EXCLUSIVITY AMENDMENT TO THE
PRICING AGREEMENT
This Exclusivity
Amendment to the Pricing Agreement (the “Exclusivity
Amendment”) is entered into as of February 6, 2009 and
effective as of December 12, 2008 (“Exclusivity
Amendment Effective Date”), by and among EchoStar
Technologies L.L.C. (formerly known as EchoStar Technologies
Corporation, “EchoStar”), a limited liability company
organized under the laws of the State of Texas, having a place of
business at 90 Inverness Circle East, Englewood, Colorado 80112;
Bell ExpressVu Inc., in its capacity as General Partner of Bell
ExpressVu Limited Partnership (“Bell ExpressVu”), a
limited partnership organized under the laws of Ontario, having a
place of business at 100 Wynford Drive, Suite 300, Toronto,
Ontario M3C 4B4; Bell Distribution Inc. (“BDI”), a
corporation incorporated under the laws of Canada, having a place
of business at 5055 Satellite Drive, Mississauga, Ontario L4W 5K7;
and Bell Canada, a corporation incorporated under the laws of
Canada, having its registered office at Cote du Beaver Hall,
Montreal, Quebec, H2Z 1S4. For the purpose of this Agreement, the
term “Bell Parties” shall refer to Bell ExpressVu, BDI,
and Bell Canada.
Unless otherwise
defined herein, all capitalized terms used in this Exclusivity
Amendment shall have the meanings given to them in the Pricing
Agreement (as defined below).
WHEREAS, Bell
ExpressVu and EchoStar or their respective Affiliates have
previously entered into the following agreements with respect to
the supply of certain products and services by EchoStar to Bell
ExpressVu and its Affiliates: (a) the System Agreement;
(b) the Supply Agreement; (c) the MVC II Agreement;
(d) the Additional Limited Guarantee; and (e) the
Assignment and Assumption Agreement;
WHEREAS, pursuant
to the Pricing Agreement effective as of January 1, 2008 among
EchoStar, Bell ExpressVu, BDI and Bell Canada (the “Pricing
Agreement”), the parties agreed, among other things, to amend
and modify the System Agreement, the Supply Agreement, and the
Assignment and Assumption Agreement and to terminate (except solely
with respect to the Outstanding Obligations) the MVC II Agreement
and the Additional Limited Guarantee (in all cases as previously
amended to the date hereof and collectively, the “Predecessor
Agreements”); and
WHEREAS, subject
to the terms and conditions of the Pricing Agreement and the
Predecessor Agreements (as amended by this Exclusivity Amendment),
EchoStar is prepared to provide discounted rates on certain
EchoStar Products and Related Equipment in exchange for, among
other things, the agreement by the Bell Parties to purchase various
products exclusively from EchoStar;
NOW, THEREFORE, in
consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties mutually agree that the Pricing
Agreement and the Predecessor Agreements are hereby amended as
follows:
1.1 Except as
expressly set forth to the contrary in Section 1.3 of this
Exclusivity
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***
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Certain
confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing
the redacted portions have been filed separately with the
Securities and Exchange Commission subject to a request for
confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
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Amendment, the
Bell Parties hereby covenant and agree that at all times commencing
with the Exclusivity Amendment Effective Date and continuing
through and including *** (collectively, the “Exclusivity
Period”), EchoStar shall be the Sole and Exclusive Provider
(as defined below) of receiver/decoder units (commonly referred to
as set-top boxes) (“STBs”) for any DTH Service (as
defined in the System Agreement) but excluding *** offered,
provided, distributed or otherwise made available by the Bell
Parties, any of their Affiliates or any of their respective
successors or permitted assigns, ***
1.2 The Bell
Parties represent and warrant to EchoStar that, as of the
Exclusivity Amendment Effective Date, neither the Bell Parties nor
any of their Affiliates have entered into any agreement, extension
of an agreement, understanding or other arrangement that limits the
full performance of the Bell Parties’ obligations under this
Section 1. The Bell Parties covenant and agree that neither
the Bell Parties nor any of their Affiliates and their respective
successors and permitted assigns will enter into any such
agreement, extension of an agreement, understanding or other
arrangement at any time during the Exclusivity Period or Exclusive
Purchase Period, as applicable.
2. Supply
of EchoStar Products
2.1 Clause
(a) of Section 4.1 of the Pricing Agreement is hereby
deleted in its entirety and replaced with the following:
(a) receiver/decoder units described in the
attached Schedule 1 ; or the attached
Schedule 1A (subject to the provisions of
Section 4 of the Exclusivity Amendment to the Pricing
Agreement effective as of December 12, 2008 among EchoStar
Bell ExpressVu, BDI and Bell Canada (the “Exclusivity
Amendment”)) (collectively, “Boxes”);
2.2 The term
“DTH” shall be added between the words
“EchoStar” and “Products” *** as such words
appear in the first *** lines, respectively, of clause (d) of
Section 4.1 of the Pricing Agreement.
2.3 The last
sentence of Section 4.1 of the Pricing Agreement is hereby
deleted in its entirety and replaced with the following:
***
4. New Product Launches; *** .
4.2 The parties
intend, on a going forward basis, to transition all newly
manufactured Boxes to be shipped to Bell ExpressVu such that they
would no longer include the *** (the “Modified Boxes”).
Accordingly, the parties shall, on a model by model basis,
coordinate the timing by which such shipments of Modified Boxes
would commence. ***
4.3 For greater
certainty, the rights of Bell ExpressVu and BDI and their
respective successors and permitted assigns under Section 4.1
of the Pricing Agreement to purchase any of the Boxes
mention
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