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EXHIBIT 10.27
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
ECHOSTAR SATELLITE CORPORATION
MDU DEALER AGREEMENT
This MDU Dealer Agreement ("Agreement") is effective as of the 14th
day of January 1999, by and between EchoStar Satellite Corporation having a
principal place of business at 0000 X. Xxxxx Xx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000; Attn: General Counsel ("EchoStar"), and TVMAX Telecommunications, Inc.,
d/b/a OpTel, having a principal place of business at 0000 Xxxx Xxxxxxxxxxx Xxxx,
00xx Xxxxx, Xxxxxx, Xxxxx 00000; Attn: Vice President-Marketing ("MDU Dealer").
INTRODUCTION
A. EchoStar is engaged, among other things, in the business of
providing digital direct broadcast satellite (DBS) services through the DISH
Network, a DBS service owned and operated by EchoStar and its Affiliates in the
United States.
B. MDU Dealer, acting as an independent contractor, desires to become
authorized on a non-exclusive basis (an "Authorized MDU Dealer"), to market,
promote, and solicit orders for certain DISH Network video and audio programming
provided by EchoStar ("Programming") to MDU Buildings through the use of a
common antenna system installed and maintained by MDU Dealer (an "MDU System").
C. EchoStar desires to appoint MDU Dealer as an Authorized MDU Dealer
in accordance with and subject to the terms and conditions of this Agreement.
AGREEMENT
1. DEFINITIONS In addition to the capitalized terms defined elsewhere in
this Agreement, the following definitions shall apply to this Agreement:
1.1 "Affiliate" means any person or entity directly or indirectly
controlling, controlled by or under common control with another person or
entity.
1.2 "Commissionable Programming" means the Programming packages set
forth in Exhibit A hereto, which EchoStar may change at any time in its sole
discretion as provided in Section 3.1 below upon notice to MDU Dealer. Under no
circumstances shall Commissionable Programming include pay-per-view or event
broadcasts.
1.3 "Commissions" means the Residual Commissions, together with any
Additional Commissions, as such terms are defined in Sections 5.1 and 5.2.
1.4 "DISH DBS Receiver" means an MPEG-2 DVB compliant satellite
receiver and related components packaged therewith, to be utilized for the
reception of Programming delivered to such system via satellite transponders
owned and operated by EchoStar or its Affiliates, which is sold directly to MDU
Dealer by EchoStar under the "EchoStar" brand name.
1.5 "EFT" means the electronic transfer of funds by a financial
institution to an account designated by EchoStar.
1.6 "MDU Building" means a building located in the Territory
subdivided into two or more individual single family residential dwelling units,
which consists solely of apartment complexes, condominiums, townhomes,
residential dormitories, gated private residential communities, and private
single family residential buildings. If MDU Dealer desires that EchoStar
classify a building as an MDU Building prior to beginning work on such building
as provided hereunder, EchoStar agrees to use commercially reasonable efforts to
provide a classification for the building upon receipt from MDU Dealer of a
signed statement listing and verifying to EchoStar all relevant details
concerning the building, including a description of how the building is used,
whether common areas exist in the building, whether the general public is able
to enter the building, etc. Notwithstanding anything to the contrary in this
Section 1.6, MDU Dealer may not provide Programming to any building or portion
of a building that: (i) is a common area, reception area, waiting area, or lobby
accessible to more than one family (and their invited guests); (ii) charges an
admission or other fee to enter; (iii) is accessible to members of the general
public; (iv) is a commercial business or establishment, including without
limitation a restaurant or bar; (v) is a hospital, hotel, motel, or other
similar temporary lodging; (vi) is a prison, halfway house, mental institution,
or other secured treatment or correctional facility; or (vii) is a private
office or other room used to conduct business on a regular basis. MDU Dealer
acknowledges that if the means of use or operation of an MDU Building change, it
may no longer qualify as an MDU Building.
1.7 "Qualifying Subscriber" means a resident of an MDU Building who
uses a DISH DBS Receiver that EchoStar verifies has been obtained from MDU
Dealer. A Qualifying Subscriber shall not include any person who would otherwise
qualify, but who: (a) uses a DISH DBS Receiver not obtained by the person from
MDU Dealer; (b) no longer meets the definition of Qualifying Subscriber; or (c)
EchoStar declines to activate or deactivates because EchoStar determines the
person: (i) is or has been repeatedly or severely abusive or threatening to the
business operations or reputation of EchoStar or its Affiliates or to any of its
or their employees, agents, or representatives, or (ii) is or has been convicted
of piracy or other fraud related to television programming.
1.8 "Subscriber Account" means the account set up and maintained by
EchoStar for a Qualifying Subscriber who obtained a DISH DBS Receiver from MDU
Dealer and for whom Commissionable Programming has been activated by EchoStar
and which account is being paid by MDU Dealer under this Agreement and remains
active and in good standing.
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1.9 "Territory" consists of the geographic boundaries of the
continental United States.
2. GENERAL
2.1 APPOINTMENT. EchoStar appoints MDU Dealer as a non-exclusive
authorized representative to promote and solicit orders for the Programming
listed in Exhibit A, which is attached hereto and incorporated by reference
herein, subject to all of the terms and conditions of this Agreement. MDU
Dealer's authorization herein is limited to the solicitation of orders from, and
the promotion of Programming to, Qualifying Subscribers at MDU Buildings unless
EchoStar, in its sole discretion, specifically agrees in writing to permit MDU
Dealer to solicit orders from, or promote Programming to, others.
