Exhibit 10.38


 




 





 


CREDIT AGREEMENT


 


Dated as of April 9, 2008


 


between


 


GREENLADY II, LLC


 


and


 


BANK OF AMERICA, N.A.


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE I

  	
   

  
	
   

  	
  DEFINITIONS AND
  ACCOUNTING TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.02

  	
  Other Interpretive
  Provisions

  	
  11

  
	
   

  	
   

  	
   

  
	
  1.03

  	
  Accounting Terms

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.04

  	
  Calculation Conventions

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.05

  	
  References to
  Agreements and Laws

  	
  12

  
	
   

  	
   

  	
   

  
	
  1.06

  	
  Times of Day

  	
  12

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE II

  	
   

  
	
   

  	
  THE COMMITMENTS
  AND CREDIT EXTENSIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  The Loans

  	
  13

  
	
   

  	
   

  	
   

  
	
  2.02

  	
  Borrowings

  	
  13

  
	
   

  	
   

  	
   

  
	
  2.03

  	
  Prepayments

  	
  14

  
	
   

  	
   

  	
   

  
	
  2.04

  	
  Termination or
  Reduction of Commitments

  	
  14

  
	
   

  	
   

  	
   

  
	
  2.05

  	
  Repayment of Loans

  	
  14

  
	
   

  	
   

  	
   

  
	
  2.06

  	
  Interest

  	
  15

  
	
   

  	
   

  	
   

  
	
  2.07

  	
  Computation of Interest

  	
  15

  
	
   

  	
   

  	
   

  
	
  2.08

  	
  Averaging Period
  Interest Refund

  	
  15

  
	
   

  	
   

  	
   

  
	
  2.09

  	
  Evidence of Debt

  	
  15

  
	
   

  	
   

  	
   

  
	
  2.10

  	
  Payments Generally

  	
  16

  
	
   

  	
   

  	
   

  
	
  2.11

  	
  Modification of Margin
  Delimited Commitment

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE III

  	
   

  
	
   

  	
  TAXES, YIELD
  PROTECTION AND ILLEGALITY

  	
   

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  17

  
	
   

  	
   

  	
   

  
	
  3.02

  	
  Increased Costs

  	
  18

  
	
   

  	
   

  	
   

  
	
  3.03

  	
  Funding Losses

  	
  18

  
	
   

  	
   

  	
   

  
	
  3.04

  	
  Requests for
  Compensation

  	
  18

  
	
   

  	
   

  	
   

  
	
  3.05

  	
  Survival

  	
  18

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV

  	
   

  
	
   

  	
  CONDITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions to Closing
  Date

  	
  19

  
	
   

  	
   

  	
   

  
	
  4.02

  	
  Conditions to each
  Borrowing

  	
  20

  



 


i

















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE V

  	
   

  
	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence, Qualification and Power; Compliance with
  Laws

  	
  21

  
	
   

  	
   

  	
   

  
	
  5.02

  	
  Authorization; No Contravention

  	
  21

  
	
   

  	
   

  	
   

  
	
  5.03

  	
  Governmental Authorization; Other Consents

  	
  21

  
	
   

  	
   

  	
   

  
	
  5.04

  	
  Binding Effect

  	
  21

  
	
   

  	
   

  	
   

  
	
  5.05

  	
  Litigation

  	
  21

  
	
   

  	
   

  	
   

  
	
  5.06

  	
  No Default

  	
  21

  
	
   

  	
   

  	
   

  
	
  5.07

  	
  Liens

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.08

  	
  Taxes

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.09

  	
  ERISA

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.10

  	
  Subsidiaries

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.11

  	
  Indebtedness

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.12

  	
  Margin Regulations; Investment Company Act

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.13

  	
  Disclosure

  	
  22

  
	
   

  	
   

  	
   

  
	
  5.14

  	
  Compliance with Organization Documents

  	
  23

  
	
   

  	
   

  	
   

  
	
  5.15

  	
  Compliance with Laws

  	
  23

  
	
   

  	
   

  	
   

  
	
  5.16

  	
  Ownership of the Borrower

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  	
   

  
	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Notices

  	
  23

  
	
   

  	
   

  	
   

  
	
  6.02

  	
  Payment of Obligations

  	
  23

  
	
   

  	
   

  	
   

  
	
  6.03

  	
  Preservation of Existence, Etc

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.04

  	
  Compliance with Laws

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.05

  	
  Compliance with Organization Documents

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.06

  	
  Books and Records

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.07

  	
  Use of Proceeds

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.08

  	
  ERISA Matters

  	
  24

  
	
   

  	
   

  	
   

  
	
  6.09

  	
  Collar Agreement Opinion

  	
  24

  



 


ii

















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  	
   

  
	
   

  	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens

  	
  25

  
	
   

  	
   

  	
   

  
	
  7.02

  	
  Investments

  	
  25

  
	
   

  	
   

  	
   

  
	
  7.03

  	
  Indebtedness

  	
  25

  
	
   

  	
   

  	
   

  
	
  7.04

  	
  Fundamental Changes

  	
  25

  
	
   

  	
   

  	
   

  
	
  7.05

  	
  Dispositions

  	
  25

  
	
   

  	
   

  	
   

  
	
  7.06

  	
  Restricted Payments

  	
  25

  
	
   

  	
   

  	
   

  
	
  7.07

  	
  Change in Nature of Business

  	
  26

  
	
   

  	
   

  	
   

  
	
  7.08

  	
  Transactions with Affiliates

  	
  26

  
	
   

  	
   

  	
   

  
	
  7.09

  	
  Burdensome Agreements

  	
  26

  
	
   

  	
   

  	
   

  
	
  7.10

  	
  [Intentionally Omitted.]

  	
  26

  
	
   

  	
   

  	
   

  
	
  7.11

  	
  ERISA Matters

  	
  26

  
	
   

  	
   

  	
   

  
	
  7.12

  	
  Change of Control

  	
  26

  
	
   

  	
   

  	
   

  
	
  7.13

  	
  Lock-Up

  	
  26

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VIII

  	
   

  
	
   

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of Default

  	
  27

  
	
   

  	
   

  	
   

  
	
  8.02

  	
  Remedies Upon Event of Default

  	
  28

  
	
   

  	
   

  	
   

  
	
  8.03

  	
  Application of Funds

  	
  29

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Amendments; Etc

  	
  29

  
	
   

  	
   

  	
   

  
	
  9.02

  	
  Notices and Other Communications; Facsimile Copies

  	
  29

  
	
   

  	
   

  	
   

  
	
  9.03

  	
  No Waiver; Cumulative Remedies

  	
  30

  
	
   

  	
   

  	
   

  
	
  9.04

  	
  Attorney Costs, Expenses and Taxes

  	
  30

  
	
   

  	
   

  	
   

  
	
  9.05

  	
  Indemnification by the Borrower

  	
  31

  
	
   

  	
   

  	
   

  
	
  9.06

  	
  Payments Set Aside

  	
  31

  
	
   

  	
   

  	
   

  
	
  9.07

  	
  Successors and Assigns

  	
  31

  
	
   

  	
   

  	
   

  
	
  9.08

  	
  Confidentiality

  	
  34

  
	
   

  	
   

  	
   

  
	
  9.09

  	
  Set-off

  	
  34

  



 


iii

















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.10

  	
  Lender’s Obligations with respect to Credit Support

  	
  35

  
	
   

  	
   

  	
   

  
	
  9.11

  	
  Interest Rate Limitation 

  	
  35

  
	
   

  	
   

  	
   

  
	
  9.12

  	
  Counterparts

  	
  35

  
	
   

  	
   

  	
   

  
	
  9.13

  	
  Integration; Entire Agreement

  	
  36

  
	
   

  	
   

  	
   

  
	
  9.14

  	
  Survival of Representations and Warranties 

  	
  36

  
	
   

  	
   

  	
   

  
	
  9.15

  	
  Severability

  	
  36

  
	
   

  	
   

  	
   

  
	
  9.16

  	
  Deemed ISDA Master Agreement

  	
  36

  
	
   

  	
   

  	
   

  
	
  9.17

  	
  Collar Agreement Modifications

  	
  37

  
	
   

  	
   

  	
   

  
	
  9.18

  	
  Amendments to Schedules

  	
  37

  
	
   

  	
   

  	
   

  
	
  9.19

  	
  Safe Harbors 

  	
  37

  
	
   

  	
   

  	
   

  
	
  9.20

  	
  Governing Law

  	
  37

  
	
   

  	
   

  	
   

  
	
  9.21

  	
  Waiver of Right to Trial by Jury

  	
  38

  
	
   

  	
   

  	
   

  
	
  9.22

  	
  USA Patriot Act Notice

  	
  38

  



 


iv

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1

  	
   

  	
  Tranche Information

  
	
   

  	
  2

  	
   

  	
  Gradual Repayment

  
	
   

  	
  3

  	
   

  	
  Averaging Period
  Interest Refund

  
	
   

  	
  4

  	
   

  	
  Loan Amount at Maturity
  and Prepayment Amount

  
	
   

  	
  9.02

  	
   

  	
  Lending Office,
  Addresses for Notices

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
   

  	
  Form of Loan Notice

  
	
   

  	
  B.

  	
   

  	
  Form of Note

  
	
   

  	
  C.

