ECHOSTAR 9 AGREEMENT – Amended and Restated

Exhibit 10.37

ECHOSTAR 9 AGREEMENT – Amended and Restated

This Amended and Restated Agreement is made and effective as of 16 November 2001 by and between Loral Skynet and Space Systems/Loral, regarding the EchoStar 9 Satellite Program and amends and restates that certain Agreement (“Agreement”) entered into as of February 22, 2000 (the “Effective Date of Contract” or “EDC”) by and between Space Systems/Loral, Inc., a corporation organized and existing under the laws of the State of Delaware, having a place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as “SS/L”) and Loral Skynet, a division of Loral SpaceCom Corporation, a corporation organized and existing under the laws of the State of Delaware, and having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as “Skynet”).

RECITALS

     Whereas, on February 22, 2000 SS/L entered into a contract with EchoStar Orbital Corporation (“EchoStar”), pursuant to which SS/L agreed to manufacture one (1) communications satellite, known as EchoStar 9 (the “Satellite”), to be delivered on-orbit, risk management therefor, and certain ground equipment and support and training services (the “Satellite Contract”);

     Whereas, the EchoStar 9 Satellite will include three payloads, including: a Ku-band payload, a Ka-band payload, and a C-band payload;

     Whereas, on February 22, 2000 Skynet entered into a contract with EchoStar (the “Condominium Contract”), pursuant to which, among other things, Skynet agreed to pay ***** of the ***** total purchase price of the Satellite Contract directly to SS/L in exchange for ownership of the C-Band payload and an undivided ownership interest in the common elements of the Satellite bus (collectively, the “Skynet Payload”);

     Whereas, SS/L and Skynet have conducted negotiations regarding SS/L’s construction of the Skynet Payload to Skynet’s design specifications, and have

agreed that Skynet’s purchase price therefor shall be changed to ***** and

     Whereas, SS/L and Skynet desire to amend the Agreement to recognize the price increase of ***** for incorporating changes to the C-band antenna pattern, as described in Exhibit B, Echo IX Performance Specification, dated October 18, 2000, and as agreed to in Amendment No. 1, dated 3 August 2001.

     Whereas, SS/L and Skynet desire to purchase three (3) Command Encryption Units in accordance with SS/L letter: 2001-ECHO-0322LZ, dated 21 August 2001 for a purchase price of *****. Skynet’s total purchase price is hereby changed to *****.

     Whereas, SS/L and Skynet now desire to enter into this Agreement in order to memorialize this change and to define their respective rights and obligations vis-a-vis each other with respect to the Satellite.

AGREEMENT

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, SS/L and Skynet hereby agree as follows:

SS/L hereby agrees that for each day that liquidated damages are owed by SS/L to EchoStar under Article 22 of the Satellite Contract, SS/L shall under the same terms and conditions, pay corresponding liquidated damages to Skynet (in an amount not to exceed ***** as specified below:

If the overall Satellite experiences an anomaly which will affect the use of one or more Ku/Ka-band Transponders and/or C-band Transponders, but not both, and a decision must be made as to which Transponder(s) shall be affected, then Skynet and EchoStar shall jointly make such decision in accordance with the terms and conditions of the Condominium Contract. If this situation arises, SS/L shall have no obligation to make payment under Section 4 of this Agreement, or to make a reduction in the In-Orbit Incentives, until such decision is jointly communicated to SS/L by Skynet and EchoStar. Skynet agrees and acknowledges that it may only claim a right to payment (or a reduction in the In Orbit Incentives) from SS/L for this type of an anomaly to the extent that the joint Skynet/EchoStar decision impacts Skynet’s C-Band payload.

Under this Agreement, Skynet may assert any cause(s) of action or defense(s) against SS/L based on Skynet’s C-Band payload and its proportionate share of the common elements of the Satellite as if Skynet were a party to the Satellite Contract and as if the relevant terms and conditions in the Satellite Contract specifically mentioned Skynet and/or the C-band payload; Skynet may assert such cause(s) of action and/or defense(s) independently, without regard to any action or inaction taken by EchoStar with respect to any similar cause(s) of action and/or defense(s) it may have against SS/L.