2.2 TERRITORY. MDU Dealer is only authorized, and shall limit its
actions, to the promotion in the Territory of, and solicitation of orders in the
Territory for, Programming in the packages (or a-xx-xxxxx for the Programming
shown in Exhibit A as available on an a-xx-xxxxx basis), and at the prices
shown in Exhibit A.
2.3. ACCEPTANCE. MDU Dealer accepts its appointment as an Authorized
MDU Dealer. MDU Dealer understands that it may hold itself out to the public as
an Authorized MDU Dealer of EchoStar only after fulfilling, and for so long as
it continues to fulfill, all of the requirements in this Agreement, and only
during the Term of this Agreement.
2.4 ***
2.5 ***
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
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2.6***
3. PROGRAMMING
3.1 PROGRAMMING. EchoStar, in its sole discretion, shall determine
the Programming for which MDU Dealer may solicit orders, as set forth in Exhibit
A. EchoStar may expand, reduce or otherwise modify Exhibit A and the content of
any packages at any time and from time to time in its sole discretion; provided
that any such modification or reduction must be consistent with a modification
or reduction then being made to the programming being provided to other EchoStar
customers at MDU Buildings receiving similar programming packages. Any changes
shall be effective (and Exhibit A shall be deemed modified) on the date
designated by EchoStar by written notice to MDU Dealer. EchoStar agrees that
when it is able to do so it will use commercially reasonable efforts to provide
MDU Dealer with at least 45 days prior written notice of any changes to any
Programming packages or channel lineups.
3.2 CHANGES. If at any time or for any reason EchoStar changes the
content of any programming package, MDU Dealer's authority to solicit orders for
the prior Programming package shall cease immediately upon notice from EchoStar.
3.3 MDU PROGRAMMING ONLY. With respect to Qualifying Subscribers, MDU
Dealer shall not solicit orders for Programming except for Programming which is
specifically designated and authorized by EchoStar for reception at MDU
Buildings. MDU Dealer shall not be entitled to any commission for Programming
which has been ordered for any location other than a MDU Building, and shall
immediately pay EchoStar the dollar amount of all Programming ordered in
violation of this Section at the then applicable rate. MDU Dealer or Qualifying
Subscribers may order any one or more separate Programming or Programming
packages set forth on Exhibit A, as same may be amended.
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH
THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
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3.4 ADDITIONAL RESTRICTIONS AND OBLIGATIONS OF MDU DEALER. MDU Dealer
shall not resell, retransmit, or rebroadcast any Programming except as
specifically contemplated under this Agreement. MDU Dealer shall further ensure
that no MDU Building owner or operator engages directly or indirectly in: (a)
the reselling of Programming; (b) the retransmission or rebroadcast of
Programming, except as contemplated by this Agreement; or (c) modifying, adding
to, or deleting from any of the Programming.
3.5 DEACTIVATION. EchoStar, shall deactivate the DISH DBS Receiver of
any Subscriber Account (a "Deactivation") at MDU Dealer's written instruction
(or e-mail or other electronic message if received by EchoStar). EchoStar shall
not otherwise deactivate a receiver or discontinue or refuse to provide ordered
Programming to any Qualifying Subscriber except in the event of a default as
described in Section 9.3 below or in the event a Qualifying Subscriber no longer
meets the definition of a Qualifying Subscriber set forth in Section 1.7 above.
MDU Dealer understands and acknowledges that a Deactivation will disable the
reception of all programming received through the DISH DBS Receiver, including
EchoStar Programming, and MDU Dealer hereby forever waives and releases EchoStar
from any and all claims related to, or arising out of a Deactivation, including
but not limited to claims relating to the loss of revenue from programming or
the sale, rental or lease of a DISH DBS Receiver.
4. PRICES AND PAYMENT.
4.1***
4.2***
5. COMMISSIONS.
5.1*** RESIDUAL COMMISSIONS.
5.1.2***
5.2***
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE
COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
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5.3***
5.4***
5.5***
5.6***
6. USE OF INDEPENDENT CONTRACTORS: PROGRAMMING ORDERS.
6.1 If MDU Dealer uses independent contractors, sub-agents, or other persons
or entities not employed by MDU Dealer to perform activities contemplated
hereunder, MDU Dealer shall be responsible for the acts and omissions of such
persons under this Agreement to the same extent it is responsible for the acts
and omissions of its own employees.
6.2 MDU Dealer shall not sell Programming under any circumstances. All sales
of Programming are transactions directly between EchoStar and Qualifying
Subscribers. MDU Dealer also agrees that it shall not charge subscribers more
than the then applicable retail price (i.e., the prices specified in Section 4.1
above, as such prices may be modified as provided in Section 4.1) for any
Programming.
6.3 MDU Dealer shall forward to EchoStar all orders for Programming in the
manner prescribed herein. EchoStar shall accept all such orders for Qualifying
Subscribers and activate the ordered Programming in accordance with, and subject
to, the terms and conditions of this Agreement. MDU Dealer shall use reasonably
commercial efforts to ensure that all residents of any MDU Building served by
MDU Dealer shall contact MDU Dealer and not EchoStar (a) to initiate, add,
delete or cancel receipt of any Programming except EchoStar pay-per-view, (b)
for any maintenance or service of, or problems or concerns with, their DISH DBS
Receiver or other portion of any MDU System equipment, and (c) for any questions
concerning reception, rates, billing or collection. To order Programming, MDU
Dealer shall complete and send a complete and accurate "DBS Service Request
Form" in the form of the attached Exhibit D (which exhibit may be changed by
EchoStar from time to time upon notice to MDU Dealer, but shall always include
the name, address, and telephone number of each requested subscriber) to
EchoStar, Attn: EchoStar Commercial Activations, by facsimile (Fax No.:
800/000-0000, or as otherwise specified by EchoStar from time to time), mail or
express delivery service. EchoStar will input all subscriber information and
will use commercially reasonable efforts to set up Subscriber Accounts for
Qualifying Subscribers for which satisfactory DBS Service Request Forms are
received by EchoStar: (i) before 12:00 noon, Mountain Time, by the close of
business on the day of receipt, and (ii) after noon MST, by the close of
business on the next business day. EchoStar Commercial Activation's hours of
operation are currently 7:00 a.m. to 7:00 p.m., Mountain Time, Monday through
Friday (except during holidays). At the time MDU Dealer installs a DISH DBS
Receiver at a Qualifying Subscriber's residence, MDU Dealer's technician shall
telephone EchoStar's call center to request activation of Programming.