  	
   

  	
  Form of Opinion of Borrower’s Counsel

  
	
   

  	
  D.

  	
   

  	
  Form of Opinion of Counsel to Liberty Media
  Corporation

  
	
   

  	
  E.

  	
   

  	
  Form of Pledge Agreement

  
	
   

  	
  F.

  	
   

  	
  Copy of Transaction Acknowledgement

  



 

















 


CREDIT AGREEMENT


 


This CREDIT
AGREEMENT (this “Agreement”) is entered into as of April 9, 2008 by
and between GREENLADY II, LLC, a Delaware limited liability company (together
with its successors and permitted assigns, the “Borrower”), and BANK OF
AMERICA, N.A. (together with its successors and permitted assigns, the “Lender”).


 


The Borrower has
requested that the Lender extend the Loans (as hereinafter defined), and the
Lender is willing to do so on the terms and subject to the conditions set forth
herein.


 


In consideration
of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:


 


ARTICLE I

DEFINITIONS
AND ACCOUNTING TERMS


 


1.01 Defined Terms. As
used in this Agreement, the following terms shall have the meanings set forth
below:


 


“Adjustment
Event” means any event that occurs in respect of the Shares, including any
Adjustment Event (as defined in the applicable Collar Transaction Document),
that results in the Borrower becoming obligated to make any payment under the
applicable Collar Transaction Document or to repay, in whole or in part, any
Loan hereunder.


 


“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. “Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.


 


“Agreement”
has the meaning specified in the introductory paragraph hereof.


 


“Assignment
Conditions” has the meaning specified in Section 9.07(f).


 


“Associated
Person” has the meaning specified in Section 7.13.


 


“Attorney Costs”
means and includes all reasonable fees, expenses and disbursements of any law
firm or other external counsel.


 


“Availability
Period” means, with respect to a Tranche, the period from and including the
Closing Date to and including the first Averaging Date for the Related
Component.


 


“Averaging Date,”
with respect to each Related Component, has the meaning specified in the Collar
Transaction.


 


“Averaging
Midpoint Date” means, with respect to each Tranche, the date set forth for
such Tranche in the sixth column of Schedule 1 hereto.


 

















 


“Averaging
Period Interest Refund” has the meaning specified in Schedule 3
hereto.


 


“Bankruptcy
Code” means the United States Bankruptcy Code, Title 11 of the United
States Code, as amended.


 


“Borrower”
has the meaning specified in the introductory paragraph hereto.


 


“Business Day”
means an Exchange Business Day (as such term is defined in the 1996 ISDA Equity
Derivatives Definitions published by ISDA).


 


“Change in Law”
means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental
Authority.


 


“Change of
Control” means, with respect to any Person, an event or series of events by
which:


 


(a) any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) but
excluding any employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a person or group shall be deemed
to have “beneficial ownership” of all securities that such person or group has
the right to acquire (such right, an “option right”), whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of 25% or more of the voting power of all equity securities of such
Person entitled to vote for members of the board of directors or equivalent
governing body of such Person on a fully-diluted basis (and taking into account
all such securities that such person or group has the right to acquire pursuant
to any option right); or


 


(b) during
any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of such Person cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member
of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors).


 


2

















 


“Closing Date”
means the date on which all the conditions contained in Section 4.01
have been satisfied.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Collar
Agreement” has the meaning specified in the immediately following
definition of “Collar Transaction.”


 


“Collar
Transaction” means (i) the six distinct Components (a) initially
specified in (and defined under) the Transaction Acknowledgement and (b) thereafter
as evidenced by a confirmation entered into between the Lender and the Borrower
subject to an agreement in the form of an ISDA Master Agreement entered into
between the Lender and the Borrower for the purposes of replacing and
superseding the Transaction Acknowledgement (such replacement and superseding
documentation, including any Credit Support Annex subject to such ISDA Master
Agreement, the “Collar Agreement”) and (ii) the Parent Guarantee
entered into in connection therewith.


 


“Collar
Transaction Documents” means the Transaction Acknowledgement until replaced
and superseded by the Collar Agreement and, thereafter, the Collar Agreement.


 


“Collateral”
means all of the “Collateral” referred to in the Collateral Documents and all
of the other property that is or is intended under the terms of the Collateral
Documents to be subject to Liens in favor of the Lender.


 


“Collateral
Account” means the Collateral Account (as such term is defined in the
Pledge Agreement).


 


“Collateral
Documents” means, collectively, the Pledge Agreement, and each of the other
agreements, instruments or documents that creates or purports to create a Lien
in favor of the Lender.


 


“Commitment”
means, with respect to a Tranche, the amount set forth for such Tranche in the
third column of Schedule 1 hereto, as reduced from time to time pursuant
to Section 2.04.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party-or by which it or any of its property is bound.


 


“Control”
has the meaning specified in the definition of “Affiliate.”


 


“Current Market
Value” means, with respect to any item of Collateral, if such item of
Collateral is a security, (i) if quotations are available, the closing
sale price of such security on the preceding Business Day, as appearing on any
regularly published reporting or quotation service selected by Lender, or (ii) if
there is no closing sale price, any reasonable estimate by the Lender of the
market value of such security as of the close of business on the preceding
Business Day or (iii) in connection with one or more Loans the proceeds of
which are used to finance the purchase of such security, the total cost of
purchase (including any commissions charged).


 


3

















 


“Debtor Relief
Laws” means the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.


 


“Default”
means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time, or both, would be an Event of
Default.


 


“Default Rate”
means, for any period for which such rate is calculated, (a) the Reference
LIBOR Rate plus (b) 1% per annum.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.


 


“Dollar”
and “$” mean lawful money of the United States.


 


“Eligible
Assignee” has the meaning specified in Section 9.07(f).


 


“Eligible
Collateral” has the meaning specified in the Pledge Agreement.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).


 


“Event of
Default” has the meaning specified in Section 8.01.


 


“FRB” means
the Board of Governors of the Federal Reserve System of the United States.


 


“Funding Date”
has the meaning specified in Section 2.01(a).


 


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.


 


“Good Faith
Loan Value” means with respect to any item of Collateral, that amount (not
exceeding 100% of the Current Market Value of such item of Collateral, if
applicable) which the Lender determines in the exercise of its sound credit
judgment that it would lend against such item of Collateral without regard to
any of the Borrower’s other assets.


 


4

















 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.


 


“Gradual
Repayment Amount” means, with respect to each Tranche for each Gradual
Repayment Date, the amount calculated for such Tranche and date in accordance
with Schedule 2 hereto.


 


“Gradual
Repayment Date” means, with respect to a Tranche, the Business Day
immediately prior to each Averaging Date for the Related Component.


 


“Gradual
Repayment Notification Date” means, with respect to each Tranche, (i) for
the first Gradual Repayment Date, the Business Day immediately following the
fourth Exchange Business Day (as defined in the 1996 ISDA Equity Derivatives
Definitions), where the specified Exchange (as defined in the 1996 ISDA Equity
Derivatives Definitions) is NASDAQ, preceding the first Gradual Repayment Date
and (ii) for each subsequent Gradual Repayment Date, the Business Day
immediately following the Averaging Date for the related Tranche that
immediately precedes such Gradual Repayment Date.


 


“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing Person in good faith. The
term “Guarantee” as a verb has a corresponding meaning.


 


“Guarantor”
means Liberty Media LLC.


 


“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


 


5

















 


(a)       all obligations of such
Person for borrowed money and all obligations of such Person evidenced by
bonds, debentures, notes, loan agreements or other similar instruments;


 


(b)       all direct or contingent
obligations of such Person arising under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;


 


(c)       net obligations of such
Person under any Swap Contract;


 


(d)       all obligations of such
Person to pay the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business);


 


(e)       indebtedness (excluding
prepaid interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;


 


(f)        capital leases and
Synthetic Lease Obligations; and


 


(g)       all Guarantees of such
Person in respect of any of the foregoing.


 


For all purposes
hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.


 


“Indemnified
Liabilities” has the meaning specified in Section 9.05.


 


“Indemnitees”
has the meaning specified in Section 9.05.


 


“Initial Loans”
has the meaning specified in Section 2.01(b).


 


“Interpolated
Zero Coupon Swap Rate” means the discount rate or interest rate, as
applicable, determined by the Lender by reference to the Reference LIBOR Rate
(and any other commercially reasonable factors that the Lender may deem
appropriate).


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance
or capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person, or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of assets of another Person that constitute a
business unit. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.


 


“Investment
Company Act” means the Investment Company Act of 1940.


 


6














 


“IRS” means
the United States Internal Revenue Service.


 


“ISDA”
means the International Swaps and Derivatives Association, Inc.


 


“ISDA Master
Agreement” means the printed form of the 1992 ISDA Master Agreement
(Multicurrency - Cross Border), including any Credit Support Annex subject
thereto, as published by ISDA.


 


“Issuer”
means The DIRECTV Group, Inc., a Delaware corporation, and its successors.
The term “Issuer” shall also include the issuer of any shares that holders of
the shares of The DIRECTV Group, Inc. or any successors thereto receive as
a result of a spinoff, recapitalization, merger, consolidation or other
corporate action of such Person.


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority.


 


“Lender”
has the meaning specified in the introductory paragraph hereto.


