Exhibit 10.22


 


DIRECTV
MDU SYSTEM OPERATOR AGREEMENT


 


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


 


RECITALS


 


A.                                   DIRECTV
operates a direct broadcast satellite (“DBS”) service through which
subscribers are able to receive video, audio, data and other programming
distributed by DIRECTV via a direct broadcast satellite system.


 


B.                                     System
Operator distributes television programming and services to residential
multiple dwelling units (“MDUs”).


 


C.                                     DIRECTV
and System Operator desire to establish a business relationship whereby System
Operator will (i) establish and maintain in certain MDU Properties, Signal
Distribution Systems to enable MDU residents to receive DIRECTV Programming via
such Systems, and (ii) act as a commissioned sales representative for DIRECTV
to solicit and take orders for DIRECTV Commissionable Programming Packages from
residents of MDU Properties, according to this Agreement and the Terms and
Conditions attached hereto as Exhibit A.


 


ARTICLE I



DEFINITIONS


 


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


 


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


 


“Commissionable Programming Packages” shall
mean the DIRECTV Programming Packages on Exhibit B attached hereto, for which System Operator
is authorized to solicit orders on behalf of DIRECTV, and System Operator is
entitled to a Commission thereon.


 


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


 


“DIRECTV Programming” shall mean those
programming services distributed by DIRECTV, including, but not limited to
Commissionable Programming Packages, which services and the prices therefor
shall be provided to System Operator by DIRECTV, from time to time.


 


“DIRECTV Receiver” shall mean the integrated
receiver and decoder unit (IRD) necessary to receive DIRECTV Programming which
is manufactured by a DIRECTV authorized manufacturer.


 


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


 


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


 


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


 












*** signifies redacted
confidential information


 

















 


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


 


“Previous SO Subscriber” shall mean a DIRECTV
subscriber who was previously an SO Subscriber who no longer resides in an MDU
Property and who obtained his or her DIRECTV Receiver from System Operator
under terms and condition as established by DIRECTV, and whose order for a
Commissionable Programming Package at a new residence is submitted and accepted
by DIRECTV solely through the DIRECTV Movers Connectionä
program.


 


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


 


“Signal Distribution System” shall mean the
integrated signal delivery system including the receiving dish and DIRECTV
Receiver and any necessary Components by which DIRECTV Programming is
distributed throughout an SO Property, which may also include off-air and/or
cable distribution systems.


 


“SO Property” shall mean any of the MDU
Properties for which System Operator has obtained and continues to maintain
throughout the term of the Agreement a valid Right of Entry and (i) in which
System Operator has installed or maintains a Signal Distribution System, (ii) the
initial orders from residents of such property for DIRECTV Programming are
submitted by System Operator and transmitted to DIRECTV by System Operator in
accordance with the terms of this Agreement, (iii) is not located in an NRTC
Area, and (iv) all units in such property are capable of receiving DIRECTV
Programming within five (5) business days of ordering such programming.


 


“SO Subscriber” shall mean a DIRECTV subscriber
residing in an SO Property, who receives one of the Commissionable Programming
Packages through the Signal Distribution System, the initial order for which
was submitted by System Operator and who was not a DIRECTV subscriber prior to
becoming an SO Subscriber.


 


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


 


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


 


ARTICLE II



GENERAL RIGHTS AND OBLIGATIONS


 


2.1                                 Solicitation
of DIRECTV Programming Services.


 


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


 


(b)                                 Nothing
in this Agreement shall prevent DIRECTV (or those DIRECTV’s agents that are not
system operators) from marketing, soliciting and taking orders from residents
of MDU Properties.


 


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


 


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


 


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(e)                                  System
Operator shall not [ *** redacted ***] with respect to the installation and
maintenance of the Signal Distribution System.