EchoStar's call center is currently open to receive such requests 24 hours per
day, 7 days per week (excluding standard holidays). EchoStar's call center shall
use commercially reasonable efforts to activate Programming and authorize the
Qualifying Subscriber's assigned "Smart Card" while the MDU Dealer technician is
present at the Qualifying Subscriber's residence (i.e., within 30 minutes after
MDU Dealer's technician's call) so that the MDU Dealer technician can confirm
proper installation and activation. MDU Dealer shall also send all instructions
to add, delete, cancel or otherwise modify any Programming for an existing
Qualifying Subscriber to EchoStar Commercial Activations, which instructions
EchoStar shall use commercially reasonable efforts to effect within one business
day of receipt of MDU Dealer's instructions. See Exhibit C attached hereto for
EchoStar's current procedures pertaining to Programming orders, activation,
modification and cancellation. MDU Dealer agrees to promptly notify EchoStar in
writing of any change, with respect to DISH DBS Receivers, in the name, address,
or telephone number of the Qualifying Subscriber receiving Programming through
such receiver.
6.4 MDU Dealer shall cooperate reasonably when requested by EchoStar to
notify Qualifying Subscribers of information pertaining to the Programming;
provided however, that MDU Dealer shall be solely liable for the failure to
follow any such request.
7. TRADEMARK LICENSE AGREEMENT. MDU Dealer shall sign the Trademark License
Agreement, in the form attached as Exhibit E hereto, which agreement is hereby
incorporated by reference in its entirety.
8. CONDUCT OF BUSINESS.
8.1 SIGNAL THEFT MDU Dealer shall not directly or indirectly: (i) engage in
any signal theft, piracy or similar activities; (ii) alter any DISH DBS
Receivers or "Smart Cards", MDU Systems, or any other equipment compatible with
programming delivered by EchoStar or any of its Affiliates to be capable of
signal theft (or for any other reason without the express written consent of
EchoStar);
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE
COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
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(iii) sell any equipment altered to permit signal theft or other piracy; or (iv)
aid any others in engaging in any of the above described activities. MDU Dealer
shall immediately notify EchoStar if it becomes aware of any such activity.
8.2 HARDWARE EXPORT RESTRICTIONS. MDU Dealer agrees that it will not
engage directly or indirectly in the export or sale outside of the Territory, of
DISH DBS Receivers or Programming in whole or in part.
9. TERM, DISPUTE RESOLUTION AND TERMINATION.
9.1 TERM. This Agreement shall commence on the date of execution by
both parties and shall continue until December 31, 2001 (the "Term") unless and
until terminated by either party in accordance with the terms and conditions of
this Agreement. The Term of this Agreement shall automatically renew for
additional terms of one (1) year each unless either party provides the other
with written notice at least twelve (12) months prior to the expiration of the
Term or renewal term, as the case may be, or its desire for this Agreement not
to renew. Notwithstanding the expiration of the Term or any renewal Term, for a
period of twelve (12) months following the expiration of this Agreement (i.e.,
the expiration of the Term or any renewal term, as the case may be) EchoStar
shall continue to offer Programming and DISH DBS Receivers pursuant to this
Agreement for all MDU Buildings being served by MDU Dealer on the date of
expiration of this Agreement, including activation of new Qualifying Subscribers
at such MDU Buildings and modifications and cancellations of service.
Notwithstanding anything to the contrary in this Agreement, at any time after
December 31, 2001 during any renewal Term, either party may terminate this
Agreement upon 120 days prior written notice to the other party.
9.2***
9.3***
9.4***
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
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9.5***
10. INDEPENDENT CONTRACTOR. The relationship of the parties hereto is that of
independent contractors. Each party shall conduct its business as an independent
contractor, and all persons employed by a party in the conduct of its business
shall be that party's employees only, and not employees or agents of the other
party. Each party represents that it is not dependent on the other for a major
part of its business. It is further understood and agreed that each party has no
right or authority to make any representation, promise or agreement on behalf of
the other except for such representations, promises, or agreements as the other
shall specifically, in writing, authorize. Any such inconsistent or additional
warranty or representation made by a party shall constitute a breach of, and
serve as grounds for termination of this Agreement pursuant to Section 9.3.