 


“Lending Office”
means the office or offices of the Lender described as such on Schedule 9.02,
or such other office or offices as the Lender may from time to time notify the
Borrower.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention agreement,
and any financing lease having substantially the same economic effect as any of
the foregoing).


 


“Loan”
means, with respect to a Tranche, each advance made by the Lender to the
Borrower related to such Tranche pursuant to Section 2.01(a).


 


“Loan Amount at
Maturity” has the meaning specified in Schedule 4 hereto.


 


“Loan Documents”
means, collectively, (a) this Agreement, (h) the Notes, (c) the
Collateral Documents, (d) the Collar Transaction Documents and (e) the
Parent Guarantee.


 


“Loan Notice”
means the notice of the borrowing of the Loans pursuant to Section 2.02,
which, if in writing, shall be substantially in the form of Exhibit A.


 


“Managing
Member” means, as to the Borrower, Greenlady Corp. or any successor
Managing Member of the Borrower (as defined in the Organization Documents of
the Borrower).


 


“Margin
Delimited Commitment” means, with respect to each Tranche, the amount set
forth for such Tranche in the last column of Schedule 1 hereto, as
modified from time to time pursuant to Section 2.11.


 


7

















 


“Margin Stock”
has the meaning specified in Regulation U promulgated by the FRB.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual
or contingent), condition (financial or otherwise) or prospects of the
Borrower; (b) a material impairment of the ability of the Borrower to
perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document to which it is a
party.


 


“Maturity Date”
means, with respect to the Loans of any Tranche, the final Gradual Repayment
Date for such Tranche.


 


“Maximum Loan
Value” means:


 


(a)                      with respect
to any item of Collateral consisting of Margin Stock, 50% of the Current Market
Value of such Margin Stock;


 


(b)                     with respect
to any item of Collateral consisting of the Collar Transaction or other puts,
calls or combinations thereof (that are not themselves Margin Stock), $0.00;
and


 


(iii)                   with respect to
any other item of Collateral, its Good Faith Loan Value.


 


“Maximum Rate”
has the meaning specified in Section 9.11.


 


“Member”
means, as to the Borrower, each Member of the Borrower (as defined in the
Organization Documents of the Borrower).


 


“Note”
means any promissory note made by the Borrower in favor of the Lender
evidencing the Loans made by the Lender, substantially in the form of Exhibit B.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, the Borrower arising under any Loan Document or otherwise with
respect to the Loans, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including any interest and fees that accrue after the
commencement by or against the Borrower of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


 


8

















 


“Other Taxes”
has the meaning specified in Section 3.01(b).


 


“Parent
Guarantee” means the Guaranty of the Guarantor in favor of the Lender
related to the Collar Transaction and dated as of April 2,  2008.


 


“Participant”
has the meaning specified in Section 9.07(c).


 


“Participant
Conditions” has the meaning specified in Section 9.07(f).


 


“Pension Plan”
means any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA) that (a) is subject to Section 302 or Title IV of ERISA or Section 412
of the Code and (b) is sponsored or maintained by the Borrower or any
ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes,
has an obligation to contribute, or has made contributions at any time during
the immediately preceding five plan years.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) other than a Pension Plan.


 


“Plan Assets”
means assets of any (i) employee benefit plan (as defined in Section 3(3) of
ERISA) subject to Title I of ERISA, (ii) plan (as defined in Section 4975(e)(l) of
the Code) subject to Section 4975 of the Code, or (iii) governmental
plan (as defined in Section 3(32) of ERISA) subject to federal, state or
local laws, rules or regulations substantially similar to Title I of ERISA
or Section 4975 of the Code.


 


“Pledge
Agreement” means the Pledge Agreement executed and delivered on the Closing
Date by the Lender and the Borrower, substantially in the form of Exhibit E.


 


“Prepaid Loan
Amount at Maturity” means, with respect to any prepayment of a Loan
relating to a Tranche, the portion of the related Loan Amount at Maturity being
prepaid pursuant to Section 2.03(a) or 2.03(b).


 


“Prepayment
Amount” has the meaning specified in Schedule 4 hereto.


 


“Proceeds”
means, with respect to a Loan of any Tranche, the amount specified as such in
the related Loan Notice (or in the case of the Initial Loans the amounts
specified as such in Schedule 1 hereto).


 


“Purchased DTV
Shares” means the 78,300,000 Shares purchased by the Borrower on April 2,
2008.


 


“Reference
LIBOR Rate” means, for any period, the rate determined by the Lender, by
linear interpolation if necessary, using the “offer side” U.S. Dollar Swap rate
posted on Bloomberg Financial Markets Page “IYC1 USD S[go], page [go]”
(or any successor or replacement page).


 


9

















 


All percentages
resulting from any calculations or determinations referred to in this
definition will be rounded upwards to the nearest multiple of 1/100 of 1% and
all U.S. dollar amounts used in or resulting from such calculations will be
rounded to the nearest cent (with one-half cent or more being rounded upwards).


 


“Related
Component” means, with respect to each Tranche, the Component (as defined
in the Collar Transaction) having the number set forth opposite such Tranche on
Schedule 1 hereto and having the terms set forth in the Collar Transaction.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of the Borrower or, if the Borrower
does not have officers, the Managing Member of the Borrower (or, if the
Managing Member does not have officers, its managing member).


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other equity
interest of the Borrower, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such capital stock or other equity interest or of any option, warrant or
other right to acquire any such capital stock or other equity interest.


 


“Securities Act”
means the Securities Act of 1933.


 


“Shares”
means the shares of the relevant Issuer(s). The initial Shares are shares of
the common stock of The DIRECTV Group, Inc.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a “Subsidiary” or
to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.


 


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transaction, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by ISDA, any International Foreign Exchange Master Agreement, or any
other master agreement (any such


 


10

















 


master agreement,
together with any related schedules, a “Master Agreement”), including
any such obligations or liabilities under any Master Agreement.


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).


 


“Taxes” has
the meaning specified in Section 3.01(a).


 


“Tranche”
means each of the six tranches listed on Schedule 1 hereto.


 


“Transaction
Acknowledgement” means the Cashless Collar, Transaction Acknowledgement,
dated as of April 2, 2008 and attached as Exhibit F hereto,
among Liberty Media LLC, the Borrower and the Lender and regarding the collared
share option transaction on certain Shares between the Lender and the Borrower.


 


“United States”
and “U.S.” mean the United States of America.


 


1.02              Other Interpretive Provisions. With
reference to this Agreement, any Note and the Pledge Agreement, unless otherwise
specified herein or in such other document:


 


(a)                     The meanings
of defined terms are equally applicable to the singular and plural forms of the
defined terms.


 


(b)                    The words “herein,”
“hereto,” “hereof” and “hereunder” and words of similar
import when used in any document shall refer to such document as a whole,
including schedules and exhibits thereto, and not to any particular provision
thereof.


 


(i)                         Article,
Section, Exhibit and Schedule references are to the document in which such
reference appears.


 


(ii)                      The term “including”
is by way of example and not limitation.


 


(iii)                   The term “documents”
includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in
physical or electronic form.


 


(c)                     In the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including;” the words “to”
and “until” each mean “to but excluding;” and the word “through”
means “to and including.”


 


(d)                    Section headings
herein and in the other documents are included for convenience of reference
only and shall not affect the interpretation of this Agreement or such other
documents.


 


11

















 


1.03              Accounting Terms.


 


(a)                     All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, except as otherwise
specifically prescribed herein.


 


(b)                    If at any time
any change in GAAP would affect the computation of any financial ratio or
requirement set forth in this Agreement, the Pledge Agreement or any Note, and
either the Borrower or the Lender shall so request, the Lender and the Borrower
shall negotiate in good faith to amend such ratio or requirement to preserve
the original intent thereof in light of such change in GAAP (subject to the
approval of the Lender), provided that, until so amended by agreement between
the Borrower and the Lender, (i) such ratio or requirement shall continue
to be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Lender such documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.


 


1.04              Calculation Conventions.


 


(a)                     Any financial
ratios required to be maintained by the Borrower pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).


 


(b)                    With respect
to any interest rate or discount rate based on the Interpolated Zero Coupon
Swap Rate and used for determining any amount herein, the Lender shall make
such adjustments to such rate as are appropriate to reflect continuous
compounding (and not semi-annual, or other method of, compounding) over any
applicable period.


 


(c)                     With respect
to any period to be used in calculating an amount based on the Interpolated
Zero Coupon Swap Rate, such period shall be determined on the basis of a year
with 365.25 days.


 


1.05              References to Agreements and Laws. Unless
otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.


 


1.06              Times of Day. Unless otherwise specified,
all references herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).


 


12

















 


ARTICLE II

THE
COMMITMENTS AND CREDIT EXTENSIONS


 


2.01              The Loans.


 


(a)                     Subject to
the terms and conditions set forth herein, the Lender agrees to make Loans with
respect to one or more Tranches to the Borrower from time to time, on any
Business Day during the relevant Availability Period (each such date a “Funding
Date”); provided, however, that as of any Funding Date and
after giving effect to the related borrowings, the aggregate outstanding Loan
Amount at Maturity of the Loans for each Tranche shall not exceed the
Commitment applicable to such Tranche. With respect to a Tranche, during the
relevant Availability Period and subject to the other terms and conditions
hereof, the Borrower may borrow and (subject to prior repayment) reborrow Loans
relating to such Tranche.