 


(f)                                    Only
after receiving, approving and accepting an order from System Operator shall
DIRECTV be obligated to establish a customer account for the subscriber and
arrange for activation of DIRECTV Programming. 
DIRECTV shall not be obligated to pay System Operator any Commission or
any other amounts for incomplete order(s), regardless of whether DIRECTV
ultimately provides any DIRECTV Programming to the customer(s) to which such
order(s) pertained and regardless of whether DIRECTV receives any payments as
consideration for such DIRECTV Programming, unless and until DIRECTV receives
the Subscriber Information and, then, only for periods of time following such
receipt by DIRECTV.  DIRECTV shall
promptly notify System Operator of any deficiencies with respect to particular
subscriber information. “Subscriber Information” shall mean that customer
identification, location, and billing information which DIRECTV requires, as
described in the DIRECTV System Operator Policy Manual.


 


2.2                                 SO
Properties; Right of Entry.  Prior
to any solicitation of orders for DIRECTV Programming by System Operators,
System Operator shall submit to DIRECTV the complete address (including county
and zip code) of any MDU Property for which System Operator has or is seeking a
Right of Entry, in order to confirm that (i) such MDU Property is not already
being serviced by another system operator authorized by DIRECTV and (ii) such
MDU Property is not located in an NRTC Area.  
System Operator shall obtain and continuously maintain a valid Right of
Entry for such property during the Term, granting  System Operator access to the MDU, authorizing System Operator to
install and maintain the Signal Distribution System and Components, and
granting System Operator permission to solicit orders for DIRECTV Programming
from MDU residents.  System Operator
shall promptly forward to DIRECTV a fully executed Right of Entry for all SO
Properties.  In no event shall System
Operator install a Signal Distribution System in any MDU for which neither
System Operator has not obtained a valid Right of Entry and no compensation
shall be paid or reimbursed by DIRECTV to System Operator for any DIRECTV
Programming sold to subscribers in a MDU property unless and until DIRECTV has
received a copy of the applicable Right of Entry for such property.  System Operator shall provide written notice
to DIRECTV within ten (10) days of any loss, suspension, or expiration of a
Right of Entry.


 


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


 


(a)                            Explain
the general terms and conditions of the “Annual Programming Commitment
Agreement” required by DIRECTV as described in [*** redacted ***] attached
hereto and in other materials provided by DIRECTV from time to time;


 


(b)                           Cause
the customer to complete and execute the Annual Programming Commitment
Agreement;


 


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


 


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


 


(e)                            Provide
a completed and executed copy of the Annual Programming Commitment Agreement to
the customer;


 


(f)                              When
submitting an order for a DIRECTV Programming Package for such customer in
accordance with this Agreement, indicate and notify DIRECTV, in accordance with
the procedures prescribed by DIRECTV, that a customer has executed and agreed
to the Annual Programming Commitment Agreement; and


 


(g)                           Upon
request by DIRECTV, provide the completed copy of the Annual Programming
Commitment Agreement.


 


2.4.                              Implementation
of Signal Distribution System.


 


(a)                                  Installation
of Signal Distribution System and Components.


 


(i)                                     System
Operator shall design, develop, install, and maintain, a Signal Distribution
System for each SO Property which must comply with the DIRECTV Technical
Specifications as provided by DIRECTV to


 


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


 


(ii)                                  System
Operator shall maintain a design for the installation and integration of each
Signal Distribution System (“Design”) for each SO Property subject to
this Agreement, together with a time schedule for installation.  In creating, installing and maintaining any
Signal Distribution System, System Operator shall comply with all DIRECTV
System equipment manufacturers’ or Component manufacturers’ policies as may be
in effect from time to time.  DIRECTV
shall provide to System Operator written notice as soon as commercially
practicable after receipt and review of Design(s) if DIRECTV reasonably
believes that any Design will not produce a Signal Distribution System meeting
the Technical Specifications.  System
Operator shall provide installation progress reports to DIRECTV periodically or
as DIRECTV may reasonably request, and shall promptly notify DIRECTV of any
material changes to the installation schedule or Design.