11. LIMITATION OF LIABILITY. The provisions of this Section 11 shall survive
termination or expiration of this Agreement indefinitely. IN NO EVENT SHALL
EITHER PARTY OR ANY AFFILIATE OF EITHER PARTY BE LIABLE FOR ANY EXEMPLARY,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE OTHER (INCLUDING WITHOUT
LIMITATION, ANY PAYMENT FOR LOST BUSINESS, FUTURE PROFITS, LOSS OF GOODWILL,
REIMBURSEMENT FOR EXPENDITURES OR INVESTMENTS MADE OR COMMITMENTS ENTERED INTO,
CREATION OF CLIENTELE, ADVERTISING COSTS, TERMINATION OF EMPLOYEES OR EMPLOYEES
SALARIES, OVERHEAD OR FACILITIES INCURRED OR ACQUIRED BASED UPON THE BUSINESS
DERIVED OR ANTICIPATED UNDER THIS AGREEMENT), WHETHER FORESEEABLE OR NOT, CLAIMS
UNDER DEALER TERMINATION, PROTECTION, NON-RENEWAL OR SIMILAR LAWS, FOR ANY CAUSE
WHATSOEVER WHETHER OR NOT CAUSED BY THE OTHER PARTY'S NEGLIGENCE. IN NO EVENT
SHALL ANY PROJECTIONS OR FORECASTS BY EITHER PARTY BE BINDING AS COMMITMENTS OR
PROMISES BY SUCH PARTY. THE FOREGOING LIMITATIONS OF LIABILITY CONTAINED IN THIS
SECTION SHALL NOT APPLY TO A PARTY'S BREACH OF THE COVENANTS SET FORTH IN
SECTION 13 REGARDING CONFIDENTIALITY OR A BREACH OF THE TRADEMARK LICENSE
AGREEMENT ATTACHED HERETO AS EXHIBIT E. Each party agrees that in the event of
termination of this Agreement for any reason, no amounts spent in its
fulfillment or other consequential damages will be recoverable from the other
party or any of its Affiliates.
12.1 INDEMNIFICATION. ***
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
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12.2***
13. CONFIDENTIALITY.
13.1 GENERAL. At all times during the term of this Agreement and for
a period of three (3) years thereafter, each party and its employees will
maintain, in confidence, the terms and provisions of this Agreement, as well as
all customer or subscriber lists, marketing information and reports, forecasts,
business plans, data, summaries, reports or information of all kinds, whether
oral or written, acquired, devised or developed in any manner from the other
party's personnel or files, or as a direct or indirect result of such party's
actions or performance under this Agreement, and each party represents that it
has not and will not reveal the same to any persons not employed by such party,
except: (i) at the written direction of the other party; (ii) to the extent
necessary to comply with law, the valid order of a court of competent
jurisdiction or the valid order or requirement of a governmental agency or any
successor agency thereto, in which event such party shall notify the other of
the information in advance, prior to making any disclosure, and shall afford the
other party reasonable opportunity to seek confidential treatment of such
information; (iii) as part of its normal reporting or review procedure to its
parent or otherwise affiliated companies, their auditors and attorneys, provided
such affiliates, auditors and attorneys agree to be bound by the provisions of
this paragraph; or (iv) to the extent necessary to permit the performance of
obligations under this Agreement.
13.2***
13.3 REMEDIES. Each party agrees that a breach of these obligations
of confidentiality will result in the substantial likelihood of irreparable harm
and injury to the other party for which monetary damages alone would be an
inadequate remedy, and which damages are difficult to accurately measure.
Accordingly, each party agrees that the other shall have the right, in addition
to any other remedies available, to obtain immediate injunctive relief as well
as other equitable relief allowed by the federal and state courts. The foregoing
remedy of injunctive relief is agreed to without prejudice to the other party's
right to exercise any other rights and remedies it may have, including without
limitation, the right to terminate this Agreement and seek damages or other
legal or equitable relief. The foregoing confidentiality obligations will
survive termination of this Agreement.
14. MISCELLANEOUS.
14.1 WAIVER. The failure of any party to insist upon strict
performance of any provision of this Agreement shall not be construed as a
waiver of any subsequent breach of the same or similar nature. All rights and
remedies reserved to either party shall be cumulative and shall not be in
limitation of any other right or remedy which such party may have at law or in
equity.
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
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14.2 ATTORNEY FEES. In the event of any suit or action to enforce or
interpret this Agreement or any provision thereof, the prevailing party shall be
entitled to recover its costs, expenses and reasonable attorney fees, both at
trial and on appeal, in addition to all other sums allowed by law.
14.3 SUCCESSOR INTERESTS; ASSIGNMENT. This Agreement is binding upon
the heirs, legal representatives, successors and assigns of EchoStar and MDU
Dealer. Either party may assign this Agreement to an Affiliate in whole or in
part at any time without the consent of the other, provided however that the
assigning party remains liable for all of its obligations under this Agreement.
Other than as provided above, this Agreement shall not be assigned by either
party without the prior written consent of the other party. For purposes of this
subsection, an "Affiliate" shall include, without limitation, any person or
entity succeeding to substantially all of the assets of a party by way of asset
purchase, merger, consolidation or otherwise; provided, however, without
EchoStar's prior written consent, an "Affiliate" may not include any entity
engaged in the direct broadcast satellite (DBS) business.
14.4 CHOICE OF LAW AND EXCLUSIVE JURISDICTION.
14.4.1 The relationship between the parties including all
disputes and claims, whether arising in contract, tort, or under statute, shall
be governed by and construed in accordance with the laws of the State of
Colorado without giving any effect to its conflict of law provisions.
14.4.2 Any and all disputes arising out of, or in connection
with, the interpretation, performance or the nonperformance of this Agreement or
any and all disputes arising out of, or in connection with, transactions in any
way related to this Agreement and/or the relationship between the parties
(including but not limited to the termination of this Agreement or the
relationship and either party's rights thereunder or disputes under rights
granted pursuant to statutes or common law, including those in the state in
which MDU Dealer is located) shall be litigated solely and exclusively before a
state or federal court situated in the State of Colorado. The parties consent to
the in personam jurisdiction of said court for the purposes of any such
litigation, and waive, fully and completely, any right to dismiss and/or
transfer any action pursuant to 28 U.S.C.S. 1404 or 1406 (or any successor
statute).