 


(b)                    The Borrower
agrees that on the Closing Date it shall borrow a Loan with respect to each
Tranche having a Loan Amount at Maturity set forth for such Tranche in the
fourth column of Schedule 1 hereto (collectively, the “Initial Loans”).


 


2.02              Borrowings.


 


(a)                     Each
borrowing of a Loan other than the Initial Loans shall be made upon the
Borrower’s irrevocable notice to the Lender, which may be given by telephone.
Each such notice must be received by the Lender not later than 10:00 a.m.
on the third Business Day (the seventh Business Day if the aggregate Proceeds
of the proposed Loans is $250,000,000 or more) prior to the requested Funding
Date. Notwithstanding anything to the contrary contained herein, but subject to
the provisions of Section 9.02(d), any such telephonic notice may
be given by a Responsible Officer of the Borrower or an individual who has been
authorized in writing to do so by a Responsible Officer of the Borrower. Each
such telephonic notice must be confirmed promptly by delivery to the Lender of
a written Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each borrowing of one or more Loans on a particular
Funding Date shall have an aggregate Loan Amount at Maturity of $25,000,000 or
more. Each Loan Notice (whether telephonic or written) shall specify (1) the
requested Funding Date of the proposed Loan or Loans (which shall be a Business
Day), (2) the Tranche to which each Loan is related, (3) the
requested Proceeds for each Loan and (4) the expected Loan Amount at
Maturity of each Loan to be borrowed. Not later than the Business Day
immediately following the day that the Borrower delivers a completed Loan
Notice to the Lender, the Lender shall calculate and notify the Borrower of the
Loan Amount at Maturity applicable to such Proceeds for each Loan requested to
be borrowed on the related Funding Date.


 


(b)                    (i) Upon
satisfaction of the applicable conditions set forth in Section 4.01
(in the case of the Initial Loans) and Section 4.02 (in the case of
all Loans), the Lender shall advance an amount equal to the Proceeds related to
each Loan being made on the applicable Funding Date either by (1) crediting
the account of the Borrower on the books of the Lender with the amount of such
advance or (2) wire transfer of such amount, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Lender by the
Borrower.


 


(ii) Notwithstanding
the preceding clause (i), in the case of the Initial Loans, the entire Proceeds
shall be netted against the purchase price of the Purchased DTV Shares and none
of the Proceeds thereof will be distributed to the Borrower on the initial
Funding Date.


 


13

















 


2.03              Prepayments.


 


(a)                     Voluntary
Prepayments. With respect to each Loan, the Borrower may, upon notice to
the Lender, voluntarily prepay the related Loan Amount at Maturity, in full or
in part, by payment to the Lender of the applicable Prepayment Amount. The
Borrower may prepay one or more Loans on any single Business Day; provided
that the aggregate Prepaid Loan Amount at Maturity of Loans being repaid on any
single Business Day is not less than $25,000,000 or increments of $1,000,000 in
excess thereof. With respect to each Loan being prepaid, notice of prepayment
must be received by the Lender not later than 10:00 a.m. on the third
Business Day preceding the date of the prepayment and shall specify the date of
the prepayment, the Tranche of such Loan and the Prepaid Loan Amount at
Maturity of such Loan. Not later than two Business Days before the date of
repayment, the Lender shall calculate and notify the Borrower of the applicable
Prepayment Amount. If notice of prepayment is given by the Borrower, payment of
the foregoing amount with respect to the Loan to be prepaid shall be due and
payable on the prepayment date specified therein.


 


(b)                    Mandatory
Prepayments. If at any time the amount of a Commitment with respect to a
Tranche shall be reduced pursuant to Section 2.04, the Borrower
shall on the date of such reduction prepay the Loan Amount at Maturity of one
or more Loans related to such Tranche such that the aggregate Loan Amount at
Maturity of the Loans related to such Tranche immediately after such prepayment
does not exceed the amount of such Commitment as so reduced and the amount of
such prepayment shall be allocated among the Loans of such Tranche in such
manner as may be determined by the Borrower and notified to the Lender. With
respect to each Loan being prepaid pursuant to the preceding sentence, any such
prepayment shall be in an amount equal to the applicable Prepayment Amount.


 


2.04              Termination or Reduction of Commitments.


 


(a)                     If  at any time after the date hereof, with
respect to a Tranche, the product of the Put Strike Price (as defined in the
Collar Transaction for the Related Component), the number of Options (as so
defined) and the Option Entitlement (as so defined) is reduced pursuant to the
terms thereof (which for the avoidance of doubt includes any reduction due to a
partial or full termination of the Related Component), the Commitment for such
Tranche shall be automatically and permanently reduced on the date of such
reduction by a corresponding amount.


 


(b)                    On each
Gradual Repayment Date pursuant to Section 2.05(b), the Commitment
for the applicable Tranche shall be automatically and permanently reduced on
such date by an amount equal to the corresponding Gradual Repayment Amount.


 


2.05              Repayment of Loans.


 


(a)                     With respect
to all the Loans of a Tranche outstanding, if any, on the related Maturity
Date, the Borrower shall repay to the Lender on such date an amount equal to
the aggregate Loan Amount at Maturity for such Loans plus any amount
payable by the Borrower pursuant to Section 2.08.


 


14

















 


 


(b)                    With respect
to each Tranche and each Gradual Repayment Date related thereto, the Lender
shall on the related Gradual Repayment Notification Date notify the Borrower
not later than 11:00 a.m. on such date of the Gradual Repayment Amount due
on such Gradual Repayment Date. On such Gradual Repayment Date, the Borrower
shall pay to the Lender an amount equal to such Gradual Repayment Amount and
the aggregate Loan Amount at Maturity of all Loans of such Tranche shall be
reduced pro rata by a corresponding amount.


 


2.06              Interest. If any amount payable by the
Borrower under any Loan Document (other than the Collar Transaction Documents)
is not paid when due (without regard to any applicable grace periods), whether
at prepayment, stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at an interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws, which interest
shall accrue from the date such overdue amount was originally due to the date
of payment in full of such amount, including interest thereon, has been made to
the Lender. Accrued and unpaid interest on past due amounts, including interest
on interest, shall be due and payable upon demand. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief
Law.


 


2.07              Computation of Interest. Unless otherwise
provided herein, all computations of interest shall be made on the basis of a
360-day year and actual days elapsed (which results in more interest being paid
than if computed on the basis of a 365-day year).


 


2.08              Averaging Period Interest Refund. With
respect to a Tranche, on each Gradual Repayment Notification Date related
thereto, the Lender shall notify the Borrower of the Averaging Period Interest
Refund in respect of the related Gradual Repayment Date. On such Gradual
Repayment Date, if such Averaging Period Interest Refund is a positive number,
the Lender shall pay to the Borrower an amount equal to such number and if such
Averaging Period Interest Refund is a negative number, the Borrower shall pay
to the Lender an amount equal to the absolute value of such negative number; provided
that if on any Gradual Repayment Date the Lender shall owe one or more
Averaging Period Interest Refunds to the Borrower and the Borrower shall owe
one or more Averaging Period Interest Refunds or Gradual Repayment Amounts to
the Lender, such amounts shall be netted and the net amount shall be paid by
the applicable party to the other party.


 


2.09              Evidence of Debt. The Loans made by the
Lender shall be evidenced by one or more accounts or records maintained by the
Lender in the ordinary course of business. The accounts or records maintained
by the Lender shall be conclusive absent manifest error. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect
to the Obligations. Upon the request of the Lender, the Borrower shall execute
and deliver to the Lender a Note with respect to each Tranche, which shall
evidence the Loans related to such Tranche in addition to such accounts or
records. The Lender may attach schedules to each Note and endorse thereon the
date, the aggregate Loan Amount at Maturity related to such Tranche and the
Maturity Date for all the Loans related to such Tranche and payments with
respect thereto.


 


15

















 


2.10              Payments Generally.


 


(a)                     All payments
to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff (except as may be permitted by the
second paragraph of Section 9.09 and Section 2.08).
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Lender at the applicable Lending Office in
Dollars and in immediately available funds not later than 3:00 p.m. on the
date specified herein. All payments received by the Lender after 3:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable
interest shall continue to accrue.


 


(b)                    If any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or present value.


 


(c)                     Nothing
herein shall be deemed to obligate the Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation by the
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.


 


(d)                    The
determination of the Reference LIBOR Rate, the Interpolated Zero Coupon Swap
Rate, any Loan Amount at Maturity, any Prepaid Loan Amount at Maturity, any
Prepayment Amount, any Averaging Period Interest Refund, any Gradual Repayment
Amount and all other calculations hereunder by the Lender shall be conclusive
absent manifest error. With respect to any of the foregoing determinations,
unless another time period is specified herein, as soon as reasonably
practicable after the determination thereof, the Lender shall notify the
Borrower of each such determination including reasonable detail regarding the
calculation thereof.


 


2.11              Modification of Margin Delimited Commitment.


 


(a)                     Upon the
pledge of additional Eligible Collateral pursuant to the Pledge Agreement and
provided that the Lender has received not less than two Business Days’ prior
notice of the allocation of such additional Eligible Collateral to a Tranche,
the Margin Delimited Commitment applicable to such Tranche shall be increased
by an amount equal to the Maximum Loan Value of such Eligible Collateral on the
date the Lender receives a perfected, first priority security interest in such
Eligible Collateral under the Pledge Agreement.


