ECHOSTAR SATELLITE L.L.C. AMENDMENT NO.1 TO RETAILER AGREEMENTS
EXHIBIT
10.1
ECHOSTAR
SATELLITE L.L.C.
AMENDMENT
NO.1 TO RETAILER AGREEMENTS
This
amendment No. 1 to Retailer Agreements (the “Amendment”) is made and effective
as of this ___ day of ________________ 2006, by and between EchoStar Satellite
L.L.C., formerly known as EchoStar Satellite Corporation (“EchoStar”), having a
place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
See
World Satellites, having a place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Retailer”).
WHEREAS,
EchoStar and Retailer have entered into an EchoStar Retailer Agreement effective
as of December 31, 2004, as previously amended (the “EchoStar Retailer
Agreeemtne”);
WHEREAS,
EchoStaar and Retailer have entered into a Distributor Retailer Agreement
effective as of January 31, 2006 naming Mid-State Distributing Company Inc.
therein as Distributor, as previously amended (the “Distirbutor Retailer
Agreement”); and
WHEREAS,
the parties wish to amend the EchoStar Retailer Agreement and the Distibutor
Retailer Agreement as described below;
NOW,
THEREFORE, in consideration of the benefits that will accrue to each party
as a
result of the matters described below, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties mutually agree to amend the EchoStar Retailer Agreement and the
Distributor Retailer Agreement as follows:
1.
A
new
Section 3.13 shall be addend to the EchoStar Retailer Agreement and a new
Section 2.14 shall be added to the Distributor Retailer Agreement, in each
case
as follows;
STOREFRONT
LOCATIONS. Subject to and in accordance with the terms and conditions of this
Agreement and the Trademark License Agreement otherwise applicable to the
marketing, promotion and solicitation of orders by Retailer for Residential
Programming and/or the use by Retailer of applicable DISH Network trademarks
in
connection therewith and all applicable Business Rules, Retailer shall at all
times during the Term of this Agreement and at Retailer’s sole and exclusive
cost and expense continuously and actively market, promote and solicit orders
for Residential Programming within each and every retail storefront location
maintained by or on behalf of Retailer and/or any of its Affiliates, including
without limitation through: (i) the provisioning an maintenance at all times
during the Term of this Agreement within the audio/video merchandising area
of
each such location (or other materially and substantially equivalent area,
solely in the event no audio/video are exists in the applicable location) of
a
dedicated placement for the retail display of EchoStar approved point-of-sale
materials and (ii) the continuous, clear, prominent and conspicuous display
of
the DISH Network trade name and logo within each such applicable area and
location.
2.
Except
as
expressly modified herein, this Amendment is not intended to, and does not,
alter amend or modify all or any part of the EchoStar Retailer Agreement or
Distributor Retailer Agreement. The distribution of this Amendment shall not
be
construed as an admission or acknowledgment by EchoStar that any agreement
exists between Retailer and EchoStar, that if an agreement exists, such
agreement is in full force and effect or that Retailer is not in breach or
default thereunder. Nothing contained herein shall serve to revive an EchoStar
Retailer Agreement or Distributor Retailer Agreement that has been terminated
pursuant to Section 10.2, 10.3 or 10.4 thereof. Furthermore, nothing contained
herein shall constitute a waiver by either party of any rights or remedies
they
may have under the terms and conditions of the EchoStar Retailer Agreement
or
the Distributor Retailer Agreement.
3.
All
capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the EchoStar Retailer Agreement or the Distributor Retailer
Agreement, as applicable.
4.
This
Amendment constitutes the entire agreement between the parties with respect
to
the subject matter hereof. The parties specifically acknowledge there are no
unwritten side agreements or oral agreements between the parties which alter,
amend, modify or supplement this Amendment.
5.
RETAILER
AND ECHOSTAR HEREBY REPRESENT, WARRANT, ACKNOWLEDGE AND AGREE THAT: (A) THEIR
INDEPENDENT COUNSEL HAS REVIEWED, OR THEY HAVE BEEN GIVEN A REASONABLE
OPPORTUNITY FOR THEIR INDEPENDENT COUNSEL TO REVIEW (BUT DECLINED SUCH REVIEW),
THIS AMENDMENT; (B) THE TERMS AND CONDITIONS OF THIS AMENDMENT, AND EACH AND
EVERY PARAGRAPH AND EVERY PART HEREOF, HAVE BEEN COMPLETELY AND CAREFULLY READ
BY , AND EXPLAINED TO, THE PARTIES; (C) THE TERMS AND CONDITIONS OF THIS
AMENDMENT ARE FULLY AND COMPLETELY UNDERSTOOD BY EACH PARTY AND EACH PARTY
IS
COGNIZANT OF ALL OF SUCH TERMS AND CONDITIONS AND THE EFFECT OF EACH AND ALL
OF
SUCH TERMS AND CONDITIONS; AND (D) THIS AMENDMENT IS MADE AND ENTERED INTO
VOLUNTARILY BY EACH PARTY, FREE OF UNDUE INFLUENCE, COERCION, DURESS, MENACE
OR
FRAUD OF ANY KIND WHATSOEVER, AND HAS BEEN EXECUTED BY EACH PARTY OF THEIR
OWN
FREE WILL.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
duly authorized representatives as of the date first written above.
ECHOSTAR
SATELLITE L.L.C.
By:
______________________
Name:
Title:
RETAILER
By:
______________________
Name:
Title: