**Exhibit 10.22**

** **

**DIRECTVMDU SYSTEM OPERATOR AGREEMENT**

 

This DIRECTV MDU System Operator Agreement (“Agreement”)is made and entered into as of this         day of September, 2003 (“ExecutionDate”), between DIRECTV, Inc., a California corporation (“DIRECTV”),and MDU Communications (USA) Inc., a Delaware corporation (“System Operator”).

 

# RECITALS

 

A.                                   DIRECTVoperates a direct broadcast satellite (“DBS”) service through whichsubscribers are able to receive video, audio, data and other programmingdistributed by DIRECTV via a direct broadcast satellite system.

 

B.                                     SystemOperator distributes television programming and services to residentialmultiple dwelling units (“MDUs”).

 

C.                                     DIRECTVand System Operator desire to establish a business relationship whereby SystemOperator will (i) establish and maintain in certain MDU Properties, SignalDistribution Systems to enable MDU residents to receive DIRECTV Programming viasuch Systems, and (ii) act as a commissioned sales representative for DIRECTVto solicit and take orders for DIRECTV Commissionable Programming Packages fromresidents of MDU Properties, according to this Agreement and the Terms andConditions attached hereto as ***Exhibit A***.

 

ARTICLE IDEFINITIONS

 

1.1                                 Thefollowing capitalized terms shall have the meanings assigned them.  Certain other capitalized terms shall havethe meanings given them elsewhere in this Agreement.

 

“Commission(s)” shall have the meaning assignedsuch term in Section 2.5 hereof.

 

“Commissionable Programming Packages” shallmean the DIRECTV Programming Packages on ***Exhibit B*** attached hereto, for which System Operatoris authorized to solicit orders on behalf of DIRECTV, and System Operator isentitled to a Commission thereon.

 

“Components” shall mean such equipment, whetherpre-existing or newly installed within the MDU Property which is used to createthe Signal Distribution System, including, but not limited to, a satellitereceiving dish, cables, splitters, taps, connectors, filters, amplifiers,switches, wiring and any other materials or equipment.

 

“DIRECTV Programming” shall mean thoseprogramming services distributed by DIRECTV, including, but not limited toCommissionable Programming Packages, which services and the prices thereforshall be provided to System Operator by DIRECTV, from time to time.

 

“DIRECTV Receiver” shall mean the integratedreceiver and decoder unit (IRD) necessary to receive DIRECTV Programming whichis manufactured by a DIRECTV authorized manufacturer.

 

“Independent SO Subscriber” shall mean aDIRECTV subscriber who currently resides in an SO Property whose originalDIRECTV Programming order was submitted (i) directly by the subscriber toDIRECTV or (ii) by an entity other than System Operator.

 

“MDU Property” shall mean a condominiumcomplex, apartment building (including both rental and cooperative apartments),or townhouse community, located in the contiguous United States, comprised ofmultiple dwelling units, which units in each case are occupied by single familyhouseholds and are not generally accessible to the public or otherwise a commonarea to which there is unrestricted access by two or more persons, and whichunits may receive DIRECTV Programming from a common receiving dish and separateDIRECTV Receivers in each individual dwelling unit.

 

“Net Receipts” shall mean gross receiptsactually received by DIRECTV from the sale of Commissionable ProgrammingPackages during the Term, net of any discounts, refunds, fees, credits, taxesor applicable governmental charges (other than income or franchise taxes)related to the sale, order or use of such Commissionable Programming Packages.

 

----

*** signifies redactedconfidential information

 

----

 

“NRTC Area” shall mean those areas in whichDIRECTV has granted the National Rural Telecommunications Cooperative distributionrights and which, as of the Execution Date, are identified on the map attachedhereto as ***Exhibit C***,which may be amended from time to time by DIRECTV.

 

“Previous SO Subscriber” shall mean a DIRECTVsubscriber who was previously an SO Subscriber who no longer resides in an MDUProperty and who obtained his or her DIRECTV Receiver from System Operatorunder terms and condition as established by DIRECTV, and whose order for aCommissionable Programming Package at a new residence is submitted and acceptedby DIRECTV solely through the DIRECTV Movers Connectionäprogram.

 

“Right of Entry” shall mean that certainwritten agreement between System Operator and the owner or manager of an MDUProperty or, in the case of a cooperative apartment complex, the homeowners’association, which authorizes System Operator to install and maintain theSignal Distribution System in such MDU Property and solicit orders forCommissionable Programming Packages therein.

 

“Signal Distribution System” shall mean theintegrated signal delivery system including the receiving dish and DIRECTVReceiver and any necessary Components by which DIRECTV Programming isdistributed throughout an SO Property, which may also include off-air and/orcable distribution systems.

 

“SO Property” shall mean any of the MDUProperties for which System Operator has obtained and continues to maintainthroughout the term of the Agreement a valid Right of Entry and (i) in whichSystem Operator has installed or maintains a Signal Distribution System, (ii) theinitial orders from residents of such property for DIRECTV Programming aresubmitted by System Operator and transmitted to DIRECTV by System Operator inaccordance with the terms of this Agreement, (iii) is not located in an NRTCArea, and (iv) all units in such property are capable of receiving DIRECTVProgramming within five (5) business days of ordering such programming.

 

“SO Subscriber” shall mean a DIRECTV subscriberresiding in an SO Property, who receives one of the Commissionable ProgrammingPackages through the Signal Distribution System, the initial order for whichwas submitted by System Operator and who was not a DIRECTV subscriber prior tobecoming an SO Subscriber.

 

“Technical Specifications” shall mean therequirements in ***Exhibit D***attached hereto or any other document(s) supplied by DIRECTV to System Operatorduring the Term, which specify the minimum parameters any and all SignalDistribution Systems must meet under this Agreement.

 

“Term” shall have the meaning assigned suchterm in Section 3.1 hereof.

 

ARTICLE IIGENERAL RIGHTS AND OBLIGATIONS

 

2.1                                 Solicitationof DIRECTV Programming Services.

 

(a)                                  Subjectto the Terms and Conditions attached hereto as ***Exhibit A***, DIRECTV hereby grants toSystem Operator the right to (i) market DIRECTV Programming to SO Propertiesand (ii) solicit and take orders for DIRECTV Programming from residents of SOProperties.

 

(b)                                 Nothingin this Agreement shall prevent DIRECTV (or those DIRECTV’s agents that are notsystem operators) from marketing, soliciting and taking orders from residentsof MDU Properties.

 

(c)                                  SystemOperator understands that it shall not have any right, unless specificallyprovided by DIRECTV under separate written agreement, to: (i) solicit or takeorders for DIRECTV Programming from any person or entity that is not a residentof an MDU Property, including, without limitation, commercial establishments,as such may be defined by DIRECTV in its reasonable discretion; or (ii) use anyperson or entity other than its employees in soliciting or taking orders forDIRECTV Programming without the prior written consent of DIRECTV.

 

(d)                                 DIRECTVreserves the right to [ *** redacted ***] shall be as provided by DIRECTV toSystem Operator upon request.

 

2

----

 

(e)                                  SystemOperator shall not [ *** redacted ***] with respect to the installation andmaintenance of the Signal Distribution System.

 

(f)                                    Onlyafter receiving, approving and accepting an order from System Operator shallDIRECTV be obligated to establish a customer account for the subscriber andarrange for activation of DIRECTV Programming. DIRECTV shall not be obligated to pay System Operator any Commission orany other amounts for incomplete order(s), regardless of whether DIRECTVultimately provides any DIRECTV Programming to the customer(s) to which suchorder(s) pertained and regardless of whether DIRECTV receives any payments asconsideration for such DIRECTV Programming, unless and until DIRECTV receivesthe Subscriber Information and, then, only for periods of time following suchreceipt by DIRECTV.  DIRECTV shallpromptly notify System Operator of any deficiencies with respect to particularsubscriber information. “Subscriber Information” shall mean that customeridentification, location, and billing information which DIRECTV requires, asdescribed in the DIRECTV System Operator Policy Manual.