 


(b)                    The Borrower
may, at any time upon two Business Days’ prior notice to the Lender, request a
recalculation of the Maximum Loan Value of the Collateral relating to a
Tranche, and after such recalculation, the Margin Delimited Commitment
applicable to such Tranche shall be equal to the Maximum Loan Value as of such
date of recalculation of the Collateral allocated to such Tranche.


 


(c)                     With respect
to any Tranche, if the Margin Delimited Commitment for such Tranche is modified
pursuant to this Section 2.11, on such date of modification, the
Borrower shall deliver to the Lender a duly executed “Statement of Purpose for
an Extension of Credit Secured by Margin Stock” on Federal Reserve Form U-l
with respect to such Tranche, completed in form and substance satisfactory to
the Lender.


 


16














 


ARTICLE III

TAXES,
YIELD PROTECTION AND ILLEGALITY


 


3.01     Taxes.


 


(a)       Any and all payments by the Borrower to
or for the account of the Lender under this Agreement, a Note or the Pledge
Agreement shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and all liabilities with respect
thereto, excluding taxes imposed on or measured by the Lender’s overall
net income, and franchise taxes imposed on it (in lieu of net income taxes), by
the jurisdiction (or any political subdivision thereof) under the Laws of which
the Lender is organized or maintains a lending office, which excluded taxes
include, for the avoidance of doubt, United States federal income taxes imposed
on a Lender which is organized within the United States (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and liabilities being hereinafter referred to as “Taxes”).
If the Borrower shall be required by any Laws to deduct any Taxes from or in
respect of any sum payable under any such document to the Lender, (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), the Lender receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make
such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable Laws, and (iv) within 30 days after the date of such payment,
the Borrower shall furnish to the Lender the original or a certified copy of a
receipt evidencing payment thereof.


 


(b)       In addition, the Borrower agrees to pay
any and all present or future stamp, court or documentary taxes and any other
excise or property taxes or charges or similar levies which arise from any
payment made under this Agreement, any Note or the Pledge Agreement or from the
execution, delivery, performance, enforcement or registration of, or otherwise
with respect to, any such document (hereinafter referred to as “Other Taxes”).


 


(c)       If the Borrower shall be required to
deduct or pay any Taxes or Other Taxes from or in respect of any sum payable
under this Agreement, any Note or the Pledge Agreement to the Lender, the
Borrower shall also pay to the Lender, at the time interest is paid, such
additional amount that the Lender specifies is necessary to preserve the
after-tax yield (after factoring in all taxes, including taxes imposed on or
measured by net income) that the Lender would have received if such Taxes or
Other Taxes had not been imposed.


 


(d)       The Borrower agrees to indemnify the
Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Lender, (ii) amounts payable under Section 3.01(c) and
(iii) any liability (including additions to tax, penalties, interest and
expenses) arising therefrom or with respect thereto, in each case whether or
not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. Payment under this subsection (d) shall
be made within 30 days after the date the Lender makes a demand therefor.


 


17

















 


(e)       The Lender shall deliver to the Borrower
on the Closing Date a properly completed and executed IRS Form W-9. Prior
to the expiration of such form, the Lender shall deliver a new properly
completed and executed IRS Form W-9 (or successor form). The Borrower
shall be entitled to rely upon such form and, notwithstanding the other provisions
of Section 3.01 to the contrary, shall be held harmless by the
Lender for any losses sustained from relying upon such form. If, pursuant to Section 9.07(b),
the Lender assigns its rights and obligations under this Agreement to an
Eligible Assignee, such assignee shall deliver to the Borrower, prior to the
date on which the first payment to such assignee is due hereunder and from time
to time thereafter, a properly completed and executed IRS Form W-9, IRS Form W-8BEN
or similar form, as appropriate.


 


3.02     Increased
Costs. If any Change in Law shall: (i) impose, modify or deem
applicable any reserve, special deposit, compulsory loan, insurance charge or
similar requirement against assets of, deposits with or for the account of, or
credit extended or participated in by, the Lender; (ii) subject the Lender
to any tax of any kind whatsoever with respect to this Agreement, any Loan made
by it, or change the basis of taxation of payments to the Lender in respect
thereof; or (iii) impose on the Lender any other condition, cost or
expense affecting this Agreement or Loans made by the Lender; and the result of
any of the foregoing shall be to increase the cost to the Lender of making or
maintaining any Loan (or of maintaining its obligation to make any Loan), or to
increase the cost to the Lender, or to reduce the amount of any sum received or
receivable by the Lender (whether of principal, interest or any other amount)
then, upon request of the Lender, the Borrower will pay to the Lender such
additional amount or amounts as will compensate the Lender for such additional
costs incurred or reduction suffered.


 


3.03     Funding
Losses. Upon demand of the Lender from time to time, the Borrower
shall promptly compensate the Lender for and hold the Lender harmless from any
loss, cost or expense incurred by it as a result of any failure by the Borrower
(for a reason other than the failure of the Lender to make a Loan) to prepay or
borrow any Loan on the date or in the amount notified by the Borrower,
including any loss, cost or expense (but excluding loss of anticipated profits)
actually incurred by reason of liquidation or reemployment of deposits or other
funds acquired by the Lender to fund or maintain such Loan. The Borrower shall
also pay any customary administrative fees charged by the Lender in connection
with the foregoing.


 


3.04     Requests
for Compensation. A certificate of the Lender claiming compensation
under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder and calculations in reasonable detail
therefor shall be conclusive in the absence of manifest error. In determining
such amount, the Lender may use any reasonable averaging and attribution
methods.


 


3.05     Survival.
All of the Borrower’s obligations under this Article III
shall survive termination of the Commitments and repayment, satisfaction or
discharge of all other Obligations hereunder.


 


18

















 


ARTICLE IV

CONDITIONS


 


4.01     Conditions
to Closing Date. The provisions of Article II hereof and
the obligation of the Lender to make the Loans shall come into force on the
date of the Lender’s receipt of the following, each of which shall be originals
or facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the Borrower, each dated the
Closing Date (unless specified otherwise or, in the case of certificates of
governmental officials, dated a recent date before the Closing Date) and each
in form and substance satisfactory to the Lender and its legal counsel:


 


(a)       executed counterparts of the Pledge
Agreement, the Transaction Acknowledgment and the Parent Guarantee, sufficient
in number for distribution to the Lender and the Borrower;


 


(b)       such certificates of resolutions or other
action, incumbency certificates and/or other certificates of Responsible
Officers of the Borrower as the Lender may require evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to act as
a Responsible Officer in connection with this Agreement and the other Loan
Documents;


 


(c)       executed copies of the Organization
Documents of the Borrower and the Guarantor;


 


(d)       such other documents and certifications
as the Lender may reasonably require to evidence that the Borrower is duly
formed, and that the Borrower is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect;


 


(e)       a certificate of a Responsible Officer of
the Borrower either (A) attaching copies of all consents, licenses and
approvals required in connection with the execution, delivery and performance
by the Borrower and the validity against the Borrower of the Loan Documents to
which it is a party, and such consents, licenses and approvals shall be in full
force and effect, or (B) stating that no such consents, licenses or
approvals are so required;


 


(f)        a certificate signed by a Responsible
Officer of the Borrower certifying (A) that the conditions specified it Sections
4.02(a) and (b) have been satisfied, (B) that there
has been no event or circumstance since the date of the Borrower’s formation
that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect;


 


(g)       the opinion of Baker Botts L.L.P.,
counsel to the Borrower and the Guarantor, addressed to the Lender,
substantially in the form set forth in Exhibit C, and the opinion
of Sherman and Howard LLC stating that the Borrower is not required to register
as an investment company under the Investment Company Act, addressed to the
Lender, substantially in the form set forth in Exhibit D;


 


19

















 


(h)       evidence that all other action that the
Lender may deem necessary or desirable in order to perfect the security
interests created under the Collateral Documents has been taken (including
filing of UCC financing statements);


 


(i)        such other assurances, certificates,
documents or consents as the Lender reasonably may require; and


 


(j)        on or prior to the Closing Date,
delivery by the Borrower of 170,000,000 Shares (and, if such Shares are in
certificated form, together with proper instruments of assignment duly executed
in favor of the Lender or its designee or in blank) to the Lender or its
designee, in each case in a manner acceptable to the Lender for the Lender to
hold as Collateral pursuant to the terms of the Pledge Agreement.


 


4.02     Conditions
to each Borrowing. The obligation of the Lender to make each Loan is
further subject to the following conditions precedent:


 


(a)       The representations and warranties of the
Borrower contained in Article V and the Pledge Agreement, and which
are contained in any document furnished at any time under or in connection
herewith, shall be true and correct on and as of the date of such Loan, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier
date. Without limiting the foregoing, the Lender shall have determined, in its
discretion, that the representation in Section 5.12 (b) is
true and correct.


 


(b)       No Default shall exist, or would result
from such proposed Loan.


 


(c)       The Lender shall have received a Loan
Notice with respect to such Loan in accordance with the requirements hereof
(other than the Initial Loans).