 


(iii)                               Upon completion of
installation, System Operator shall promptly forward to DIRECTV, upon its
request, an updated copy of the Design and completed Technical Registration Form,
included in the Technical Specifications attached hereto as Exhibit D, which
shall include, among other things, various measurements of the signal from the
Signal Distribution System.  DIRECTV
shall provide to System Operator written notice as soon as commercially
practicable after receipt and review of the Technical Registration Form if
DIRECTV reasonably believes that such Technical Registration Form indicates
that the Signal Distribution System does not meet the Technical Specifications,
and where possible, DIRECTV shall recommend corrective actions.  Unless and until the Signal Distribution
System complies with the Technical Specifications, such MDU Property shall not
be considered an SO Property.


 


(b)                                 Technical
Compliance.  System Operator shall, at
its own cost and expense, (i) contract with an authorized DIRECTV System
manufacturer(s) to obtain DIRECTV System equipment and integrate such equipment
with any necessary Components to create the Signal Distribution System, (ii)
evaluate and test the Signal Distribution System to insure compliance with the
Technical Specifications for each unit in the SO Property, (iii) select
Components that will ensure that the Signal Distribution System meets the
DIRECTV Technical Specifications in the MDU Property environment and will allow
System Operator to fulfill its obligations under this Agreement, (iv) develop
such additional hardware or other elements as are necessary for the Signal
Distribution System to meet the Technical Specifications and allow System Operator
to fulfill its obligations under this Agreement, (v) provide such technical
demonstrations of the Signal Distribution System in any SO Property as DIRECTV
may require in its reasonable discretion upon advance written notice to System
Operator, at such times mutually agreed upon by the parties, to provide
assurance that the Signal Distribution 
System will meet the DIRECTV Technical Specifications (“Technical
Demonstration”), and provide DIRECTV the opportunity to participate and
provide input in advance of completion of the Signal Distribution System or
distribution of DIRECTV Programming via the Signal Distribution System, (vi) in
connection with such Technical Demonstration, make such changes to the initial
Signal Distribution  System as are
necessary in order for the system to meet the DIRECTV Technical Specifications,
and (vii) take all commercially reasonable actions necessary to ensure that the
Signal Distribution System continues to meet the Technical Specifications for
the Term of this Agreement.  If at any
time during the Term of this Agreement, DIRECTV determines in good faith that a
Signal Distribution System is not in strict compliance with all or any portion
of the Technical Specifications, and such noncompliance interferes with SO
Subscribers’ ability to receive DIRECTV Programming of a quality received by
other DIRECTV subscribers (i.e., the signal does not meet the
measurement 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, which
evidence may, at DIRECTV’s request, include a Technical Demonstration.  In the event such evidence is not approved
by DIRECTV within the Cure Period, DIRECTV shall have the right to cease paying
Commissions due to System Operator with respect to SO Subscribers in the
noncomplying SO Property.


 


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


 


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(d)                                 Disclaimer
of Warranties.  SYSTEM OPERATOR
UNDERSTANDS AND AGREES THAT DIRECTV SHALL HAVE NO RESPONSIBILITY WHATSOEVER FOR
ANY SIGNAL DISTRIBUTION SYSTEM, INCLUDING THE DIRECTV RECEIVER AND COMPONENTS
CONTAINED THEREIN.  DIRECTV HEREBY
DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, IN CONNECTION WITH ANY SIGNAL
DISTRIBUTION 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 OR
OTHERWISE IMPLIED IN LAW.


 


(e)                                  New
Technology; End-Use Testing. 
DIRECTV makes no representation or warranty as to how any commercially
available Components will perform with the DIRECTV System in any particular MDU
Property or how the DIRECTV System itself will perform in certain MDU
environments.  System Operators shall be
jointly and severally responsible for procuring and testing any and all
Components in the end-use environment prior to the design, development and
installation of the Signal Distribution System and for maintenance of any such
Components that fail to perform adequately in the end-use environment in order
that the Signal Distribution System will, at all times during the Term of this
Agreement, meet or exceed the Technical Specifications.  Any failure of the Signal Distribution
System to meet the Technical Specifications shall be the responsibility of
System Operator, and System Operator agrees to indemnify and hold DIRECTV
harmless from any and all Claims (as such term is defined in the
Indemnification section of the Terms and Conditions attached hereto as Exhibit A) from
SO Subscribers arising from the failure of the Signal Distribution System to
deliver the necessary signal to such subscribers and from failure of the Signal
Distribution System to meet the Technical Specifications.


