Exhibit 10.10
[Confidential information has
been designated with the
phrase: Confidential infor-
mation has been omitted and
filed separately with the
Commission.]
DIRECTV--WIRELESS ONE
COOPERATIVE MARKETING AGREEMENT
This Cooperative Marketing Agreement ("Agreement") is
made and entered into as of this ___ day of August, 1997
("Execution Date"), between DIRECTV, Inc., a California
corporation ("DIRECTV"), and Wireless One, Inc., a Mississippi
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 commercial programming distributed by
DIRECTV via a direct broadcast satellite system.
B. System Operator operates a wireless cable service
through which subscribers in single family homes and multiple
dwelling units ("MDUs"s are able to receive video, audio, data
and other commercial programming distributed via terrestrial
microwave and broadcast facilities.
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 Satellite
Television 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 within the states of Alabama, Arkansas, Florida,
Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, Tennessee and Texas (the "Territory"), and (iii)
DIRECTV will provide certain transport services to enable System
Operator to increase the amount of commercial programming
distributed by System Operator to its subscribers in certain MDU
Properties designated by System Operator, all according to this
Agreement, the Terms and Conditions attached hereto as Exhibit A,
that certain Transport Agreement, dated the Execution Date, by
and between DIRECTV and System Operator (the "Transport
Agreement"), that certain Subscriber Service Payment Agreement,
and that certain DSS Receiver Support Agreement, dated the
Execution Date, by and between DIRECTV and System Operator.
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" shall have the meaning assigned such term in
Section 2.4(a) hereof.
"Commissionable Programming Packages" shall mean the
DIRECTV Programming on Exhibit B hereto, which may be amended
upon the mutual agreement of the parties, for which System
Operator is authorized to solicit orders on behalf of DIRECTV and
is entitled to an Aggregate 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 sold under the tradename "DSSr",
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.
"DSS Receiver" shall mean the integrated receiver and
decoder unit (IRD) sold under the tradename "DSS" 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 a SO Property whose original DIRECTV
Programming order was submitted directly by the subscriber to
DIRECTV or by an entity other than System Operator.
"Marketing Supplement" shall have the meaning assigned such
term in Section 2.4(a) hereof.
"MDU Property" shall mean a condominium complex, apartment
building (including both rental and cooperative apartments), or
townhouse community, located in the Territory, 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 share a common area to which there is
unrestricted access by two or more persons, and which units may
receive DIRECTV Programming from a common DSS dish and separate
DSS 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 or the order or use of such
DIRECTV Programming.
"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 on 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 a SO
Property.
"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 a 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 DSS dish and DSS Receiver
and any necessary Components by which DIRECTV Programming is
distributed throughout a SO Property, which may also include off-
air, wireless cable 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 a Signal Distribution System, (ii)
the initial orders from residents of such property for DIRECTV
Programming are submitted by the 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 occupiable 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
a SO Property, who receives one of the DIRECTV Commissionable
Programming Packages, the initial order for which was submitted
by the System Operator and/or DIRECTV, and who was not a DIRECTV
subscriber prior to becoming a SO Subscriber.
"Technical Specifications" shall mean the requirements in
Exhibit D hereto or any other document(s) supplied by DIRECTV to
System Operator during the Term, which reasonably 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.
"USSB Programming" shall mean programming distributed by
United States Satellite Broadcasting Company, Inc. or its
successor via the direct broadcast satellite(s) positioned at a
101 west longitude orbit.
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, which
shall not be unreasonably withheld
(d) [Confidential information has been omitted and
filed separately with the Commission.]
(e) [Confidential information has been omitted and
filed separately with the Commission.] Notwithstanding the
foregoing, nothing in this Agreement is intended to limit any
agreement between System Operator and any owner of an SO Property
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 Marketing
Supplements 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 Policy Manual.
(g) [Confidential information has been omitted and
filed separately with the Commission.]
2.2 SO Properties; Right of Entry. Prior to any
solicitation of orders for DIRECTV Programming by System
Operator, 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. In the
event an MDU Property is being serviced by another system
operator, DIRECTV will provide System Operator with the name and,
to the extent not prohibited by a confidentiality agreement,
telephone number of the system operator. System Operator shall
use commercially reasonable efforts to maintain a valid Right of
Entry for SO Properties for the entire Term of the Agreement.