 


(d)       The Lender shall have received a duly
executed “Statement of Purpose for an Extension of Credit Secured by Margin
Stock” on Federal Reserve Form U-l with respect to each Tranche, completed
in form and substance satisfactory to the Lender.


 


(e)       If requested by the Lender, the Lender
shall have received a Note for such Loan executed by the Borrower.


 


(f)        With respect to any such Loan made at
any-time on-or prior to the-withdrawal of all the Shares from the lien created
under the Pledge Agreement pursuant to Section 5(j) thereof, after
giving effect to such Loan, the aggregate of all Proceeds advanced by the
Lender in respect of the Tranche to which such Loan relates and not repaid at
or prior to such time shall not exceed the Margin Delimited Commitment then applicable
to such Tranche (after giving effect to modification of such Margin Delimited
Commitment on such date pursuant to Section 2.11 hereof).


 


Each Loan Notice
submitted by the Borrower shall be deemed to be a representation and warranty
that the conditions specified in Sections 4.02(a) (except for the
last sentence thereof) and (b) have been satisfied on and as of the
date of such Loan.


 


20

















 


ARTICLE V

REPRESENTATIONS
AND WARRANTIES


 


The Borrower
represents and warrants to the Lender that:


 


5.01     Existence,
Qualification and Power; Compliance with Laws. The Borrower (a) is
a limited liability company duly organized or formed, validly existing and in
good standing under the Laws of Delaware, (b) has all requisite power and
authority and all requisite governmental licenses, authorizations, consents and
approvals to (i) own its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a
party, (c) is duly qualified and is licensed and in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license, and (d) is in compliance with all Laws; except in each case
referred to in clause (b)(i), (c) or (d), to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.


 


5.02     Authorization;
No Contravention. The execution, delivery and performance by the Borrower
of each Loan Document to which it is a party have been duly authorized by all
necessary limited liability company action, and do not and will not (a) contravene
the terms of any of the Borrower’s Organization Documents; (b) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, (i) any Contractual Obligation to which the Borrower is a party or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which the Borrower or its property is subject; or (c) violate any
Law.


 


5.03     Governmental
Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, the Borrower of this Agreement or any other Loan Document.


 


5.04     Binding
Effect. This Agreement has been, and each other Loan Document to be
delivered by the Borrower hereunder when delivered hereunder, will have been,
duly executed and delivered by the Borrower. This Agreement constitutes, and
each other Loan Document to be so delivered when so delivered will constitute,
a legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.


 


5.05     Litigation.
There are no actions, suits, proceeding’s, claims or disputes
pending or, to the knowledge of the Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or against any of
its properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate, if determined
adversely, could reasonably be expected to have a Material Adverse Effect.


 


5.06     No
Default. The Borrower is not in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result


 


21

















 


from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.


 


5.07     Liens. The
property of the Borrower is subject to no Liens, other than Liens permitted by Section 7.01.


 


5.08     Taxes.
The Borrower has filed all Federal, state and other material tax returns and
reports required to be filed, and has paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or
imposed upon it or its properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Borrower
that would, if made, have a Material Adverse Effect.


 


5.09     ERISA.


 


(a)       The Borrower has not established any
Plan.


 


(b)       The Borrower does not, and would not be
deemed to, hold Plan Assets.


 


(c)       Neither the Borrower nor any ERISA
Affiliate of the Borrower has incurred or could be subjected to any liability
under Title IV or Section 302 of ERISA or Section 412 of the Code or
maintains or contributes to, or is or has been required to maintain or
contribute to, any Pension Plan that, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.


 


5.10     Subsidiaries.
The Borrower has no Subsidiaries and the Borrower has no Investments
except as permitted under its Organization Documents.


 


5.11     Indebtedness.
The Borrower has no Indebtedness except as permitted under its
Organization Documents.


 


5.12     Margin
Regulations; Investment Company Act.


 


(a)       [Intentionally Omitted.]


 


(b)       The execution of this Agreement, the
making of any of the Loans hereunder, and the direct or indirect use of the
proceeds thereof shall not cause the Lender to be in violation of the FRB’s
Regulation U or the Borrower to be in violation of the FRB’s Regulation X.


 


(c)       Neither the Borrower nor Liberty Media
Corporation is required to be registered as an “investment company” under the
Investment Company Act.


 


5.13     Disclosure.
The Borrower has disclosed to the Lender all agreements, instruments
and corporate or other restrictions to which it is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. No report, financial
statement, certificate or other information furnished (whether in writing or
orally) by or on behalf of the Borrower to the Lender in connection with


 


22

















 


the transactions
contemplated hereby and the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.


 


5.14     Compliance
with Organization Documents. The Borrower is in compliance with the
terms and provisions of its Organization Documents.


 


5.15     Compliance
with Laws. The Borrower is in compliance in all material respects
with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b) the
failure to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.


 


5.16     Ownership
of  the Borrower. On the
date hereof and on the Closing Date, Liberty Media Corporation indirectly owns
all of the equity interests in the Borrower.


 


ARTICLE VI

AFFIRMATIVE
COVENANTS


 


So long as the Commitments
shall be in effect or the Loans or any other Obligations hereunder shall remain
unpaid or unsatisfied, the Borrower shall:


 


6.01     Notices.
Promptly notify the Lender:


 


(a)       of the occurrence of any Default;


 


(b)       of any matter that has resulted or could
reasonably be expected to result in a Material Adverse Effect, including (i) breach
or non-performance of, or any default under, a Contractual Obligation of the
Borrower; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower; and


 


(c)       of any material change in accounting
policies or financial reporting practices by the Borrower.


 


Each notice
pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.01(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


 


6.02     Payment
of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower; (b) all lawful
claims which, if


 


23

















 


unpaid, would by law
become a Lien upon its property; and (c) all Indebtedness, as and when due
and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.


 


6.03     Preservation
of Existence, Etc. (a) Preserve, renew and maintain in fall
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization; and (b) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the extent that
failure to take such action could not reasonably be expected to have a Material
Adverse Effect.


 


6.04     Compliance
with Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its business or property, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material
Adverse Effect.


 


6.05     Compliance
with Organization Documents. Comply with the terms and provisions of
its Organization Documents.


 


6.06     Books and
Records. (a) Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower; and (b) maintain such books of record
and account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over the Borrower.


 


6.07     Use
of Proceeds. In the case of the
Initial Loans, use the proceeds in connection with the purchase of the Purchased
DTV Shares by the Borrower and, in the cases of all other Loans, distribute the
proceeds of the Loans to its Members who may, in their discretion, make a
distribution to Liberty Media Corporation or any Subsidiary thereof for use by
Liberty Media Corporation or such Subsidiary for general corporate purposes, or
lend the proceeds of the Loans to Liberty Media Corporation or a Subsidiary
thereof for general corporate purposes, or otherwise use the proceeds of the
Loans for general corporate purposes, in each case, not in contravention of any
Law or of any Loan Document.


 


6.08     ERISA
Matters. The Borrower will do, or cause to be done, all things
necessary to ensure that it will not be deemed to hold Plan Assets at any time.


 


6.09     Collar
Agreement Opinion. In connection with the execution and delivery of
the Transaction Documents (as defined in the Transaction Acknowledgement), the
Borrower shall deliver such legal opinions relating thereto as the Lender shall
reasonably request, which opinions shall be satisfactory in form and substance
to the Lender.


 


24

















 


ARTICLE VII

NEGATIVE
COVENANTS


 


So long as the
Commitments shall be in effect or the Loans or any other Obligations hereunder
shall remain unpaid or unsatisfied, the Borrower shall not, directly or
indirectly:


 


7.01     Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the
following:


 


(a)       Liens pursuant to any Loan Document; or


 


(b)       Liens for taxes not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP.


 


7.02     Investments.
Make any Investments, except as permitted under the Organization
Documents of the Borrower.


 


7.03     Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except as
permitted under the Organization Documents of the Borrower.


 


7.04     Fundamental
Changes.


 


(a)       Merge, dissolve, liquidate, consolidate
with or into another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, other than in
accordance with Section 6.07.


 


(b)       Amend, restate, modify or waive any
provision of the Organization Documents of the Borrower.


 


7.05     Dispositions.
Make any Disposition or enter into any agreement to make any
Disposition, other than in accordance with Section 6.07, the Organization
Documents of Borrower, the Collar Transaction or any Restricted Payment
permitted under Section 7.06.; provided that no Disposition shall
be made of any assets of the Borrower constituting Collateral other than in
accordance with the Pledge Agreement; provided further that
the Borrower may Dispose of the Purchased DTV Shares without any limitation.


 


7.06     Restricted
Payments. Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, other than
any Restricted Payment (a) consisting solely of the Purchased DTV Shares, (b) consisting
of any distribution of any kind received on the Shares or (c) otherwise
permitted by Section 6.07 or the Organization Documents of the Borrower; provided
that if an Adjustment Event occurs, the Borrower shall be entitled to make a
Restricted Payment of any property of the Borrower (including any property
consisting of any distribution on Shares received by or on behalf of Borrower
in respect of such Adjustment Event or received by or on behalf of Borrower
after such Adjustment Event occurs but prior to the time clauses (i) and (ii) of
this proviso are satisfied) only (i) after any adjustments to the Put
Strike Price (as defined in the Collar Transaction for the Related Component),
the Number of Options (as so defined) or the Option Entitlement (as so defined)
under the Collar Transaction and the affected Related Components required by
the operation of the terms of the Collar Transaction as a result of such
Adjustment Event are final and effective and (ii) after the


 


25

















 


Borrower has paid any
Prepayment Amount, pursuant to Section 2.03 (b), or any other amount under
the applicable Collar Transaction Document required to paid as a result of any
such adjustment.