 

2.2                                 SOProperties; Right of Entry.  Priorto any solicitation of orders for DIRECTV Programming by System Operators,System Operator shall submit to DIRECTV the complete address (including countyand zip code) of any MDU Property for which System Operator has or is seeking aRight of Entry, in order to confirm that (i) such MDU Property is not alreadybeing serviced by another system operator authorized by DIRECTV and (ii) suchMDU Property is not located in an NRTC Area.  System Operator shall obtain and continuously maintain a valid Right ofEntry for such property during the Term, granting  System Operator access to the MDU, authorizing System Operator toinstall and maintain the Signal Distribution System and Components, andgranting System Operator permission to solicit orders for DIRECTV Programmingfrom MDU residents.  System Operatorshall promptly forward to DIRECTV a fully executed Right of Entry for all SOProperties.  In no event shall SystemOperator install a Signal Distribution System in any MDU for which neitherSystem Operator has not obtained a valid Right of Entry and no compensationshall be paid or reimbursed by DIRECTV to System Operator for any DIRECTVProgramming sold to subscribers in a MDU property unless and until DIRECTV hasreceived a copy of the applicable Right of Entry for such property.  System Operator shall provide written noticeto DIRECTV within ten (10) days of any loss, suspension, or expiration of aRight of Entry.

 

2.3                                 Collectionand Administration of Annual Programming Commitment Agreements.  For each and every SO Subscriber who agreesto activate and maintain a Commissionable Programming Package for one year,System Operator shall perform the following:

 

(a)                            Explainthe general terms and conditions of the “Annual Programming CommitmentAgreement” required by DIRECTV as described in [*** redacted ***] attachedhereto and in other materials provided by DIRECTV from time to time;

 

(b)                           Causethe customer to complete and execute the Annual Programming CommitmentAgreement;

 

(c)                            Verify,validate and certify the accuracy of the information provided by the customerin the Annual Programming Commitment Agreement;

 

(d)                           Completethe dealer portion of the Annual Programming Commitment Agreement;

 

(e)                            Providea completed and executed copy of the Annual Programming Commitment Agreement tothe customer;

 

(f)                              Whensubmitting an order for a DIRECTV Programming Package for such customer inaccordance with this Agreement, indicate and notify DIRECTV, in accordance withthe procedures prescribed by DIRECTV, that a customer has executed and agreedto the Annual Programming Commitment Agreement; and

 

(g)                           Uponrequest by DIRECTV, provide the completed copy of the Annual ProgrammingCommitment Agreement.

 

2.4.                              Implementationof Signal Distribution System.

 

(a)                                  Installationof Signal Distribution System and Components.

 

(i)                                     SystemOperator shall design, develop, install, and maintain, a Signal DistributionSystem for each SO Property which must comply with the DIRECTV TechnicalSpecifications as provided by DIRECTV to

 

3

----

 

System Operator, thecurrent version of which is set forth in ***Exhibit D*** attached hereto.  DIRECTV reserves the right, in its sole discretion, to amend orrevise and reissue the Technical Specifications, which amendments or revisionsshall be promptly communicated by DIRECTV to System Operator.  Upon any such amendment or revision by DIRECTVto the Technical Specifications, DIRECTV and System Operator shall discuss ingood faith the extent to which existing Signal Distribution Systems in SOProperties shall comply with such amended or revised Technical Specifications,it being understood and agreed by the parties that any and all uncompletedSignal Distribution Systems in SO Properties must comply with such revised oramended Technical Specifications.

 

(ii)                                  SystemOperator shall maintain a design for the installation and integration of eachSignal Distribution System (“Design”) for each SO Property subject tothis Agreement, together with a time schedule for installation.  In creating, installing and maintaining anySignal Distribution System, System Operator shall comply with all DIRECTVSystem equipment manufacturers’ or Component manufacturers’ policies as may bein effect from time to time.  DIRECTVshall provide to System Operator written notice as soon as commerciallypracticable after receipt and review of Design(s) if DIRECTV reasonablybelieves that any Design will not produce a Signal Distribution System meetingthe Technical Specifications.  SystemOperator shall provide installation progress reports to DIRECTV periodically oras DIRECTV may reasonably request, and shall promptly notify DIRECTV of anymaterial changes to the installation schedule or Design.