Such Right of Entry will grant 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 the
Territory. In no event shall System Operator install a Signal
Distribution System in any MDU for which System Operator does not
have 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. In no event shall System Operator
continue to service an MDU Property without a valid Right of
Entry and, in the event System Operator no longer has a valid
Right of Entry with respect to a particular SO Property, this
Agreement shall terminate with respect to 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. 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 materially comply with the DIRECTV Technical
Specifications as provided by DIRECTV to System Operator, the
current version of which is set forth in Exhibit D 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 (i) System Operator
shall be under no obligation to modify the Design (as defined
below) of any Signal Distribution System in an SO Property that
has been submitted to DIRECTV pursuant to Section 2.3(a)(ii); and
(ii) the Design for any Signal Distribution Systems submitted to
DIRECTV pursuant to Section 2.3(a)(ii) after receipt of the
revised or amended Technical Specifications shall comply with
such revised or amended Technical Specifications.
(ii) System Operator shall provide to DIRECTV 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 materially comply with all DSS
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, but in any event prior to the construction start
date (as long as System Operator has provided DIRECTV such
Designs at least five business days prior to such construction
start date), 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 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 materially
complies with the Technical Specifications, such MDU Property
shall not be considered a SO Property.
(b) Technical Compliance. [Confidential information
has been omitted and filed separately with the Commission.]
(c) Provision of Signal Distribution System and IRDs.
Except as otherwise provided in the Receiver Support Agreement,
System Operator shall, at its sole cost: (i) acquire and supply
Signal Distribution Systems and individual IRDs (if applicable)
to SO Properties at commercially reasonable prices (unless
otherwise agreed to between System Operator and DIRECTV); (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. System Operator agrees to allow all
authorized DSS equipment to be used by the SO Subscribers and the
Independent SO Subscribers and agrees to provide the same level
of Signal Distribution System installation and maintenance, and
customer service support, for the Independent SO Subscribers as
System Operator does for the SO Subscribers.
(d) Disclaimer of Warranties. SYSTEM OPERATOR
UNDERSTANDS AND AGREES THAT DIRECTV SHALL HAVE NO RESPONSIBILITY
WHATSOEVER FOR ANY SIGNAL DISTRIBUTION SYSTEM, INCLUDING THE DSS
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. System Operator
understands and acknowledges that the technology (including some
or all of the Components) for providing DIRECTV Programming to
multiple-dwelling units is currently being developed and has
not been tested in the MDU environment by DIRECTV. DIRECTV makes
no representation or warranty as to how any commercially
available Components will perform with the DSS system in any
particular MDU Property or how the DSS system itself will perform
in certain MDU environments. System Operator shall be solely
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, materially meet or exceed the Technical
Specifications. Any material failure of the Signal Distribution
System to meet the Technical Specifications shall be the sole
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. In the event of signal failure due to DIRECTV's
error or negligence, DIRECTV agrees to use its best efforts to
treat the SO Subscribers equally with other DIRECTV residential
subscribers with respect to restoring service.
2.4 Commission and Payment Structure. The Subscriber
Service Payment Agreement, the DSS Receiver Support Agreement and
the following set forth all payments and commissions to be made
by DIRECTV to System Operator as full consideration for its
fulfilling its obligations hereunder.
(a) Payment of Commissions and Marketing Supplements.
DIRECTV will pay System Operator a commission ("Commission")
equal to [confidential information has been omitted and filed
separately with the Commission] of all Net Receipts received by
DIRECTV from each active SO Subscriber per month for
Commissionable Programming Packages, solely with respect to those
Net Receipts received by DIRECTV while this Agreement is in
effect. DIRECTV will further pay System Operator a marketing
supplement (the "Marketing Supplement") equal to [confidential
information has been omitted and filed separately with the
Commission] of all Net Receipts received by DIRECTV from each
active SO Subscriber per month for Commissionable Programming
Packages, solely with respect to those Net Receipts received by
DIRECTV while this Agreement is in effect. The Commissions and
Marketing Supplements shall collectively be referred to herein as
"Aggregate Commissions." System Operator agrees that the
Marketing Supplement will be applied by System Operator
throughout the Term of the Agreement toward the marketing of the
Commissionable Programming Packages to MDU Properties. In
addition, DIRECTV will pay System Operator a commission equal to
[confidential information has been omitted and filed separately
with the Commission] of all Net Receipts received by DIRECTV from
each active Previous SO Subscriber per month for Commissionable
Programming Packages, solely with respect to those Net Receipts
received by DIRECTV while this Agreement is in effect.
Commissions and Marketing Supplements will be paid within
[confidential information has been omitted and filed separately
with the Commission] days after the accounting month in which
DIRECTV receives the Net Receipts.
(b) Commission Exclusion. [Confidential information
has been omitted and filed separately with the Commission.]
2.5 DIRECTV Programming.
(a) [Confidential information has been omitted and
filed separately with the Commission.] 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 except that System Operator may package the programming
secured under the Transport Agreement with the other programming
available to the wireless cable subscribers.. In no event shall
System Operator repackage any other programming or services with
DIRECTV Programming. In addition to the DIRECTV Programming
packages DIRECTV currently offers, DIRECTV may create packages of
programming specially targeted for MDU subscribers.
[Confidential information has been omitted and filed separately
with the Commission.]
(b) System Operator shall not, and shall ensure that
each SO Subscriber or resident or agent of an SO Property does
not, (i) resell, retransmit or rebroadcast or otherwise
redistribute in any manner or form whatsoever any DIRECTV
Programming, or (ii) make any modification, addition, or deletion
to any of the DIRECTV Programming (including any commercial
insertions).
2.6 Exclusivity. [Confidential information has been
omitted and filed separately with the Commission.]
2.7 Customer Service. System Operator shall undertake
certain customer service functions as described herein and in the
DIRECTV Policy Manual 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.
2.8 Policies and Procedures. Attached hereto in Exhibit F
is a copy of DIRECTV's System Operator Policies and Procedures
Manual, which may be amended, from time to time upon 30 days
prior written notice from DIRECTV (such Manual, as amended from
time to time, the "DIRECTV Policy Manual"). As DIRECTV's
commissioned sales representative, System Operator hereby agrees
that it will materially 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 DIRECTV Policy Manual. The DIRECTV Policy Manual includes,
among other things, customer authorization procedures, DIRECTV
receivables payment, and various requirements related to taking
subscription orders.
ARTICLE III
TERM AND TERMINATION
3.1 Term and Termination. The term of this Agreement
("Term") shall commence on the Execution Date and continue until
the earlier to occur of (i) the seventh anniversary of the
Execution Date, and (ii) termination by either party pursuant to
the terms of this Agreement. Either party may terminate this
Agreement, effective immediately (i) upon [confidential
information has been omitted and filed separately with the
Commission] days written notice to the other party following a
material breach of this Agreement by the other party, unless such
material breach is cured within 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 [confidential information has
been omitted and filed separately with the Commission] days; and
(iii) upon the assignment by the other party of this Agreement
contrary to the terms hereof.
3.2 Obligations of the Parties Upon Termination or
Expiration.
(a) System Operator's Obligations with Respect to
Installations and Activations. System Operator shall cooperate
with DIRECTV to enable DIRECTV or a substitute system operator to
promptly perform and complete all DSS 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; provided,
however, and only to the extent that DIRECTV or such substitute
system operator has obtained or been assigned the Right of Entry
for an SO Property. 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. [Confidential information has been
omitted and filed separately with the Commission.]
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, the Terms and Conditions, the Transport Agreement, the
Subscriber Service Payment Agreement and the DSS Receiver Support
Agreement, constitute 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.
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. WIRELESS ONE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
------------------------- ---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title: Director Title:
Federal Tax ID Number: [Confidential
information has been omitted and filed
separately with the Commission.]
System Operator Address:
If By Mail:
[Confidential information has been omitted
and filed separately with the Commission.]
If By Personal Delivery:
[Confidential information has been omitted
and filed separately with the Commission.]
If by FAX:
[Confidential information has been omitted
and filed separately with the Commission.]
EXHIBIT A
DIRECTV MDU SYSTEM OPERATOR AGREEMENT TERMS AND CONDITIONS
[Attached hereto]
EXHIBIT B
COMMISSIONABLE PROGRAMMING PACKAGES
[Confidential information has been omitted and filed separately
with the Commission.]
EXHIBIT C
NRTC MAP
[Confidential information has been omitted and filed separately
with the Commission.]
EXHIBIT D
TECHNICAL SPECIFICATIONS
[Confidential information has been omitted and filed separately
with the Commission.]