 


7.07     Change in
Nature of Business. Engage in any material line of business
substantially different from the line of business conducted by the Borrower on
the date hereof or any business substantially related or incidental thereto.


 


7.08     Transactions
with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Borrower, whether or not in the ordinary course of business,
other than on fair and reasonable terms substantially as favorable to the
Borrower as would be obtainable by the Borrower at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, other than in
accordance with Section 6.07, Section 7.05, Section 7.06
and the Organization Documents of the Borrower.


 


7.09     Burdensome
Agreements. Enter into any Contractual Obligation (other than this
Agreement or any other Loan Document) that (a) limits the ability of the
Borrower to create, incur, assume or suffer to exist Liens on its property; or (b) requires
the grant of a Lien to secure an obligation of the Borrower if a Lien is
granted to secure another obligation of the Borrower.


 


7.10     [Intentionally
Omitted.]


 


7.11     ERISA
Matters.


 


(a)       The Borrower shall not incur or become
subject to any liability under Title IV or Section 302 of ERISA or Section 412
of the Code or maintain or contribute to, or be required to maintain or
contribute to, any Plan or Pension Plan.


 


(b)       The Borrower shall not engage in any
transaction that would cause any obligation or action taken or to be taken
hereunder (or the exercise by the Lender of any of its rights under this
Agreement or any of the Loan Documents) to be a non-exempt prohibited
transaction under Section 406 of ERISA, Section 4975 of the Code, or
substantially similar provisions under federal, state or local laws, sales or
regulations.


 


7.12     Change of
Control. The Borrower shall not permit or become subject to a Change
of Control without the prior consent of the Lender (such consent not to be
unreasonably withheld conditioned and delayed).


 


7.13     Lock-Up. Prior
to February 27,2009, the Borrower will not, nor will the Borrower permit
its Affiliates or any “person” associated with the Borrower within the meaning
of paragraph (a)(2) of Rule 144 of the Securities Act (each such
other person an “Associated Person”) to, without the Lender’s prior
written consent (i) sell, pledge or otherwise dispose of any Shares issued
by the Issuer (as defined in the Pledge Agreement) (or any other security or
instrument that would be subject to aggregation under Rule 144(e) of
the Securities Act) or (ii) act in concert with any Person in connection
with the sale, pledge or other disposition of any such Shares or securities or
any interest therein, other than pursuant to the Collar Transaction, in each
case to the extent such sale, pledge or other disposition, may be aggregated
pursuant to Rule 144 with any disposition of the Shares constituting
Collateral under the Pledge Agreement if the


 


26

















 


number of Shares being
sold, pledged or otherwise disposed of, when added to the number of Shares
constituting Collateral under the Pledge Agreement, would exceed the volume
permitted under Rule 144(e) of the Securities Act.


 


ARTICLE VIII

EVENTS
OF DEFAULT AND REMEDIES


 


8.01     Events of
Default. Any of the following shall constitute an “Event of
Default”:


 


(a)       Non-Payment. The Borrower fails to
pay (i) any amount when and as required to be paid herein, including any
interest due hereunder, or (ii) when and as required to be paid any amount
payable under any other Loan Document (other than the Collar Transaction
Documents); or


 


(b)       Specific Covenants. The Borrower
fails to perform or observe any term, covenant or agreement contained in any of
Section 2.01(b), 6.02, 6.03, 6.04, 6.05,
6.07, 6.08 or 6.09 or Article VII; or


 


(c)       Other Defaults. (i) The
Borrower fails to perform or observe any other covenant or agreement (not
specified in subsection (a) or (b) above) contained in any Loan
Document (other than the Collar Transaction Documents) on its part to be
performed or observed and such failure continues for 30 days or (ii) any
Collateral Event of Default occurs under (and as defined in) the Pledge
Agreement; or


 


(d)       Default under the Collar Transaction.
(i) Prior to the date of execution by the Lender and the Borrower of the
Collar Agreement, any Event of Default (as defined in the ISDA Master
Agreement) in respect of which the Borrower is the Defaulting Party (as defined
in the ISDA Master Agreement) or an Early Termination Date (as defined in the
ISDA Master Agreement) occurs under the ISDA Master Agreement deemed to be
entered into between the Lender and the Borrower pursuant to Section 9.16,
or (ii) on or after the date of execution by the Lender and the Borrower
of the Collar Agreement, any Event of Default (as defined in the ISDA Master
Agreement) in respect of which the Borrower in the Defaulting Party (as defined
in the ISDA Master Agreement) or an Early Termination Date (as defined in the
ISDA Master Agreement) occurs under the Collar Agreement; or


 


(e)       Representations and Warranties.
Any representation, warranty, certification or statement of fact made or deemed
made by or behalf of the Borrower herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith, shall be incorrect or
misleading in any material respect when made or deemed made; or


 


(f)        Insolvency Proceedings, Etc. The
Borrower institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or the Borrower takes any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the foregoing acts; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of the Borrower; or any proceeding under any Debtor
Relief Law relating to the


 


27

















 


Borrower or to all or any
material part of its property is instituted without the consent of the Borrower
and is not dismissed, discharged, stayed or restrained within 30 days of the
institution thereof; or


 


(g)       Inability to Pay Debts; Attachment.
(i) The Borrower becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of the Borrower; or


 


(h)       Judgments. There is entered
against the Borrower (i) a final judgment or order for the payment of
money (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and
enforcement proceedings are commenced by any creditor upon such judgment or
order;


 


(i)        Invalidity of Loan Documents. Any
Loan Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or the Borrower or any of
its Affiliates or Subsidiaries contests in any manner the validity or
enforceability of any Loan Document; or the Borrower or any of its Affiliates
denies that it has any or further liability or obligation under any Loan
Document to which the Borrower or such Affiliate is a party, or purports to
revoke, terminate or rescind any Loan Document to which the Borrower or such
Affiliate is a party; or


 


(j)        Failure to Execute Transaction
Documents. The Lender elects to terminate the Transaction Acknowledgement
pursuant to the last paragraph of the section titled “Greenlady Conditions”
thereunder because Transaction Documents (as defined in the Transaction
Acknowledgement) are not executed within the time period specified in such
paragraph.


 


8.02     Remedies
Upon Event of Default. If any Event of Default occurs and is
continuing, the Lender may take any or all of the following actions:


 


(a)       declare the Commitments to be terminated,
whereupon the Commitments shall be terminated;


 


(b)       declare the aggregate Loan Amount at
Maturity of all the Loans, and all other amounts owing or payable hereunder
(including interest) or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower; and


 


(c)       exercise all rights and remedies
available to it under the Loan Documents or applicable law;


 


provided,
however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code, the
Commitments shall automatically terminate, and the aggregate Loan Amount at
Maturity and all other amounts as


 


28

















 


aforesaid shall
automatically become due and payable, in each case without further act of the
Lender.


 


8.03     Application
of Funds. After the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and payable), any
amounts received on account of the Obligations shall be applied by the Lender
in such order as it elects in its sole discretion.


 


ARTICLE IX

MISCELLANEOUS


 


9.01     Amendments;
Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Borrower therefrom,
shall be effective unless in writing and signed by the Lender and the Borrower,
and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.


 


9.02     Notices
and Other Communications; Facsimile Copies.


 


(a)       General. Unless otherwise
expressly provided herein, all notices and other communications provided for
hereunder shall be in writing (including by facsimile transmission). All such
written notices shall be mailed, faxed or delivered to the address, facsimile
number or (subject to subsection (c) below) electronic mail address
specified for notices to the applicable party on Schedule 9.02; or to
such other address, facsimile number or electronic mail address as shall be
designated by such party in a notice to the other party. All notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the telephone number specified for notices to the applicable party on Schedule
9.02, or to such other telephone number as shall be designated by such
party in a notice to the other party. All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of (i) actual
receipt by the relevant party hereto and (ii) (A) if delivered by
hand or by courier, when signed for by or on behalf of the relevant party
hereto; (B) if delivered by mail, four Business Days after deposit in the
mails, postage prepaid; (C) if delivered by facsimile, when sent and
receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however,
that notices and other communications to the Lender pursuant to Article II
shall not be effective until actually received by the Lender. In no event shall
a voicemail message be effective as a notice, communication or confirmation
hereunder.


 


(b)       Effectiveness of Facsimile Documents
and Signatures. Loan Documents may be transmitted and/or signed by
facsimile. The effectiveness of any such documents and signatures shall,
subject to applicable Law, have the same force and effect as manually-signed
originals and shall be binding on the Borrower and the Lender. The Lender may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.


 


29

















 


(c)       Limited Use of Electronic Mail.
Electronic mail and Internet and intranet websites may be used only to
distribute routine communications, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.