14.5 SEVERABILITY. The parties agree that each provision of this
Agreement shall be construed as separable and divisible from every other
provision and that the enforceability of any one provision shall not limit the
enforceability, in whole or in part, of any other provision hereof. In the event
that a court of competent jurisdiction determines that any term or provision
herein, or the application thereof to any person, entity, or circumstance, shall
to any extent be invalid or unenforceable, the remaining terms and provisions of
this Agreement shall not be affected thereby, and shall be interpreted as if the
invalid term or provision were not a part hereof.
14.6 ENTIRE AGREEMENT. This Agreement sets forth the entire, final
and complete understanding between the parties hereto relevant to the subject
matter of this Agreement, and it supersedes and replaces all previous
understandings or agreements, written, oral, or implied, relevant to the subject
matter of this Agreement made or existing before the date of this Agreement.
Except as expressly provided by this Agreement, no waiver or modification of any
of the terms or conditions of this Agreement shall be effective unless in
writing and signed by both parties.
14.7 COMPLIANCE WITH LAW. The parties shall comply with, and agree
that this Agreement is subject to, all applicable federal, state, and local
laws, rules and regulations, and all amendments thereto, now enacted or
hereafter promulgated in force during the term of this Agreement.
14.8 FORCE MAJEURE. Notwithstanding anything to the contrary in this
Agreement, neither party shall be liable to the other (nor shall an event of
default hereunder be deemed to exist) for failure to fulfill its obligations
hereunder if such failure is caused by or arises out of an act of force majeure
including acts of God, war, riot, natural disaster, technical failure beyond
such party's reasonable control (including the failure of all or part of the
communications satellite, or transponders on which the programming is delivered
to Qualifying Subscribers, or of the related uplinking or other equipment, or
failure of the signal from a programmer supplying EchoStar with the
Programming), or any other reason beyond the reasonable control of such party.
This subsection shall not apply to an obligation by either party for the payment
of money.
14.9 REMEDIES CUMULATIVE. It is agreed that the rights and remedies
herein provided in case of default or breach by a party of this Agreement are
cumulative and shall not affect in any manner any other remedies that the other
party may have by reason of such default or breach by such party. The exercise
of any right or remedy herein provided shall be without prejudice to the right
to exercise any other right or remedy provided herein, at law, or in equity.
14.10 GENERAL PROVISIONS. The terms and conditions attached as
exhibits hereto are fully incorporated into and made a part of this Agreement.
14.11 NOTICES. Any notice required or permitted to be delivered
hereunder shall be in writing and shall be deemed to be delivered (i) upon first
attempted delivery (whether actually received or not) when postmarked by the
U.S. Postal Service, postage prepaid, registered or certified mail, return
receipt requested, or (ii) when delivered by courier or express mail where
evidence of delivery is retained, addressed to the parties at their respective
mailing addresses set forth in the first paragraph of this Agreement, or at such
other address as they have at least ten days theretofore specified by written
notice delivered in accordance herewith.
14.12 YEAR 2000 COMPLIANCE. Each party shall use commercially
reasonable efforts to ensure that: (i) the services and products used to perform
its obligations hereunder, are or will be year 2000 compliant, and (ii) any
failure of the services or products to properly operate during and after the
calendar year 2000 A.D. relating to date data which represents or references
different centuries
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or more than one century will be corrected, repaired, or replaced (at such
party's option), notwithstanding anything to the contrary in Sections 2.5.2 and
2.6, as soon as possible after detection at such party's sole cost.
14.13 SURVIVAL. All provisions of this Agreement shall survive
termination for a time which is reasonable under the circumstances, regardless
of whether or not such provision is explicitly stated to survive.
14.14 NO PARTNERSHIP. Nothing herein contained shall be construed to
create any partnership or joint venture between the parties.
By signing below, MDU Dealer hereby indicates its acceptance of the
terms of, and agreement to, this Agreement.