 


2.5                                 Commission
and Payment Structure.  The
following sets forth all payments and commissions to be made to System Operator
as full consideration for its fulfilling its obligations hereunder.


 


(a)                                  Payment
of Prepaid Programming Commissions.


 


(i)                                     Premier
Status.


 


[ *** redacted ***]


 


(ii)                                  Standard
Status.


 


[ *** redacted ***]


 


(b)                                 Payment
of Residual Commissions.  During the
Term of this Agreement, DIRECTV will pay System Operator a monthly continuing
service fees (the “Continuing Service Fees”) equal to


 


[ *** redacted ***]


 


(c)                                  Payment
Terms.  DIRECTV shall pay System Operator
the


 


[ *** redacted ***]


 


(d)                                 Commission
Exclusion.


 


[ *** redacted ***]


 


(e)                                  Premier
Status.


 


[ *** redacted ***]


(f)                                    Churn
Rate.


 


[ *** redacted ***]


 


(g)                                 Notice.


[ *** redacted ***]


 


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(h)                                 Annual
Plan.


[ *** redacted ***]


 


2.6                                 DIRECTV
Programming.


 


(a)                                  [
*** redacted ***]    System Operator
agrees that all DIRECTV Programming (including any commercial insertion) shall
be exhibited in its entirety, in original form, as provided by DIRECTV, without
any modifications, additions or deletions. 
In no event shall System Operator repackage any other programming or
services with DIRECTV Programming.  [
*** redacted ***]


 


(b)                                 System
Operator shall not  [ *** redacted ***]


 


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


 


2.8                                 Customer
Service.  System Operator shall
undertake certain customer service functions as described herein and in the
DIRECTV System Operator Policies and Procedures Manual as defined herein below
to all SO Subscribers and Independent SO Subscribers with respect to the
installation and maintenance of the Signal Distribution System and acceptance
and transmission of orders for DIRECTV Programming. System Operator agrees to
provide the same level of installation and maintenance support for the
Independent SO Subscribers.


 


2.9                                 Policies
and Procedures.  System Operator
shall comply with the standard policies and procedures DIRECTV may promulgate
for its MDU system operators in written notices, guidelines, and bulletins, as
the same may be amended from time to time (collectively, the “Policies”).  The Policies shall be an integral part of
this Agreement but may not impair any of System Operator’s rights granted
herein.  As DIRECTV’s commissioned sales
representative, System Operator hereby agrees that it will follow and abide by
the policies and procedures related to soliciting and transmitting subscription
orders for and the promotion of DIRECTV Programming as specified in the
Policies.


 


2.10                           Additional
Obligations of System Operator.


 


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


 


(b)                                 Transport
Fee.  System Operator agrees to cancel
all transport fee waivers currently in effect.


 


(c)                                  Monthly
Report.  System Operator agrees to
provide a monthly performance report in a manner and format as mutually agreed
to by the parties.  Such report shall,
at a minimum, indicate the number of SO Subscribers procured by System
Operator, the disconnect or the churn rate of the SO Subscribers procured by
System Operator and the penetration rate of SO Subscribers at each SO Property.


 


(d)                                 Transfer
of SO Property.  In the event that
System Operator desires to transfer its interest in an SO Property to another
system operator of DIRECTV, in addition to other requirements as required by
DIRECTV for a given transfer, System Operator agrees to [ *** redacted ***] to
defray the administrative cost incurred by DIRECTV to effectuate such transfer
in its records.