 

(iii)                               Upon completion ofinstallation, System Operator shall promptly forward to DIRECTV, upon itsrequest, an updated copy of the Design and completed Technical Registration Form,included in the Technical Specifications attached hereto as ***Exhibit D***, whichshall include, among other things, various measurements of the signal from theSignal Distribution System.  DIRECTVshall provide to System Operator written notice as soon as commerciallypracticable after receipt and review of the Technical Registration Form ifDIRECTV reasonably believes that such Technical Registration Form indicatesthat the Signal Distribution System does not meet the Technical Specifications,and where possible, DIRECTV shall recommend corrective actions.  Unless and until the Signal DistributionSystem complies with the Technical Specifications, such MDU Property shall notbe considered an SO Property.

 

(b)                                 TechnicalCompliance.  System Operator shall, atits own cost and expense, (i) contract with an authorized DIRECTV Systemmanufacturer(s) to obtain DIRECTV System equipment and integrate such equipmentwith any necessary Components to create the Signal Distribution System, (ii)evaluate and test the Signal Distribution System to insure compliance with theTechnical Specifications for each unit in the SO Property, (iii) selectComponents that will ensure that the Signal Distribution System meets theDIRECTV Technical Specifications in the MDU Property environment and will allowSystem Operator to fulfill its obligations under this Agreement, (iv) developsuch additional hardware or other elements as are necessary for the SignalDistribution System to meet the Technical Specifications and allow System Operatorto fulfill its obligations under this Agreement, (v) provide such technicaldemonstrations of the Signal Distribution System in any SO Property as DIRECTVmay require in its reasonable discretion upon advance written notice to SystemOperator, at such times mutually agreed upon by the parties, to provideassurance that the Signal Distribution System will meet the DIRECTV Technical Specifications (“TechnicalDemonstration”), and provide DIRECTV the opportunity to participate andprovide input in advance of completion of the Signal Distribution System ordistribution of DIRECTV Programming via the Signal Distribution System, (vi) inconnection with such Technical Demonstration, make such changes to the initialSignal Distribution  System as arenecessary in order for the system to meet the DIRECTV Technical Specifications,and (vii) take all commercially reasonable actions necessary to ensure that theSignal Distribution System continues to meet the Technical Specifications forthe Term of this Agreement.  If at anytime during the Term of this Agreement, DIRECTV determines in good faith that aSignal Distribution System is not in strict compliance with all or any portionof the Technical Specifications, and such noncompliance interferes with SOSubscribers’ ability to receive DIRECTV Programming of a quality received byother DIRECTV subscribers (i.e., the signal does not meet themeasurement standards), System Operator shall cure such noncompliance [ ***redacted ***] of DIRECTV’s notice of noncompliance (the “Cure Period”),and provide DIRECTV evidence of correction of such noncompliance, whichevidence may, at DIRECTV’s request, include a Technical Demonstration.  In the event such evidence is not approvedby DIRECTV within the Cure Period, DIRECTV shall have the right to cease payingCommissions due to System Operator with respect to SO Subscribers in thenoncomplying SO Property.

 

(c)                                  Provisionof Signal Distribution System. System Operator shall, at its sole cost: (i) acquire and supply SignalDistribution Systems to SO Properties; (ii) install at a commerciallyreasonable price and in a timely manner the Signal Distribution System and anynecessary Components which System Operator supplies to any SO Property; (iii)maintain at commercially reasonable prices the Signal Distribution System forany SO Properties; and (iv) provide, at a commercially reasonable price and ina manner satisfactory to DIRECTV, customer service to all SO Properties,subscribers and potential subscribers related to the supply, installation andmaintenance of the Signal Distribution System.

 

4

----

 

(d)                                 Disclaimerof Warranties.  SYSTEM OPERATORUNDERSTANDS AND AGREES THAT DIRECTV SHALL HAVE NO RESPONSIBILITY WHATSOEVER FORANY SIGNAL DISTRIBUTION SYSTEM, INCLUDING THE DIRECTV RECEIVER AND COMPONENTSCONTAINED THEREIN.  DIRECTV HEREBYDISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, IN CONNECTION WITH ANY SIGNALDISTRIBUTION SYSTEM, INCLUDING THE DSS RECEIVER AND COMPONENTS CONTAINED THEREIN,THE INSTALLATION AND FUNCTIONING OF SUCH SYSTEM IN ANY MDU PROPERTY, INCLUDING,WITHOUT LIMITATION, ANY WARRANTIES UNDER THE UNIFORM COMMERCIAL CODE OROTHERWISE IMPLIED IN LAW.

 

(e)                                  NewTechnology; End-Use Testing. DIRECTV makes no representation or warranty as to how any commerciallyavailable Components will perform with the DIRECTV System in any particular MDUProperty or how the DIRECTV System itself will perform in certain MDUenvironments.  System Operators shall bejointly and severally responsible for procuring and testing any and allComponents in the end-use environment prior to the design, development andinstallation of the Signal Distribution System and for maintenance of any suchComponents that fail to perform adequately in the end-use environment in orderthat the Signal Distribution System will, at all times during the Term of thisAgreement, meet or exceed the Technical Specifications.  Any failure of the Signal DistributionSystem to meet the Technical Specifications shall be the responsibility ofSystem Operator, and System Operator agrees to indemnify and hold DIRECTVharmless from any and all Claims (as such term is defined in theIndemnification section of the Terms and Conditions attached hereto as ***Exhibit A***) fromSO Subscribers arising from the failure of the Signal Distribution System todeliver the necessary signal to such subscribers and from failure of the SignalDistribution System to meet the Technical Specifications.

 

2.5                                 Commissionand Payment Structure.  Thefollowing sets forth all payments and commissions to be made to System Operatoras full consideration for its fulfilling its obligations hereunder.

 

(a)                                  Paymentof Prepaid Programming Commissions.

 

(i)                                     PremierStatus.

 

[ *** redacted ***]

 

(ii)                                  StandardStatus.

 

[ *** redacted ***]

 

(b)                                 Paymentof Residual Commissions.  During theTerm of this Agreement, DIRECTV will pay System Operator a monthly continuingservice fees (the “Continuing Service Fees”) equal to

 

[ *** redacted ***]

 

(c)                                  PaymentTerms.** **DIRECTV shall pay System Operatorthe

 

[ *** redacted ***]

 

(d)                                 CommissionExclusion.

 

[ *** redacted ***]

 

(e)                                  PremierStatus.

 

[ *** redacted ***]

(f)                                    ChurnRate.

 

[ *** redacted ***]

 

(g)                                 Notice.

[ *** redacted ***]

 

5

----

 

(h)                                 AnnualPlan.

[ *** redacted ***]

 

2.6                                 DIRECTVProgramming.

 

(a)                                  [*** redacted ***]    System Operatoragrees that all DIRECTV Programming (including any commercial insertion) shallbe exhibited in its entirety, in original form, as provided by DIRECTV, withoutany modifications, additions or deletions. In no event shall System Operator repackage any other programming orservices with DIRECTV Programming.  [*** redacted ***]

 

(b)                                 SystemOperator shall not  [ *** redacted ***]

 

2.7                                 Exclusivity.  [ *** redacted ***]

 

2.8                                 CustomerService.  System Operator shallundertake certain customer service functions as described herein and in theDIRECTV System Operator Policies and Procedures Manual as defined herein belowto all SO Subscribers and Independent SO Subscribers with respect to theinstallation and maintenance of the Signal Distribution System and acceptanceand transmission of orders for DIRECTV Programming. System Operator agrees toprovide the same level of installation and maintenance support for theIndependent SO Subscribers.

 

2.9                                 Policiesand Procedures.  System Operatorshall comply with the standard policies and procedures DIRECTV may promulgatefor its MDU system operators in written notices, guidelines, and bulletins, asthe same may be amended from time to time (collectively, the “Policies”).  The Policies shall be an integral part ofthis Agreement but may not impair any of System Operator’s rights grantedherein.  As DIRECTV’s commissioned salesrepresentative, System Operator hereby agrees that it will follow and abide bythe policies and procedures related to soliciting and transmitting subscriptionorders for and the promotion of DIRECTV Programming as specified in thePolicies.

 

2.10                           AdditionalObligations of System Operator.

 

(a)                                  Mover’sProgram.  System Operator agrees toparticipate in DIRECTV’s Mover’s Program as prescribed by DIRECTV.  In the event that an SO Subscriber desiresto move to a single family dwelling and desires to maintain his/her DIRECTVProgramming, System Operator agrees to provide such SO Subscriber with oneDIRECTV Receiver (including the conditional access card therefor) used by suchSO Subscriber without any cost to him/her for use at the new single familydwelling.

 

(b)                                 TransportFee.  System Operator agrees to cancelall transport fee waivers currently in effect.

 

(c)                                  MonthlyReport.  System Operator agrees toprovide a monthly performance report in a manner and format as mutually agreedto by the parties.  Such report shall,at a minimum, indicate the number of SO Subscribers procured by SystemOperator, the disconnect or the churn rate of the SO Subscribers procured bySystem Operator and the penetration rate of SO Subscribers at each SO Property.

 

(d)                                 Transferof SO Property.  In the event thatSystem Operator desires to transfer its interest in an SO Property to anothersystem operator of DIRECTV, in addition to other requirements as required byDIRECTV for a given transfer, System Operator agrees to [ *** redacted ***] todefray the administrative cost incurred by DIRECTV to effectuate such transferin its records.

 

# ARTICLE IIITERM AND TERMINATION

 

3.1                                 Termand Termination.  Unless earlierterminated in accordance with this Agreement, the term of this Agreement(“Term”) shall commence on the Execution Date and continue for a period of  three (3) years.  This Agreement shall automatically renew for an additional  2 year period (the “Initial Renewal Period”) if and only if SystemOperator [ *** redacted ***]    Inaddition to other termination rights provided in this Agreement, either partymay terminate this Agreement, effective immediately (i) upon [ *** redacted***]    notice to the other partyfollowing a material breach of this Agreement by the other party and the breachingparty has failed to cure such breach within the said [ *** redacted ***]

 

6

----

 

period, and theterminating party may suspend its performance during such period; provided,however, DIRECTV shall not cease providing programming or customer serviceto SO Subscribers; (ii) upon the filing of a petition in bankruptcy or forreorganization by or against the other party for the benefit of its creditors,or the appointment of a receiver, trustee, liquidator or custodian for all or asubstantial part of the other party’s property, if such order of appointment isnot vacated within thirty (30) days; and (iii) upon the assignment by the otherparty of this Agreement contrary to the terms hereof.  Notwithstanding anything to the contrary contained herein, unlessthis Agreement is terminated by DIRECTV for an uncured material breach bySystem Operator (excluding termination under Section 2.5(h)), with respectto each SO Property, the Term shall extend for the initial term of the Right ofEntry for each such SO Property obtained by System Operator, with the finalexpiration date of this Agreement coinciding with the latest Right of Entryexpiration date of the SO Property.

 

3.2                                 Obligationsof the Parties Upon Termination or Expiration.

 

(a)                                  SystemOperator’s Obligations with Respect to Installations and Activations.  Subject to Section 3.1 above, SystemOperator shall cooperate with DIRECTV to enable DIRECTV or a substitute systemoperator to promptly perform and complete all DIRECTV Receiver installationsand activations ordered by SO Subscribers and Independent SO Subscribers priorto the termination of this Agreement according to the regular installation andactivation schedule System Operator used during the Term of thisAgreement.  System Operator shall directall customer inquiries it receives after the termination of this Agreement toDIRECTV (or such other party as specified by DIRECTV).