Approved by:
ECHOSTAR SATELLITE CORPORATION TVMAX TELECOMMUNICATIONS, INC.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------------- -------------------------------
Title: Executive Vice President Title: President & CEO
------------------------------ ----------------------------
Date: January 14, 1999 Date: January 13, 1999
------------------------------- -----------------------------
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EXHIBIT A
DISH NETWORK
PROGRAMMING PACKAGES
ECHOSTAR I AND II
AMERICA'S TOP 40
----------------------------------------------------------
$19.99 PER MONTH
$220.00 PER YEAR
==========================================================
A&E History Channel (The)
America's Voice Home & Garden TV
Angel One Home Shopping Network
Cartoon Network (The) Learning Channel (The)
CNBC Lifetime
CNN MTV
Comedy Central Nashville Network (The)
Country Music Television Nickelodeon (East)
Court TV Nickelodeon (West)
C-SPAN Nick at Nite (East)
C-SPAN2 Nick at Nite (West)
Discovery Channel Nick at Nite's TV Land
Disney Channel (East) QVC
Disney Channel (West) Sci-Fi Channel
E! Entertainment TBN
ESPN TBS
ESPN2 TNT
ESPNEWS Travel Channel (The)
EWTN USA Network
Food Network VH1
FOX Family Channel Weather Channel (The)
Headline News
----------------------------------------------------------
--------------------------------------------------------------------------------
AMERICA'S TOP 100 CD
$28.99 PER MONTH
$320.00 PER YEAR
--------------------------------------------------------------------------------
AMERICA'S TOP 40
PLUS
AMC WGN Country Currents CD
Animal Planet ZDTV Easy Instrumentals CD
BBC America (1) FOX/SportsChannel Regional Network Eurostyle CD
Black Entertainment Television (BET) Fiesta Mexicana CD
Bravo Hot Hits CD
Classic Sports CD Channels Jazz Traditions CD
CNNFN/CNNI 70s Songbook CD Jukebox Gold CD
CBS Eye on People Adult Alternative CD Kidtunes CD
F/X Adult Contemporary CD Latin Styles CD
Galavision Adult Favorites CD LDS Radio Network CD
Game Show Network Americana CD Light Classical CD
Independent Film Channel Big Band Era CD Modern Rock Alternative CD
M2 Blues CD New Age CD
MSNBC Classic Rock CD New Country CD
Noggin (Available January 1999) Concert Classics CD Non-Stop Hip Hop CD
Romance Classics Contemporary Christian CD Power Rock CD
Toon Disney Contemporary Instrumentals CD Reggae XX
Xxxxxx Classic Movies Contemporary Jazz CD Urban Beat CD
Univision Country Classics CD
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12
DISH NETWORK
PROGRAMMING PACKAGES
ECHOSTAR I AND II
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DISH PIX PACKAGE PPV
$15.00 PER MONTH
NO ANNUAL AVAILABLE
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A package of 10 channels - NO A LA CARTE AVAILABLE DISH on Demand Prices beginning at $2.99
Choose from services available in AT 40, AT 100 CD or Superstations (excluding 12 Channels
Disney Channel, Toon Disney, Regional Sports Networks, MTV, M2, Nickelodeon,
VH1, Nick At Nite's TV Land, FX, Romance Classics, IFC, Galavision, Univision,
BBC America and ZDTV, Outdoor Channel)
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INTERNATIONAL SERVICES SPANISH LANGUAGE PACKAGE
A LA CARTE $4.99 PER MONTH
$59.88 PER YEAR
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RAI: $ 9.99 per month or $119.88 per year Includes the following 3 services:
Fox Sports Americas
ANTENNA: $14.99 per month or $179.88 per year Telemundo
HTV
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COMBINATION SUPERSTATION/BROADCAST NETWORKS PREMIUM SERVICES
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Choose Any One: $4.99 per month or $59.88 per year Choose One Premium Pkg: $10.99 per month or
$121.00 per year
Choose Any Two: $7.99 per month or $95.88 per year Choose Two Premium Pkgs: $19.99 per month or
$220.00 per year
Choose All Three: $9.99 per month or $119.88 per year Choose Three Premium Pkgs: $27.99 per month or
$308.00 per year
Choose Four Premium Pkgs: $34.99 per month or
$385.00 per year
PACKAGES AVAILABLE
PREMIUM PACKAGES AVAILABLE
DISHNETS EAST Package
ABC, CBS, NBC, FOX o HBO Package (6 channels)
PBS - National Network Includes 5 channels of HBO plus HBO Family
DISHNETS WEST Package o Showtime Package (8 channels)
ABC, CBS, NBC, FOX* Includes 3 channels of Showtime plus Showtime
PBS - National Network Extreme, 2 channels of TMC, FLIX and Sundance
Channel
*The West Coast FOX feed available September 1, 1998. o MultiChannel Cinemax (3 channels)
Includes 3 channels of Cinemax
SuperStation Package o Encore/STARZ! (4 channels)
KTLA, KWGN, WPIX, WSBK, WWOR Includes 1 channel of Encore, 2 channels of
Starz! and 1 channel of Encore Westerns
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DISH NETS LOCAL BROADCAST NETWORKS PACKAGES ADDITIONAL SERVICES
$4.99 PER MONTH EACH A LA CARTE
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LOS ANGELES NEW YORK Disney Channel: $9.99 per month
DMA DMA (Both East and West)
ABC - KABC ABC - WABC The Golf Channel: $4.99 per month or
$59.88 per year
CBS - KCBS CBS - WCBS
NBC - KNBC NBC - WNBC Outdoor Channel: $1.99 month or
$23.88 per year
FOX - KTTV FOX - WNYW
PBS - National PBS - National DISH CD: $4.99 per month or
$59.88 per year
--------------------------------------------------------------------------------
ADULT SERVICES Single Broadcast Networks: $1.50 each
A LA CARTE
--------------------------------------------------------------------------------
MultiSport Package: $4.99 per month or
Playboy: $12.99 per month (must subscribe to AT 100 CD) $59.88 per year
Adult Vision: $5.99 per 90 minute block
TeN $14.95 per month
$164.45 per year
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All prices, packages and programming subject to change
without notice. Updated 12/14/98
13
DISH NETWORK
ECHOSTAR III
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LOCAL NETWORK PACKAGES
$4.99 PER MONTH EACH INTERNATIONAL SERVICES
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ATLANTA BOSTON TV5 (French): $ 9.99 per month