EXHIBIT E
ADVERTISING GUIDELINES
[Confidential information has been omitted and filed separately
with the Commission.]
EXHIBIT F
DIRECTV SYSTEM OPERATOR POLICIES & PROCEDURES
[Confidential information has been omitted and filed separately
with the Commission.]
EXHIBIT A
DIRECTV MDU SYSTEM OPERATOR AGREEMENT
TERMS AND CONDITIONS
These Terms and Conditions refer to, and form additional terms of, the DIRECTV
MDU System Operator Agreement. The Agreement, all exhibits thereto, including
these Terms and Conditions, are hereinafter referred to as (the "Agreement").
All capitalized terms used herein and not defined herein shall have the
meanings described such terms in the Agreement.
1. DIRECTV Logo and Trademark Usage. System Operator shall not use any
DIRECTV trademark, service name or logo, including, without limitation,
"DIRECTV{}", "DSS{}",
and "Total Choice{}", as well as
those marks and tradenames in the Advertising Guidelines provided by
DIRECTV to System Operator (collectively, the "DIRECTV Trademarks")
without receiving DIRECTV's prior written consent, which may be granted
or withheld or withdrawn in DIRECTV's sole discretion. The Advertising
Guidelines include a trademark and logo usage guidelines manual (which
manual may be amended by DIRECTV from time to time) that specifies the
proper use and placement of the DIRECTV Trademarks (the "Logo
Guidelines"). If System Operator receives DIRECTV's consent to use the
DIRECTV Trademarks, System Operator shall use DIRECTV Trademarks only in
accordance with the provisions of the DIRECTV Advertising Guidelines,
including the Logo Guidelines. System Operator shall not use any logo,
trademark, service ▇▇▇▇ or name of any supplier of DIRECTV (including,
without limitation, entities providing programming to DIRECTV or
manufacturers of DSS equipment or Components) for any purpose without
the prior written approval of DIRECTV or such other entities.
2. System Operator Representations and Warranties. System Operator hereby
represents, warrants and covenants that it:
(a) Shall, throughout the Term, comply with and abide by (i) any and
all applicable federal, state and local laws, rules, regulations and
ordinances, including, without limitation, those set forth in Section
6 hereof; and (ii) upon notice thereof, any and all agreements and/or
requirements as may be requested by providers of programming services
to DIRECTV, each as applicable to System Operator and its employees
and agents in connection with the performance of its obligations
pursuant to the Agreement;
(b) Shall, at its sole expense, provide and maintain all facilities,
vehicles, tools and equipment ("System Operator Equipment") as may be
necessary and proper for performing its obligations pursuant to the
Agreement, and keep all System Operator Equipment in good working
order and repair at all times;
(c) Shall, at its sole expense, obtain all permits and licenses which
may be required under any applicable federal, state or local law,
rule, regulation or ordinance to perform its obligations pursuant to
the Agreement, including, without limitation, installing and
maintaining the Signal Distribution System in any SO Property;
(d) Shall pay and discharge all license fees and business, use,
sales, gross receipts, income, property or other taxes or which may
be charged or levied upon System Operator by reason of the
performance of its obligations pursuant to the Agreement;
(e) Shall, at all times throughout the Term, present a professional
business appearance and attitude;
(f) Shall not engage in any financial transactions with subscribers
residing in SO Properties which elicit or seek to elicit from
subscribers a fee, license, or other payment incident to receipt of
DIRECTV Programming by such subscriber, other than the fees charged
by DIRECTV, fees assessed any such subscriber by the SO Property's
owner, manager, or homeowners' association, or commercially
reasonable fees assessed any such subscriber by System Operator for
installation, maintenance, upgrade, or other such services as
outlined in DIRECTV Policy Manual;
(g) Shall not engage in any activity or business transaction which
could be considered unethical, as determined by DIRECTV its sole
discretion, or damaging to the image, goodwill or business of
DIRECTV;
(h) Shall maintain throughout the Term, at System Operator's sole
expense, any and all insurance and/or bonds that may be required
under the laws, ordinances and regulations of any governmental
authority with respect to System. Operator's performance of its
obligations hereunder, including installation of the Signal
Distribution System and Components in MDU Properties and sale or
solicitation of orders for DIRECTV Programming. Such insurance
coverage shall include, but not be limited to, (i) workers
compensation insurance as required by applicable laws; (ii)
employer's liability insurance with limits of not less than
$1,000,000 per occurrence; (iii) commercial general liability
insurance, including contractual liability and personal injury
liability with limits of not less than $2,000,000 combined single
limit per occurrence, to provide protection against claims and/or
liabilities including, but not limited to, claims for bodily injury
or property damage, which may arise or result from performance of
System Operator's obligations under the Agreement, whether the
services are performed by System Operator or System Operator's
subcontractors or by an agent and/or by anyone directly or indirectly
employed by System Operator or System Operator's subcontractors or
agents. Simultaneous with the execution of the Agreement, System
Operator shall deposit with DIRECTV evidence of the required
insurance protection in the form of certificates of insurance for the
insurance coverage described above. The amounts shall not be less
than the amounts specified above, or such other amounts as specified
in advance in writing by DIRECTV's Insurance Office. These
certificates must include DIRECTV as an additional insured. All
certificates shall provide that the insurer give thirty (30) days
written notice to DIRECTV prior to the effective date of expiration,
any material change or cancellation; and
(i) shall, throughout the Term, maintain a valid Right of Entry for
each SO Property.