SS/L and Skynet agree to treat the Proprietary Information of the other party pursuant to the terms and conditions set forth in Article 35 of the Satellite Contract.

Contractor and Skynet agree that any dispute arising between them hereunder will be settled pursuant to the terms and conditions of Article 25 of the Satellite Contract.

Each party’s liability to the other under this Agreement shall be governed by the limitations provided in Article 34 of the Satellite Contract, with the following changes: (i) the term ‘Contractor’ shall refer to SS/L and the term ‘Purchaser” shall refer to Skynet, and (ii) notwithstanding anything to the contrary in such Article 34, the total liability of either party shall be limited to an amount equal to the Firm Fixed Price of this Agreement.

Any notice or communication required or permitted under this Agreement shall be in writing and sent to the address set forth for each party in the Preamble hereto in compliance with Article 38 of the Satellite Contract.

This Agreement: (a) is the complete agreement of the parties concerning the subject matter hereof and supersedes any prior such agreements; (b) may not be amended or in any manner modified except in writing signed by the parties; and (c) shall be governed by and construed in accordance with the laws of the State of New York without regard to its choice of law provisions. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties as expressed herein.

IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date set forth above.

[Attachment A: Baseline Performance Specification; Attachment B: Payment Plan (including orbital information), Amendment #2 ]

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AMENDMENT NUMBER 1
TO
ECHOSTAR 9/TELSTAR 13 AMENDED AND RESTATED AGREEMENT

This Amendment Number 1 (the “Amendment”) to the Amended and Restated Agreement (the “Agreement”), effective as of 7 July 2003, is made by and between Loral Skynet, a division of Loral SpaceCom Corporation, a corporation organized and existing under the laws of the State of Delaware and having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as “Skynet”) and Space Systems/Loral, Inc. a corporation organized and existing under the laws of the State of Delaware and having a place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as “SS/L”) regarding the EchoStar 9/Telstar 13 Satellite Program and amends that certain Amended and Restated Agreement entered into between SS/L and Skynet as of 16 November 2001, which amended and restated that certain Agreement (“Original Agreement”) entered into between SS/L and Skynet as of February 22, 2000 (the “Effective Date of Contract” or “EDC”).

RECITALS

WHEREAS, on February 22, 2000, SS/L and EchoStar Orbital Corporation entered into a contract pursuant to which SS/L agreed to manufacture one (1) communications satellite, known as EchoStar 9 (the “Satellite’’), to be delivered on-orbit, risk management therefor, and certain ground equipment and support and training services (the “Original Satellite Contract”).

WHEREAS, on February 22, 2000, Skynet and EchoStar Orbital Corporation entered into an agreement (the “Original Condosat Agreement”), pursuant to which, among other things, Skynet agreed to pay a portion of the total purchase price of the Original Satellite Contract directly to SS/L in exchange for ownership of the C-Band payload and an undivided ownership interest in the common elements of the Satellite bus (collectively, the “Skynet Payload”);

WHEREAS, on February 22, 2000, SS/L and Skynet entered into the Original Agreement setting forth the respective rights and obligations between SS/L and Skynet as contemplated by the Original Condosat Agreement:

WHEREAS, on 1 July 2003, SS/L and EchoStar Orbital Corporation II (successor to EchoStar Orbital Corporation, and hereinafter referred to as “EchoStar”) entered into an Amended and Restated Contract (the “Satellite Contract”), amending and restating the Original Satellite Contract to modify the Satellite delivery, price, and other terms and conditions of the Original Satellite Contract, including converting to an on ground Satellite delivery obligation, with risk of total or partial loss or damage of the satellite transferred to EchoStar and Skynet, as appropriate, at Launch (except for certain orbital performance incentive obligations), with any and all Launch and post launch insurance to be provided by SS/L as an option on a pass thru basis;