DMA DMA $119.88 PER YEAR
ABC - WSB ABV - WCVB RTPi (Portuguese) $ 4.00 per month
CBS - WGNX CBS - WBZ (must subscribe to AT40 or AT 100) $ 48.00 per year
FOX - WAGA FOX - WFXT
NBC - WXIA NBC - WHDH TV Japan (Japanese) $ 25.00 per month
PBS - NATIONAL PBS - NATIONAL $300.00 per year
TV Polonia (Polish) $ 14.99 per month*
(must also subscribe to 2 Polskie $179.88 per year*
Radio Services)
ART (Arabic) $ 19.99 per month
----------------------------------------------------------------------- ART Movies (Arabic) $239.88 per year
CHICAGO DALLAS LBC (Arabic from Lebanon)
DMA DMA (these three services sold only
as a package/no a la carte available)
ABC - WLS ABC - WFAA
CBS - WBBM CBS - KTVT ZEE TV (Hindi) $ 14.99 per month
FOX - WFLD FOX - KDFW $ 179.88 per year
NBC - WMAQ NBC - KXAS
PBS - NATIONAL PBS - NATIONAL TV Asia (Hindi/English/Gujarati) $ 14.99 per month
$179.88 per year
ZEE TV and TV Asia Package $ 24.99 per month
$299.88 per year
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MIAMI NEW YORK INTERNATIONAL RADIO SERVICES
DMA DMA -----------------------------------------------------------
RFI: $ 1.00 per month
ABC - WPLG ABC - WABC (Radio France Internationale) $12.00 per year
CBS - WFOR CBS - WCBS
FOX - WSVN FOX - WNYW Polskie Radio Program 1 $ 4.99 month*
NBC - WTVJ NBC - WNBC Polskie Radio Program 3 $59.88 per year*
PBS - NATIONAL PBS - NATIONAL (must subscribe to the 2 Polskie
Radio and I TVPolonia video services)
Radio Xxxxx Italy (Italian) $ 5.00 per month
$55.00 per year
Radio Xxxxx Xxxxxx (Polish) $ 5.00 per month
$55.00 per year
Radio Xxxxx Spanish $ 5.00 per month
$55.00 per year
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PITTSBURGH WASHINGTON, D.C. A LA CARTE
DMA DMA ------------------------------------------------------------
NASA Channel Free Access
ABC - WTAE ABC - WJLA
CBS - KDKA CBS - WUSA Bloomberg $ 1.50 per month
NBC - WPXI FOX - WTTG $18.00 per year
FOX - WPGH NBC - WRC
PBS - National PBS - NATIONAL -----------------------------------------------------------
PPV
-----------------------------------------------------------
Dish on Demand Prices beginning at $2.99
5 Channels
*Must subscribe to 1 TVPolonia video and 2 Polskie Radio Services
All prices, packages and programming subject to change without notice. Updated 12/14/98
-----------------------------------------------------------------------------------------------------------------------------------
14
DISH NETWORK
ECHOSTAR IV
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INTERNATIONAL SERVICES
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DENVER PHOENIX TV Japan (Japanese) $ 25.00 per month
DMA DMA $300.00 per year
ABC - KMGH ABC - KNXV ART (Arabic) $ 19.99 per month
CBS - KCNC CBS - KPHO ART Movies (Arabic) $239.88 per year
NBC - KUSA NBC - KPNX LBC (Arabic from Lebanon)
FOX - KDVR FOX - KSAZ (these three services sold only
PBS - NATIONAL PBS - NATIONAL as a package/no a la carte
available)
--------------------------------------------------------------------------------
ZEE TV (Hindi) $ 14.99 per month
SALT LAKE CITY SAN FRANCISCO $ 179.88 per year
DMA DMA TV Asia (Hindi/English/Gujarati) $ 14.99 per month
ABC - KTVX ABC - KGO $ 179.88 per year
CBS - KUTV CBS - KPIX ZEE TV and TV Asia Package $ 24.99 per month
NBC - KSL NBC - XXXX $ 299.88 per year
FOX - KSTU FOX - KTVU
PBS - NATIONAL PBS - NATIONAL
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PPV A LA CARTE
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DISH on Demand Prices beginning at $2.99 Bloomberg $1.50 per month
5 Channels $ 18.00 per year
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All prices, packages and programming subject to change without notice. Updated 12/14/98
15
EXHIBIT B
BILLING AND PAYMENT TERMS AND CONDITIONS
***
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
16
***
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE
COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
17
EXHIBIT C
PROGRAMMING ORDERS AND ACTIVATION
***
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE
COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
18
Today's Date: Your company Dealer Rec
------- xxxxxxxxxxxxxx
Est. Final Activation Date: #
------
OpTel - DISH Network
DBS Service Request Form
Exhibit D to MDU Dealer Agreement
1. PLEASE CHECK THE COMMERCIAL PROPERTY TYPE THAT APPLIES:
Hotel Hospital Condo MHP Other Bulk Nun Retirement Home
-------- --------- --------- ---------- --------------------------
***
3. PROPERTY INFORMATION: 4. BILLING INFORMATION:
PROPERTY NAME: COMPANY NAME
-------------------------------------------------- --------------------------------------------------
ADDRESS MAILING ADDRESS
-------------------------------------------------- --------------------------------------------------
-------------------------------------------------- --------------------------------------------------
CITY STATE CITY STATE
-------------------------------------------------- --------------------------------------------------
ZIP CODE ZIP CODE
-------------------------------------------------- --------------------------------------------------
TELEPHONE NUMBER: TELEPHONE NUMBER:
-------------------------------------------------- --------------------------------------------------
GENERAL CONTACT: FAX NUMBER:
-------------------------------------------------- --------------------------------------------------
BILLING CONTACT:
--------------------------------------------------
TOTAL NUM. OF UNITS @ SITE: TECHNICAL CONTACT:
-------------------------------------------------- --------------------------------------------------
MARKETING CONTACT:
--------------------------------------------------
5.*** 6. TOTAL NUMBER OF RECEIVERS
Total Number of Services Requested:
--------------------------------------------------
(taken from the attached Activation Form)
Multiply this # by the figure in Schedule A of the
7. TOTAL DUE: (from #4 & #5 above) Attachment to the Affiliate Agreement.
$ X $7.00 X 12 = #VALUE!