 


ARTICLE III



TERM AND TERMINATION


 


3.1                                 Term
and Termination.  Unless earlier
terminated 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 System
Operator [ *** redacted ***]    In
addition to other termination rights provided in this Agreement, either party
may terminate this Agreement, effective immediately (i) upon [ *** redacted
***]    notice to the other party
following a material breach of this Agreement by the other party and the breaching
party has failed to cure such breach within the said [ *** redacted ***]


 


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period, and the
terminating party may suspend its performance during such period; provided,
however, DIRECTV shall not cease providing programming or customer service
to SO Subscribers; (ii) upon the filing of a petition in bankruptcy or for
reorganization 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 a
substantial part of the other party’s property, if such order of appointment is
not vacated within thirty (30) days; and (iii) upon the assignment by the other
party of this Agreement contrary to the terms hereof.  Notwithstanding anything to the contrary contained herein, unless
this Agreement is terminated by DIRECTV for an uncured material breach by
System Operator (excluding termination under Section 2.5(h)), with respect
to each SO Property, the Term shall extend for the initial term of the Right of
Entry for each such SO Property obtained by System Operator, with the final
expiration date of this Agreement coinciding with the latest Right of Entry
expiration date of the SO Property.


 


3.2                                 Obligations
of the Parties Upon Termination or Expiration.


 


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


 


(b)                                 DIRECTV’s
and System Operator’s Obligations with Respect to SO Properties.  Subject to Section 3.1 above, following
the termination of this Agreement, (i) DIRECTV may continue to deliver DIRECTV
Programming and related services to all SO Properties in accordance with
DIRECTV’s then-existing customer service procedures; and (ii) DIRECTV shall
notify the owner, manager or homeowners’ association of the MDU, as
appropriate, of termination of System Operator as DIRECTV’s system operator and
recommend a substitute system operator to provide service to SO Property with
respect to delivery of DIRECTV Programming and services.  Subsequent to any termination or expiration
of this Agreement, for a reasonable transition period, not to exceed [ ***
redacted ***]    , System Operator shall
not impair the ability of any subscribers and residents of SO Properties to
continue to receive DIRECTV Programming nor shall System Operator impede in any
manner whatsoever DIRECTV’s continued access (via the Signal Distribution
System) to deliver DIRECTV Programming to the subscribers and residents in all
units of the SO Property.  DIRECTV shall
continue to pay Commissions during any such transition period.


 


ARTICLE IV



MISCELLANEOUS


 


4.1                                 Applicable
Law; Entire Agreement; Modification. 
This Agreement shall be construed in accordance with and be governed by
the laws  of the State of California,
applicable to contracts made and to be performed entirely therein, by residents
of the State of California.  This
Agreement, together with all Exhibits hereto and the Terms and Conditions,
constitutes the entire agreement between the parties, and supersedes all
previous understandings, commitments or representations concerning the subject
matter.  Each party acknowledges that
the other party has not made any representations other than those that are
contained herein.  This Agreement may
not be amended or modified, and none of its provisions may be waived, except by
a writing signed by an authorized officer of the party against whom  the amendment, modification or waiver is
sought to be enforced.


 


4.2                                 Review
Of Agreement By Counsel; Interpretation. 
By executing this Agreement, each of the parties hereto is warranting
and representing to the other that he/she/it has had the opportunity to review
this Agreement with independent legal, financial, and tax counsel with respect
to the effect of each of the terms and conditions contained herein and has
either reviewed this Agreement with such counsel or has independently elected
not to proceed with  such a review.  Each of the parties further warrants and
covenants that he/she/it is satisfied with the results of such consultation or
opportunity to review and is signing this Agreement as his/her/its free act and
deed and not under any force or coercion. 
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY RULE OF LAW, INCLUDING BUT
NOT LIMITED TO SECTION 1654 OF THE CALIFORNIA CIVIL CODE, OR ANY LEGAL
DECISION THAT WOULD REQUIRE INTERPRETATION OF ANY CLAIMED AMBIGUITIES IN THIS
AGREEMENT AGAINST THE PARTY THAT DRAFTED IT, HAS NO APPLICATION AND ANY SUCH
RIGHT IS EXPRESSLY WAIVED. The provisions of this Agreement shall be interpreted
in a reasonable manner to effect the intent of the parties.


 


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


 


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


 


 


	
  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

  
							



 


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