Exhibit 99.4
EXECUTION VERSION
AGREEMENT OF TERMINATION
THIS AGREEMENT OF TERMINATION (this "Agreement") shall be effective
immediately as of June 1, 2004 (the "Effective Date"), between DIRECTV, Inc., a
California corporation ("DIRECTV"), as assignee of Xxxxxx Communications Galaxy,
Inc., Xxxxxx Communications Galaxy, Inc., as predecessor-in-interest ("Xxxxxx"),
and National Rural Telecommunications Cooperative, a District of Columbia
corporation ("NRTC", and together with DIRECTV and Xxxxxx, the "Parties"), with
reference to the following:
WHEREAS, DIRECTV, as assignee of Xxxxxx Communication Galaxy, Inc.,
Xxxxxx, as predecessor-in-interest, and NRTC are parties to that certain DBS
Distribution Agreement dated as of April 10, 1992 (as amended to the date
hereof, including, without limitation, on February 14, 1994, the "DBS
Distribution Agreement");
WHEREAS, in connection with the settlement of the class action
lawsuit brought by North Central Communications and Iowa Lake Electric
Corporation, on behalf of the plaintiff class certified in the United States
District Court for the Central District of California, Case No. CV00-2117, and
NRTC against DIRECTV, Case Nos. CV99-5666, CV99-8672, CV01-0993 and XX00-0000,
XXXX and DIRECTV entered into that certain New DBS Distribution Agreement
pursuant to a Complete Restatement of Amended Term Sheet effective as of August
5, 2003 (the "New DBS Distribution Agreement");
WHEREAS, in connection with and in furtherance of the DBS
Distribution Agreement, DIRECTV and NRTC entered into that certain Trademark
License Agreement dated as of September 12, 1994 (the "Trademark Agreement"),
and pursuant to the terms and conditions thereof, such Trademark Agreement shall
automatically terminate upon the termination, for any reason, of the DBS
Distribution Agreement;
WHEREAS, DIRECTV and NRTC are parties to that certain Second Revised
Seamless Consumer Agreement, dated as of March 10, 2004 (the "Seamless Consumer
Agreement"); and
WHEREAS, pursuant to that certain Memorandum of Agreement dated as
of June 1, 2004, by and between DIRECTV and NRTC (the "Memorandum of
Agreement"), and in consideration for the terms and conditions therein and other
good and valuable consideration received thereby, DIRECTV and NRTC terminated
each of the DBS Distribution Agreement, the New DBS Distribution Agreement, the
Trademark Agreement and the Seamless Consumer Agreement, and, in furtherance
thereof, the Parties desire to confirm and memorialize such termination of each
the DBS Distribution Agreement, the New DBS Distribution Agreement, the
Trademark Agreement and the Seamless Consumer Agreement.
Capitalized terms used, but not otherwise defined herein, shall have
the respective meanings ascribed to such terms in the Memorandum of Agreement.
NOW, THEREFORE, for and in consideration of the premises, terms and
conditions set forth herein, the mutual benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as follows:
1. TERMINATION. Effective as of the date hereof, the Parties hereby
mutually terminate the DBS Distribution Agreement, and NRTC and DIRECTV hereby
mutually terminate each of the New DBS Distribution Agreement, the Trademark
Agreement and the Seamless Consumer Agreement, and such agreements are of no
further force or effect.
2. CERTAIN RIGHTS AND OBLIGATIONS CONTINUE. Notwithstanding the foregoing,
any obligations of NRTC to pay any amounts to DIRECTV and/or obligations of NRTC
to receive payments from DIRECTV, which have accrued prior to the date hereof,
shall survive the termination of the DBS Distribution Agreement, the New DBS
Distribution Agreement, the Trademark Agreement and the Seamless Consumer
Agreement.
3. MISCELLANEOUS.
3.1. LAWS. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF
CALIFORNIA AND ALL ISSUES WITH RESPECT TO THE CONSTRUCTION OF THIS AGREEMENT AND
THE RIGHTS AND LIABILITIES OF THE PARTIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
ITS CONFLICTS OF LAW RULES.
3.2. INTEGRATION. This Agreement, the Memorandum of Agreement and
the other Definitive Agreements referred to in the Memorandum of Agreement
constitute the entire understanding and agreement of the Parties and replace and
supersede all prior agreements, understandings and commitments, written or oral,
between the Parties with respect to each of the DBS Distribution Agreement, the
New DBS Distribution Agreement, the Trademark Agreement and the Seamless
Consumer Agreement.
3.3. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by telecopy, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
3.4. HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall have no effect on the interpretation or
operation hereof.
* * * *
2
IN WITNESS WHEREOF, the undersigned have executed this Agreement of
Termination as of the date first set forth above.
NATIONAL RURAL TELECOMMUNICATIONS COOPERATIVE
/s/ B. R. Xxxxxxxx III
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B. R. Xxxxxxxx III
President and Chief Executive Officer
DIRECTV, INC.
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Executive Vice President and Chief
Financial Officer
XXXXXX COMMUNICATIONS GALAXY, INC.
------------------------
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Senior Vice President and General Counsel
S-1
[Signature page to Agreement of Termination]