-------------------------------------------------- ---------------------------------------------------
SERVICE DSR RECEIVER NO. DSR SMART CARD NO
(include e or w) Example: R009912345 (11 digits) S0000123456 (11 digits)
---------------- ------------------------------- -----------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
--------------- ------------------------------------ -------------------------------------------
OpTel
-----------------------------------------------------------------
Signature
-----------------------------------------------------------------
Type Name and Title
-----------------------------------------------------------------
Page 1 of _______
ECHO FAX: 000-000-0000
Voice: 800-454-0843
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE
COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
19
EXHIBIT E
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (the "Agreement") is effective
as of the ____________ day of ___________________________, 1999, by and between
EchoStar Satellite Corporation having a principal place of business at 0000
X. Xxxxx Xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("EchoStar"), and TVMAX
Telecommunications, Inc., d/b/a OpTel, having a principal place of business at
0000 Xxxx Xxxxxxxxxxx Xxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attn: Vice
President - Marketing ("Licensee").
A. ESC conducts business in worldwide locations as, among other
things, a provider of direct broadcast satellite-delivered, multi-channel,
digital audio and video services ("Programming") to commercial subscribers;
and
B. Licensee conducts business as, among other things, an MDU Dealer
of satellite television products and services to commercial subscribers;
and
C. Licensee desires to be permitted to use the EchoStar trademarks,
service marks and trade names set forth in Exhibit A hereto, as amended
from time to time in ESC's sole discretion (the "Trademarks") as ESC, in
its sole discretion, may authorize, from time to time, under a
non-exclusive license, to promote and solicit orders for DISH Network
Programming.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1.***
2. The License granted by ESC is granted to Licensee only. Licensee
has no authority to transfer or grant any sublicense to any other entity or
individual (except for any subsidiary or affiliated entity through which
MDU Dealer, in accordance with Section 6.1 of the MDU Dealer Agreement, may
provide programming to an MDU Building (as defined in the MDU Dealer
Agreement), which entity shall also be bound by the restrictions, terms and
conditions contained herein) for any reason, and if Licensee does so, such
action shall terminate the License granted herein, at ESC's option, at any
time thereafter. Licensee shall immediately cease using Trademarks upon
termination or expiration of this Agreement for any reason. Upon expiration
or termination of this Agreement, at ESC's option Licensee shall
immediately destroy or deliver to ESC any and all advertising and
promotional materials in Licensee's possession with Trademarks on them. If
ESC requests destruction of advertising and promotional materials, Licensee
shall promptly execute an affidavit representing at a minimum that such
materials were destroyed, and the date and means of destruction.
3. Licensee expressly recognizes and acknowledges that the License,
as well as any past use of the Trademarks in any manner whatsoever by
Licensee (including but not limited to use on signs, business cards, or in
advertisements), shall not confer upon Licensee any proprietary rights or
interest to any Trademarks including, but not limited to any existing or
future goodwill in the Trademarks. All goodwill in the Trademarks shall
inure to ESC's sole benefit. Further, Licensee waives any and all past,
present, or future claims it has or might have to the Trademarks, and
acknowledges that as between ESC and Licensee, ESC has the exclusive rights
to own and use the Trademarks, and that ESC retains full ownership of the
Trademarks notwithstanding the License granted herein. While Licensee has
no right or authority to do so, in the event that Licensee has previously,
or in the future reserves, files, or registers any of the Trademarks of
ESC, Licensee agrees to notify ESC immediately, and immediately upon
request of ESC, to assign any and all interest to ESC that is obtained
through the reservation, filing, or registration of the Trademarks in the
U.S. or any foreign jurisdiction, and hereby acknowledges that any such
reservation, filing, or registration of the Trademarks, whenever occurring,
shall be on behalf of and for the sole benefit of ESC, and Licensee waives
all claims or rights to any compensation whatsoever therefor. Licensee's
obligations in this paragraph shall survive the expiration or termination
of this Agreement.
4. Nothing in this Agreement shall be construed to bar ESC from
protecting its right to the exclusive use of its Trademarks against
infringement thereof by any party or parties, including Licensee, either
during the term of this Agreement or following any expiration or
termination
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE
COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
20
of Licensee's right to use the Trademarks pursuant to this Agreement. Licensee
will promptly and fully advise ESC of any use of any xxxx that may appear to
infringe the Trademarks. Licensee will also fully cooperate with ESC in defense
and protection of the Trademarks, at ESC's expense. Similarly, nothing in this
Agreement shall be construed to require that ESC take any action to protect the
Trademarks in any instance, and ESC shall not be liable to Licensee in any
manner whatsoever for failure to take any such action.
5. This Agreement shall continue for a period of time equal to the
term of the MDU Dealer Agreement between ESC and Licensee, unless terminated
earlier for a reason provided herein.
6. Any and all disputes, claims or actions that may arise under or out
of this Agreement shall be governed, interpreted and enforced in accordance with
the laws of the State of Colorado, and shall otherwise be resolved in accordance
with the provisions set forth in Section 14.4 of the MDU Dealer Agreement
between ESC and Licensee, to which this Trademark License Agreement is attached.
7. This Agreement may be executed in two or more counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives as of the day and year first above
written.
ECHOSTAR SATELLITE CORPORATION TVMAX TELECOMMUNICATIONS, INC.
By: [ILLEGIBLE] By: [ILLEGIBLE]
---------------------------------- -------------------------------------
Title: Executive Vice President Title: President & CEO
------------------------------- ----------------------------------
21
EXHIBIT A TO TRADEMARK LICENSE AGREEMENT
[ECHOSTAR LOGO]
[DISH
[NETWORK LOGO]
[DISH LOGO]
