressVu has
entered into the Nimiq 5 Whole RF Channel Service Agreement (the
“ Nimiq 5 Agreement ”) with Telesat Canada
(“ Telesat ”), a corporation continued and
existing under the laws of Canada, pursuant to which Bell ExpressVu
is entitled to utilize the entire communications capacity
(including all spare capacity) on the BSS communications satellite
presently designated within Telesat as “Nimiq 5” (the
“ Satellite ” or “ Nimiq 5
Satellite ”), which is currently being manufactured by
*** (the “ Satellite Manufacturer ”), at the
Orbital Position throughout its operational life; and
WHEREAS, EchoStar desires to
subscribe for, and Bell ExpressVu desires to provide to EchoStar,
during the Term, all in accordance with, and subject to, the terms
and conditions set forth in this Agreement, the use of sixteen
(16) medium power Full Period whole BSS RF Channels ***;
NOW, THEREFORE , in
consideration of the foregoing premises and the mutual covenants
and agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, intending to be legally bound, Bell ExpressVu
and EchoStar hereby agree as follows:
1.
Definitions .
1.1
Certain Definitions . Capitalized terms used in this
Agreement (including the Recitals) and not otherwise defined herein
shall have the following meanings:
***
“
Access Requirements ” means the requirements to access
the Satellite as set forth in Attachment 2.
***
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
“
Affiliate ” means with respect to any Person, any
other Person directly or indirectly (a) controlling,
controlled by, or under common control with, such Person, or
(b) owning more than fifty percent (50%) of any class of
voting or equity securities of such Person. A Person shall be
deemed to control another Person if such Person possesses, directly
or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities or voting interests, by contract or
otherwise.
“
Agreement ” means this Nimiq 5 Transponder Service
Agreement and all attachments to it, which are hereby incorporated
by reference in their entirety; “hereof”,
“hereto”, “herein” and
“hereunder” and similar expressions mean and refer to
this Agreement and not to any particular Article, Section or
Attachment; “Article”, “Section” or
“Attachment” of this Agreement followed by a number
means and refers to the specified Article, Section or Attachment of
this Agreement. In the event of any conflict or inconsistency
between this Agreement and any Attachment to this Agreement, this
Agreement shall prevail.
***
“
Authorization ” means any authorization, order,
permit, approval, forbearance decision, grant, license, consent,
right, franchise, privilege or certificate of any Governmental
Entity of competent jurisdiction, whether or not having the force
of law.
“
Bell ExpressVu ” shall have the meaning ascribed
thereto in the introductory paragraph of this Agreement.
***
“
BSS ” means the Broadcasting-Satellite Service, as
defined by the Radio Regulations of the ITU.
“
Business Day ” means any day other than a Saturday,
Sunday or a day on which banking institutions in Colorado, U.S.A.
or Toronto, Ontario are required or authorized to be closed.
“
Channel ” means a path for signal transmission.
***
“
CONUS ” means the continental United States.
***
“
DBS ” means Direct Broadcast Satellite.
“
DBS Spectrum License ” means the Approval in Principle
granted on 17 December 2003 (as amended on 28
December 2006) by Industry Canada pursuant to the
***
Certain confidential portions of this exhibit were omitted by means
of redacting a portion of the text. Copies of the exhibit
containing the redacted portions have been filed separately with
the Securities and Exchange Commission subject to a request for
confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
3
Radiocommunication Act (Canada) and any Radio Authorizations
associated therewith which authorize Telesat to operate a direct
broadcast satellite at the Orbital Position.
“
Degradation ” means ***
“
Disclosing Party ” shall have the meaning ascribed
thereto in Section 17.1.
***
“
EchoStar ” shall have the meaning ascribed thereto in
the introductory paragraph of this Agreement.
“
EchoStar Channel Service ” means the use of an
individual medium power Full Period whole BSS RF Channel *** that
is provided to EchoStar on the Satellite pursuant to the terms of
this Agreement and “ EchoStar Channel Services ”
means the use of sixteen (16) medium power Full Period whole
BSS RF Channels *** that are provided to EchoStar on the Satellite
pursuant to the terms of this Agreement, as such aggregate number
of Full Period whole BSS RF Channels provided hereunder may be
adjusted pursuant to Sections 10.2, 13.2(c), and 13.4(b)
hereof.
***
“
Effective Date ” shall have the meaning ascribed
thereto in the introductory paragraph of this Agreement.
***
“
EOL ” means the permanent removal from service of the
Satellite.
***
“
FCC ” means the United States Federal Communications
Commission or any successor agency thereto, and includes a bureau
or other subdivision thereof acting under delegated
authority.
“
FCC Approval ” means the FCC authorization required
for EchoStar to ***
“
Force Majeure Event ” means ***
***
“
Frequency Coordination Limits ” means the coordination
status of the BSS frequencies at the Orbital Position (including
without limitation, the applicable power level operational
parameters) on the Effective Date (as the same may be amended,
restated,
***
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
supplemented or replaced from time to time in compliance with the
procedures set forth in Section 9.1 of this Agreement).
“
Full Period ” means twenty-four (24) hours per
day, seven (7) days per week.
“
Governmental Entity ” means any
(a) 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; (b) any subdivision,
agent, commission, board, or authority of any of the foregoing; or
(c) 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 thereto
in Article 5.
“
Intended Purpose ” means the use of the EchoStar
Channel Services at the Orbital Position to ***
“
Interruption ” means ***
“
Laws ” means all valid, duly enacted or promulgated
statutes, codes, ordinances, decrees, rules, regulations, municipal
by-laws, judicial or arbitral or administrative or ministerial or
departmental or regulatory judgments, orders, decisions, rulings or
awards, policies having the force of law or any provisions of the
foregoing, including general principles of common and civil law and
equity, binding on the Person referred to in the context in which
such word is used; and “ Law ” means any one of
foregoing.
***
“
MOA ” means the Memorandum of Agreement made and
effective as of March 11 , 2008 by and among Telesat,
EchoStar, DISH Network (solely as to the obligations set forth in
Sections H.10 and H.13(b) thereof), DISH Network L.L.C.
(solely as to the covenants and acknowledgements set forth in
Section H.13 thereof) and Bell ExpressVu.
***
“
Nimiq 5 Agreement ” shall have the meaning ascribed
thereto in the first recital of this Agreement.
“
Nimiq 5 Satellite ” shall have the meaning ascribed
thereto in the first recital 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.
5
“
Non-U.S. Authorizations ” means all Authorizations,
including without limitation the DBS Spectrum License, the Radio
Authorizations, and any and all other notifications, licenses,
permits, authorizations, approvals and consents of other Persons
(excluding United States Authorizations) now or hereafter required
for ***
“
Orbital Position ” means the geostationary orbital
position at 72.7º West Longitude.
“
Party ” means, individually, each of Bell ExpressVu
and EchoStar and “ Parties ” means,
collectively, EchoStar and Bell ExpressVu.
“
Performance Specifications ” means, in respect of each
EchoStar Channel Service, the performance specifications set forth
in Attachment 1 for operation in medium power mode or high power
mode, as applicable.
“
Person ” means an individual, partnership, limited
liability company, corporation, joint stock company, trust,
unincorporated association, joint venture or any other entity or
organization or Governmental Entity and pronouns have similarly
extended meaning.
***
“
Proprietary Information ” means all information that
is disclosed by either Bell ExpressVu or EchoStar, including any
technical specifications, system designs, data or material which
contains proprietary information and which is either:
(a) in
written form clearly labeled as “Proprietary”,
“Confidential” or similar designation; or
(b) if
disclosed orally, is identified as confidential at the time of oral
disclosure.
“
Radio Authorizations ” means all authorizations of the
Minister of Industry (Canada) pursuant to the Radiocommunication
Act (Canada) required to operate the Satellite at the Orbital
Position.
“
Receiving Party ” shall have the meaning ascribed
thereto in Section 17.1.
***
“
Required Authorizations ” means, with respect to each
Party, all Authorizations and other notifications, licenses,
permits, authorizations, approvals and consents of other Persons
required for such Party to consummate the transactions contemplated
by, and to perform its obligations under, 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.
6
“
RF Channel ” means an assigned portion of the Nimiq 5
Satellite total repeater Channel capacity that is capable of
receiving and re-transmitting Telecommunications Traffic.
“
Satellite ” shall have the meaning ascribed thereto in
the first recital of this Agreement.
***
“
Satellite Manufacturer ” shall have the meaning
ascribed thereto in the first recital of this Agreement.