 

(b)                                 DIRECTV’sand System Operator’s Obligations with Respect to SO Properties.  Subject to Section 3.1 above, followingthe termination of this Agreement, (i) DIRECTV may continue to deliver DIRECTVProgramming and related services to all SO Properties in accordance withDIRECTV’s then-existing customer service procedures; and (ii) DIRECTV shallnotify the owner, manager or homeowners’ association of the MDU, asappropriate, of termination of System Operator as DIRECTV’s system operator andrecommend a substitute system operator to provide service to SO Property withrespect to delivery of DIRECTV Programming and services.  Subsequent to any termination or expirationof this Agreement, for a reasonable transition period, not to exceed [ ***redacted ***]    , System Operator shallnot impair the ability of any subscribers and residents of SO Properties tocontinue to receive DIRECTV Programming nor shall System Operator impede in anymanner whatsoever DIRECTV’s continued access (via the Signal DistributionSystem) to deliver DIRECTV Programming to the subscribers and residents in allunits of the SO Property.  DIRECTV shallcontinue to pay Commissions during any such transition period.

 

ARTICLE IVMISCELLANEOUS

 

4.1                                 ApplicableLaw; Entire Agreement; Modification. This Agreement shall be construed in accordance with and be governed bythe laws  of the State of California,applicable to contracts made and to be performed entirely therein, by residentsof the State of California.  ThisAgreement, together with all Exhibits hereto and the Terms and Conditions,constitutes the entire agreement between the parties, and supersedes allprevious understandings, commitments or representations concerning the subjectmatter.  Each party acknowledges thatthe other party has not made any representations other than those that arecontained herein.  This Agreement maynot be amended or modified, and none of its provisions may be waived, except bya writing signed by an authorized officer of the party against whom  the amendment, modification or waiver issought to be enforced.

 

4.2                                 ReviewOf Agreement By Counsel; Interpretation. By executing this Agreement, each of the parties hereto is warrantingand representing to the other that he/she/it has had the opportunity to reviewthis Agreement with independent legal, financial, and tax counsel with respectto the effect of each of the terms and conditions contained herein and haseither reviewed this Agreement with such counsel or has independently electednot to proceed with  such a review.  Each of the parties further warrants andcovenants that he/she/it is satisfied with the results of such consultation oropportunity to review and is signing this Agreement as his/her/its free act anddeed and not under any force or coercion. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY RULE OF LAW, INCLUDING BUTNOT LIMITED TO SECTION 1654 OF THE CALIFORNIA CIVIL CODE, OR ANY LEGALDECISION THAT WOULD REQUIRE INTERPRETATION OF ANY CLAIMED AMBIGUITIES IN THISAGREEMENT AGAINST THE PARTY THAT DRAFTED IT, HAS NO APPLICATION AND ANY SUCHRIGHT IS EXPRESSLY WAIVED. The provisions of this Agreement shall be interpretedin a reasonable manner to effect the intent of the parties.

 

7

----

 

4.3                                 Counterparts.  This Agreement may be executed by theparties in counterparts, each of which shall be deemed an original and all suchcounterparts together shall constitute but one and the same instrument.

 

IN WITNESS WHEREOF, the parties have caused this Agreement to beexecuted by their duly authorized representatives as of the date first writtenabove.

 

 
| DIRECTV, INC. |   | MDU  COMMUNICATIONS (USA) INC.                                        |
|---------------|--------|-----------------------------------------------------------------------|
|          |   |                                                                  |   |
|          |   |                                                                  |   |
| By:           |   |                                                                  | By: |   |   |
| Name:         |   | Name: Sheldon  Nelson                                                 |
| Title:        |   | Title: President  and Chief Executive Officer                         |
|          |   |                                                                  |   |
|          |   |                                                                  |   |
|          |   | Federal Tax ID  Number:  52-2233408                              |
|          |   |                                                                  |   |
|          |   | System Operator  Address:                                             |
|          |   |                                                                  |   |
|          |   | If By Mail:                                                           |
|          |   |                                                                  |   |
|          |   | 60-D Commerce  Way  Totowa, NJ  07512  Attention: Sheldon Nelson |
|          |   |                                                                  |   |
|          |   | If By Personal  Delivery:                                             |
|          |   |                                                                  |   |
|          |   | SAME                                                                  |
|          |   |                                                                  |   |
|          |   | If By FAX: (973)  237-9243  Attention: Sheldon Nelson                 |
|          |   |                                                                  |   |
|          |   | Telephone #:  (973) 237-9499                                          |
|               |        |                                                                       |  |  |  |  |

 

8

----