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WHEREAS, on July 7, 2003, Skynet and EchoStar entered into an Amended and Restated Agreement (the “Condosat Agreement”) amending and restating the Original Condosat Agreement to reflect the modifications made to the Original Satellite Contract by the Satellite Contract:

WHEREAS, SS/L and Skynet now desire to enter into this Amendment Number 1 in order to amend the Agreement so as to conform and reflect the necessary and appropriate modifications based on the changes effected by the Satellite Contract and the CondoSat Agreement;

AGREEMENT

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, SS/L and Skynet hereby agree as follows:

Except as otherwise set forth herein, all defined terms used or referenced, either directly or indirectly, in this Agreement shall have the same meaning as in the Satellite Contract; provided, however, that whenever applicable and appropriate, Satellite Contract definitions limited in their scope to the Ka-band and/or Ku-band payload shall instead include the C-band payload.

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SS/L hereby agrees that for each day that liquidated damages are owed by SS/L to EchoStar under Article 22 of the Satellite Contract, SS/L shall, under the same terms and conditions, pay liquidated damages to Skynet, as its sole remedy in the event of delays in delivery (in an amount not to exceed ***** as specified below:

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If the overall Satellite experiences an anomaly which will affect the use of one or more Ku/Ka-Band Transponders and/or C-Band Transponders, but not both, and a decision must be made as to which Transponder(s) shall be affected, then Skynet and EchoStar shall jointly make such decision in accordance with the terms and conditions of the Condominium Contract. If this situation arises, SS/L shall have no obligation to make payment under Article 5 of this Agreement, or to make a reduction in the In Orbit Incentives, until such decision is jointly communicated to SS/L by Skynet and EchoStar. Skynet agrees and acknowledges that it may only claim a right to payment (or a reduction in the In Orbit Incentives) from SS/L for this type of anomaly to the extent that the joint Skynet/EchoStar decision impacts Skynet’s C-Band payload.

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Under this Agreement, Skynet may assert any causes(s) of action or defenses(s) against SS/L based on Skynet’s C-Band Payload and its proportionate share of the common elements of the Satellite as if Skynet were a party to the Satellite Contract and as if the relevant terms and conditions in the Satellite Contract specifically mentioned Skynet and/or the C-Band Payload; Skynet may assert such causes(s) of action and/or defense(s) independently, without regard to any action or inaction taken by EchoStar with respect to any similar cause(s) of action and/or defense(s) it may have against SS/L.

SS/L and Skynet agree to treat Proprietary Information of the other party pursuant to the terms and conditions set forth in Article 35 of the Satellite Contract.

Contractor and Skynet agree that any dispute arising between them hereunder will be settled pursuant to the terms and conditions of Article 25 of the Satellite Contract.

Each party’s liability to the other under this Agreement shall be governed by the limitations provided in Article 34 of the Satellite Contract, with the following changes: (i) the term, “Contractor” shall refer to SS/L and the term “Purchaser” shall refer to Skynet, and (ii) notwithstanding anything to the contrary in such Article 34, the total liability of either party shall be limited to an amount equal to the Firm Fixed Price of this Agreement.

Any notice or communication required or permitted under this Agreement shall be in writing and sent to the address set forth for each party in the Preamble hereto in compliance with Article 38 of the Satellite Contract.

This Amendment Number 1 to the Agreement: (a) is the complete agreement of the parties concerning the subject matter hereof and supersedes any prior such agreements; (b) may not be amended or in any manner modified except in writing signed by the parties; and (c) shall be governed by and construed in accordance with the laws of the State of New York, without regard to its choice of laws provisions. If any provisions of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provisions shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties as expressed herein.

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IN WITNESS WHEREOF, the parties have entered into this Amendment Number 1 to the Agreement effective as of the date set forth above.

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