***
“
Service Commencement Date ” means the date on which
Bell ExpressVu provides notice in writing to EchoStar that
***
“
Telesat ” shall have the meaning ascribed thereto in
the first recital of this Agreement.
“
Telecommunications Traffic ” means signs, signals,
writing, images, sounds or intelligence of any nature capable of
being received and retransmitted by the Satellite.
“
Term ” shall have the meaning ascribed thereto in
Article 5.
***
“
Treaty ” means (a) any applicable convention or
treaty (i) between the government of the United States of
America and the government of Canada, and (ii) for the
avoidance of double taxation and the prevention of fiscal evasion
with respect to taxes on income, and (b) any amendments,
regulations and protocols to such convention or treaty and
replacement thereof.
***
“
United States Authorizations ” means all
Authorizations, including without limitation FCC Approval, now or
hereafter required from United States Governmental Entities for
EchoStar to ***
1.2
Other Defined Terms; Interpretation . Other capitalized
terms used in this Agreement and not otherwise defined in
Section 1.1 shall have the meanings ascribed thereto elsewhere
in this Agreement. Unless otherwise indicated to the contrary
herein by the context or use thereof: (a) the word
“including” means “including but not limited
to”; (b) the masculine gender shall also include the
feminine and neutral genders, and vice versa; and (c) words
importing the singular shall also include the plural, and vice
versa.
***
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
2. Provision of
Service . In accordance with, and subject to, the terms and
conditions set forth in this Agreement, Bell ExpressVu hereby
agrees to provide to EchoStar the EchoStar Channel Services, on an
exclusive basis, during the Term (defined below) of this
Agreement.
3. Prices and
Payments .
***
4. Credits for
Interruptions .
4.1
Creditable Interruptions . Credits for Interruptions in the
EchoStar Channel Services provided to EchoStar under this Agreement
shall be granted in accordance with this Article 4. ***
5. Term of
Agreement . The term of this Agreement shall commence upon
the Effective Date hereof and shall expire on the fifteenth (15
th )
anniversary of the Service Commencement Date, unless earlier
terminated in accordance with the terms hereof (the “
Initial Term ”). Upon the expiration of the Initial
Term, and subject to issuance of a written notice from EchoStar to
Bell ExpressVu at least *** before the expiration of the Initial
Term, EchoStar shall be entitled to extend this Agreement on a
month to month basis until Satellite EOL (the Initial Term, plus
any such extended month to month term, the “ Term
”) on the same terms and conditions set out in this
Agreement.
6. Bell ExpressVu
Representations, Warranties and Covenants . Bell ExpressVu
hereby represents, warrants and covenants to EchoStar as
follows:
6.1
Organization . Bell ExpressVu is a limited partnership, duly
formed, validly existing and in good standing under the laws of the
Province of Ontario, 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 would have a material adverse effect on
its ability to perform its obligations hereunder.
6.2
Authority . Bell ExpressVu has all requisite corporate power
and authority to enter into this Agreement, to consummate the
transactions contemplated hereby and to perform all of its
obligations hereunder. This Agreement has been duly authorized,
executed and delivered by, and constitutes the valid and binding
obligation of, Bell ExpressVu, enforceable against Bell ExpressVu
in accordance with its terms.
6.3
No Conflict . Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, the performance of its obligations hereunder or the
compliance with the terms and conditions of this Agreement, by Bell
ExpressVu will conflict with, result in the breach of, constitute a
default under, accelerate the
***
Certain confidential portions of this exhibit were omitted by means
of redacting a portion of the text. Copies of the exhibit
containing the redacted portions have been filed separately with
the Securities and Exchange Commission subject to a request for
confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
8
performance required by, or require the further consent or approval
of any Person or Governmental Entity under: (a) the terms of
any material contract, instrument or commitment to which Bell
ExpressVu is a party or by which it is bound; (b) the
organizational or constating documents or bylaws of Bell ExpressVu;
or (c) any Law, judgment, order, writ, decree, permit, license
or agreement with any regulatory authority to which Bell ExpressVu
is a party or by which it is bound, other than ***
6.4
No Litigation . There is no judgment or order outstanding,
or any action, suit, claim, litigation, proceeding, arbitration,
investigation or controversy by or before any Governmental Entity
or arbitrator pending, or to the knowledge of Bell ExpressVu,
threatened to which Bell ExpressVu is or may become a party or by
which it is or may become bound that may adversely and materially
affect the ability of Bell
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