3. DIRECTV Representations and Warranties. DIRECTV hereby represents,
warrants and covenants that it shall:
(a) Comply with any and all applicable federal, state and local laws,
rules, regulations and ordinances applicable to DIRECTV, its
employees and agents relating to DIRECTV's obligations pursuant to
the Agreement; and
(b) At its sole expense, obtain all permits and licenses which may be
required under any applicable federal, state or local law, rule,
regulation or ordinance to perform its obligations pursuant to the
Agreement.
4. Proprietary Information; Confidentiality.
(a) Except as otherwise provided for in the Agreement, without the
express written consent of a party (the "Providing Party"), which may
be granted or withheld in the Providing Party's sole discretion, the
other party (the "Receiving Party") shall not use, other than as
necessary to comply with the terms of the Agreement, and shall not
provide or sell to any third party, any Confidential Information,
other than as set forth in Section 4(b) below. "Confidential
Information" shall mean any information, in whatever form (paper,
computer files, oral statements, etc.) of the Providing Party's
intellectual property, customer information, or any other information
obtained by the Receiving Party in connection with the Agreement or
the actions contemplated thereby, whether provided by the Providing
Party, or derived independently or otherwise, including, without
limitation: (i) all customer lists and other information related to
customer's ordering any DIRECTV services; (ii) all market information
and studies and marketing information; (iii) all information
pertaining to purchasers, renters or lessees of Signal Distribution
Systems from System Operator; and (iv) all of the written data,
summaries, reports, other proprietary information, trade secrets and
information of all kinds, acquired, devised or developed in any
manner from the other party's personnel or files or pursuant to the
Agreement. Immediately upon the Providing Party's written request
(which request the Providing Party may make, as a specific or general
request, in its sole discretion at any time up to one year after the
last day of the Term), the Receiving Party shall provide to the
Providing Party (or destroy if the Providing Party so requests) all
requested Confidential Information. Notwithstanding the foregoing,
DIRECTV shall be entitled to use for any purpose and shall not be
required to provide to System Operator, or destroy, any records or
information pertaining to SO Properties, (except Designs), SO
Subscribers or potential SO Subscribers.
(b) In addition, the parties agree that, except as otherwise provided
for in the Agreement, they and their employees have and will maintain
in confidence the terms and provisions of the Agreement, as well as
all of the Confidential Information of the other party and that they
have not and will not reveal the same to any persons not employed by
the other party except: (I) at the written direction of the other
party; (ii) to the extent necessary to comply with the law or the
valid order of a court of competent jurisdiction, in which event the
disclosing party shall so notify the other party as promptly as
practicable (and, if possible, prior to making any disclosure) and
shall seek confidential treatment of such information, or in
connection with any arbitration proceeding; (iii) as part of its
normal reporting or review procedure to its parent company, its
auditors and its attorneys, and such parent company, auditors and
attorneys agree to be bound by the provisions of this Section 4; (iv)
in order to enforce any of its rights pursuant to the Agreement; (v)
to current or potential investors, insurers or financing entities;
provided, however, that such person described above agrees to be
bound by the provisions of this Section 4; (vi) if, prior to the time
of disclosure, the Confidential Information is in the public domain
or is otherwise validly known to the intended recipient; or (vii)
after the Confidential Information becomes part of the public domain
by written publication through no fault of the party revealing such
Confidential Information. The parties agree to maintain as any oral
Confidential Information in accordance with standard industry
practice (subject to the foregoing exceptions for Confidential
Information).
5. Press Release. During the term of the Agreement, neither party shall
issue an independent press release with respect to the Agreement or
the transactions contemplated hereby without the prior written
consent of the other party.
6. Compliance with Law. Each party shall comply with all applicable
governmental statutes, laws, rules, regulations, ordinances, codes,
directives, and orders (whether federal, state, municipal or
otherwise) and is solely responsible for the compliance with all such
laws arising out of or relating to its obligations under the
Agreement, including, without limitation, all federal and state laws
governing direct sales, and any rules and regulations of any
homeowners' associations governing MDU Properties solicited by System
Operator.
7. Power and Authority; No Breach. Each of the parties represents and
warrants that it has full power and authority to enter into the
Agreement and perform its obligations hereunder and that its
execution of the Agreement and performance of its obligations
hereunder does not and will not violate any law or result in a breach
of or default under the terms of any contractor agreement by which
such party is bound.
8. Indemnification. Each party shall indemnify, defend and hold
harmless the other, and their respective employees, officers and
directors from and against any and all any losses, damages, claims,
demands, suits, liabilities and expenses (including reasonable
attorneys' fees and other costs of investigation and defense)
(collectively, "Claims") caused by or arising out of, directly or
indirectly, a breach of the indemnifying party's obligations under
the Agreement or negligence in the performance thereof. In addition,
System Operator shall indemnify DIRECTV, and its employees, officers
and directors from and against any and all Claims arising out of
System Operator's construction, installation and/or maintenance of
the Signal Distribution System or any other equipment utilized in
connection with the provision of DIRECTV services to SO Properties,
including, without limitation, any Claims that arise out of or result
from any infringement, suit, claim or allegation of infringement of
any patent, trademark, copyright, trade secret or other proprietary
interest based on the Signal Distribution System, or any Claims with
respect to the Signal Distribution System or any Component thereof
being defective or not suitable for the purpose intended or used.
Notwithstanding anything to the contrary contained herein, System
Operator expressly waives any right to indemnification from DIRECTV
arising from the content of any programming (including, without
limitation, claims relating to trademark, copyright, music,
performance and other proprietary interests), or (ii) the
construction, use and/or operation of any satellites of DIRECTV or an
affiliated company from which DIRECTV Programming originates.
9. No Unauthorized Warranties or Representations. System Operator shall
not make any warranty or representation inconsistent with or in
addition to any warranty or representation stated in writing by
DIRECTV or a manufacturer of Signal Distribution Systems or
Components. If System Operator makes any such inconsistent or
additional warranty or representation, System Operator shall, at its
own expense, indemnify, defend and hold DIRECTV harmless from any
claim relating thereto.
10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THE AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF THE OTHER PARTY OR ANY
THIRD PARTY, WHETHER FORESEEABLE OR NOT AND REGARDLESS OF THE FORM,
LEGAL THEORY OR BASIS OF RECOVERY OF ANY SUCH CLAIM.
11. Assignment. System Operator shall not transfer any of its rights or
obligations under the Agreement without the prior written consent of
DIRECTV, which consent shall not be unreasonably withheld. DIRECTV
may assign the Agreement to a successor of all or substantially all
of its assets or in connection with a public offering, a merger or
the sale of all or substantially all of its assets, and to any sales
management agent appointed by DIRECTV in its sole discretion and who
is responsible for managing a defined territory of dealers of DIRECTV
Programming, upon written notice to System Operator.
12. Taxes. Any taxes (including, without limitation, any property,
employee, service, franchise, customs, import/export duties, excise
and any other related taxes) asserted against System Operator or
DIRECTV by any local, state, national or international entity as a
result of or arising under the performance of its obligations under
the Agreement shall be the responsibility of the party against which
such taxes are asserted. Each party shall be responsible for any
taxes related to its income hereunder.
13. Arbitration. Any dispute or disagreement arising between DIRECTV and
System Operator shall be resolved according to binding arbitration
conducted in Los Angeles, California in accordance with the Expedited
Procedures of the Commercial Arbitration Rules of the American
Arbitration Association then in effect; provided, however, that the
parties may seek Injunctive relief in any court of competent
jurisdiction and may enforce the provisions of any arbitration award
in any court of competent jurisdiction. Arbitration shall be by a
single arbitrator chosen by the parties, provided that, if the
parties fail to agree and to appoint a single arbitrator within
thirty (30) calendar days from the date a party has made a demand for
arbitration, then the arbitrator shall be chosen in accordance with
the Rules. The decision of the arbitrator shall be final and binding
on the parties and any award of the arbitrator may be entered in any
court of competent jurisdiction. Notwithstanding the foregoing, the
arbitrator shall not be authorized to award punitive damages with
respect to any such controversy, claim or dispute, nor shall any
party seek punitive damages relating to any matter arising out of, or
relating to, the Agreement in any other forum. The cost of any
arbitration hereunder, including the cost of the record or
transcripts thereof, if any, administrative fees, attorneys' fees and
all other fees involved, shall be paid by the party determined by the
arbitrator to not be the prevailing party, or otherwise allocated in
an equitable manner as determined by the arbitrator. All rights and
remedies of either party are cumulative of each other and of every
other right or remedy such party may otherwise have at law or in
equity, and the exercise of one or more rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of other
rights or remedies.
14. Independent Contractor, No Agents; Relationship; No Third Party
Beneficiaries. The parties agree that System Operator is an
independent contractor in performing the construction and
installation of Signal Distribution Systems, the marketing DIRECTV
Programming and other services described in the Agreement. No party
(nor any of its officers, directors, agents or employees) shall act
or hold itself out as an agent of the other party hereto. The
parties do not intend the Agreement or the relationship hereunder to
constitute a joint venture, partnership or franchise of any type.
The provisions of the Agreement are for the benefit only of the
parties hereto, and no third party may seek to enforce, or benefit
from, these provisions.
15. Audit Rights. DIRECTV and/or its representatives shall have the
right, exercisable no more than once per year (and once following
termination of the Term), at its sole cost and expense (unless a
discrepancy of five percent [5%] or more is revealed, in which case
System Operator shall bear all such costs and expenses), to audit
System Operator's books and other records relating to its obligations
under the Agreement. In addition, DIRECTV shall have reasonable
access to System Operator's personnel, the SO Properties and System
Operator's facilities, but only upon reasonable notice and during
regular business hours at System Operator's place of business and
without unreasonable disruption to System Operator's business.
16. Force Majeure. Notwithstanding any other provision in the Agreement,
neither System Operator nor DIRECTV shall have any liability to the
other or any other person or entity with respect to any failure of
System Operator or DIRECTV to perform its obligations under the terms
of the Agreement if such failure is due to a Force Majeure. "Force
Majeure" shall mean any labor dispute; fire; flood; earthquake; riot;
legal enactment; government regulation; Act of God; any problem
associated with the construction, use and/or operation of DIRECTV's
satellite(s) or related systems; any problem associated with any
scrambling/descrambling equipment or any other equipment owned or
maintained by others; or any cause beyond the reasonable control of
both parties.
17. Notices. All notices and other communications from either party to
the other hereunder shall be in writing and shall be deemed received
upon actual receipt when personally delivered, upon acknowledgment of
receipt if sent by facsimile, or upon the expiration of the third
business day after being deposited in the United States mails,
postage prepaid, certified or registered mail, addressed to the other
party at a location specified in writing by such party. Until notice
in accordance with this Section 17 is given to the contrary, the
addresses, phone numbers and facsimile number for purposes of giving
notice are as follows:
System Operator: Refer to the information set forth on the execution
page of the Agreement.
DIRECTV:
(a) If by mail:
DIRECTV, Inc.
▇.▇. ▇▇▇ ▇▇▇
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Attention: Vice President, MDU Sales
cc: Business Affairs
(b) If by personal delivery:
DIRECTV, Inc.
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Attention: Vice President, MDU Sales
cc: Business Affairs
(c) If by FAX:
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Attention: Vice President, MDU Sales
cc: Business Affairs
18. Severability. Nothing contained in the Agreement shall be construed
to require commission of any act contrary to law and, whenever there
is any conflict between any provision of the Agreement and any law,
such law shall prevail; provided, however, that in such event, the
affected provisions of the Agreement shall be modified to the minimum
extent necessary to permit compliance with such law and all other
provisions shall continue in full force and effect.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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