 


(d)       Reliance by Lender. The Lender
shall be entitled to rely and act upon any notices (including telephonic Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof varied from any confirmation thereof. The Borrower shall
indemnify the Lender, its Affiliates, and their respective officers, directors,
employees, agents and attorneys-in-fact from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to
and other communications with the Lender may be recorded by the Lender, and the
Borrower hereby consents to such recording.


 


9.03     No
Waiver; Cumulative Remedies. No failure by the Lender to exercise,
and no delay by the Lender in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


 


9.04     Attorney
Costs, Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Lender for all costs and expenses incurred after the date hereof
in connection with any amendment, waiver, consent or other modification of this
Agreement, any Note or the Pledge Agreement (whether or not the transactions
contemplated by such amendment, waiver, consent or modification are
consummated), and the consummation and administration of the transactions
contemplated by such amendment, waiver, consent or modification, including all
Attorney Costs, and (b) to pay or reimburse the Lender for all costs and
expenses incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement, any Note or the
Pledge Agreement (including all such costs and expenses incurred during any “workout”
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Lender and the cost
of independent public accountants and other outside experts retained by the
Lender after the date hereof, provided that the costs and expenses of any UCC filings
and searches, including Attorney Costs related thereto, including those
incurred prior to the date hereof, shall be reimbursed by Borrower. Except as
set forth in the prior sentence, no costs related to the preparation and
negotiation of any Loan Documents shall be reimbursed by Borrower.
Notwithstanding anything to the contrary contained in this Agreement, in no
event shall the Borrower be responsible for any expenses, costs, charges, fees,
taxes or payments made by or imposed upon the Lender due to any assignment
effected by Lender pursuant to Section 9.07 hereof. All amounts due
under this Section 9.04 shall be payable within ten Business Days
after demand therefor. The agreements in this Section shall survive the
termination of the Commitments and repayment, satisfaction or discharge of all
other Obligations.


 


30














 


9.05     Indemnification
by the Borrower. Whether or not the transactions contemplated hereby
are consummated, the Borrower shall indemnify and hold harmless the Lender, its
Affiliates, and their respective directors, officers, employees, counsel,
agents and attorneys-in-fact (collectively the “Indemnitees”) from and
against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted against any such Indemnitee in any
way relating to or arising out of or in connection with (a) the execution,
delivery, enforcement, performance or administration of this Agreement or the
Pledge Agreement, (b) the Commitments, any Loan or the use or proposed use
of the proceeds from any Loan or (c) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any of the Borrower’s members, managers, directors,
shareholders or creditors (including any investigation of, preparation for, or
defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the “Indemnified Liabilities”); provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee. No Indemnitee shall have any liability for any indirect or
consequential damages relating to this Agreement or any other Loan Document
(other than as may be provided in the Collar Transaction) or arising out of its
activities in connection herewith or therewith (other than as may be provided
in the Collar Transaction) (whether before or after the Closing Date). All
amounts due under this Section 9.05 shall be payable within ten
Business Days after demand therefor accompanied by reasonable supporting
documentation. The agreements in this Section shall survive the
termination of the Commitments and the repayment, satisfaction or discharge of
all the Obligations.


 


9.06     Payments
Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Lender, or the Lender exercises its right of set-off,
and such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then,
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied-shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred.


 


9.07     Successors
and Assigns.


 


(a)       The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Lender and the Lender may not assign
or otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the


 


31

















 


provisions of subsection (c) of
this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (e) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (c) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)       The Lender may at any time assign to an
Eligible Assignee all (but not less than all) of its rights and obligations
under this Agreement (including all of the Commitments and the Loans at the
time owing to it) pursuant to documentation acceptable to the Lender and the
assignee; provided that (i) the Assignment Conditions have been
satisfied, (ii) the Borrower shall not as a result of the assignment be
required to pay the assignee amounts under this Agreement greater than amounts
the Borrower would have been required to pay to the Lender in the absence of
such assignment and (iii) the Borrower shall not as a result of the
assignment receive from the assignee amounts less than amounts the Borrower
would have received from the Lender in the absence of such assignment. From and
after the effective date specified in such documentation, such Eligible
Assignee shall be a party to this Agreement and have the rights and obligations
of the Lender under this Agreement, and the Lender shall be released from its
obligations under this Agreement (and shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 3.01, 3.02,
3.03, 9.04 and 9.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon
request, the Borrower (at its expense) shall execute and deliver new or
replacement Notes to the Lender and the assignee (in exchange for the existing
Notes from the Lender), and shall execute and deliver any other documents
reasonably necessary or appropriate to give effect to such assignment and to
provide for the administration of this Agreement after giving effect thereto.


 


(c)       The Lender may at any time, without the
consent of, or notice to, the Borrower, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion
of the Lender’s rights and/or obligations under this Agreement (including all
or a portion of any Commitment and/or the Loans); provided that (i) the
Lender’s obligations under this Agreement shall remain unchanged, (ii) the
Lender shall remain solely responsible to the Borrower for the performance of
such obligations, (iii) the Borrower shall continue to deal solely and
directly with the Lender in connection with the Lender’s rights and obligations
under this Agreement, (iv) the Participant Conditions have been satisfied,
(v) the Borrower shall not as a result of the participation be required to
pay the Lender amounts under this Agreement greater than amounts the Borrower
would have been required to pay to the Lender in the absence of such
participation and (vi) the Borrower will not as a result of the
participation receive from the Lender amounts less than amounts the Borrower
would have received from the Lender in the absence of such participation. Any
agreement or instrument pursuant to which the Lender sells such a participation
shall provide that the Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that the Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification that would (i) postpone any
date upon which any payment of money is scheduled to be made to such
Participant or (ii) reduce the principal, interest, fees or other amounts
payable to such Participant (provided,


 


32

















 


however,
that the Lender may, without the consent of the Participant, (A) amend any
financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
to reduce any fee payable hereunder and (B) waive the right to be paid
interest at the Default Rate), or (iii) release any Lien on any Collateral
granted to or held by the Lender under any Loan Document. Subject to subsection
(d) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.01, 3.02 and 3.03
to the same extent as if it were the Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.09
as though it were the Lender.


 


(d)       Notwithstanding anything else to the
contrary herein, a Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.02 than the Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. A Participant that is not a “United
States person” within the meaning of Section 7701(a)(30) of the
Code shall not be entitled to the benefits of Section 3.01 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to provide to the Lender
such tax forms prescribed by the IRS as are necessary or desirable to establish
an exemption from, or reduction of, U.S. withholding tax.


 


(e)       The Lender may at any time pledge or
assign a security interest in all or any portion of its rights to receive
payments under this Agreement (including under the Note, if any) to secure
obligations of the Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release the Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for the Lender as a party hereto.


 


(f)        As used herein, the following terms have
the following meanings:


 


“Assignment
Conditions” shall consist of the following: (i) Borrower shall have
received a duly executed acceptance and assumption by the assignee of the
obligations under this Agreement; (ii) the Lender shall, concurrently with
its assignment to such assignee, assign its rights and obligations under the
Collar Transaction to such assignee and (iii) on the effective date of
such assignment an Event of Default where the Lender is a “defaulting party” or
Termination Event where the Lender is the sole “affected party” (each as
defined in the ISDA Master Agreement) shall not have occurred or be continuing
pursuant to the Collar Transaction and will not occur under the Collar
Transaction as a result of such assignment.


 


“Eligible
Assignee” means (i) any Affiliate of the Lender or any special purpose
entity created, controlled or sponsored by the Lender, in either case, of
substantially equivalent or greater credit quality having the demonstrable
ability to provide the maximum funding to Borrower contemplated by this
Agreement or (ii) any other Person (other than a natural person) approved
by the Borrower (such approval not to be unreasonably withheld or delayed); provided
that no such approval shall be required if an Event of Default has occurred and
is continuing.


 


33

















 


“Participant
Conditions” shall consist of the following: (i) the Lender will
identify the Participant to the Borrower and provide the Borrower with a copy
of the participation agreement; (ii) the Participant shall be a Bank,
Broker or Dealer (as such terms are defined in the Exchange Act) or a special
purpose entity controlled or sponsored by a Bank, Broker or Dealer; (iii) the
Participant shall agree not to sell participations to any other Person; and (iv) on
the effective date of such participation an Event of Default where the Lender
is a “defaulting party” or Termination Event where the Lender is the sole “affected
party” (each as defined in the ISDA Master Agreement) shall not have occurred
or be continuing pursuant to the Collar Transaction and will not occur under
the Collar Transaction as a result of such participation.


 


9.08     Confidentiality.
The Lender agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection
with the exercise of any remedies hereunder or under any other Loan Document or
any action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any permitted assignee of or Participant in, or any
prospective permitted assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations (including this Agreement or the Collar
Transaction), (g) with the consent of the Borrower or (h) to the
extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or the agreements required by this Section or
(y) becomes available to the Lender on a nonconfidential basis from a
source other than the Borrower. For purposes of this Section, “Information”
means all information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to the Lender
on a nonconfidential basis prior to disclosure by the Borrower, provided
that, in the case of information received from the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


 


9.09     Set-off.
In addition to any rights and remedies of the Lender provided by law, upon the
occurrence and during the continuance of any Event of Default, the Lender is
authorized at any time and from time to time, without prior notice to the
Borrower, any such notice being waived by the Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness or obligations at any time owing by, the Lender to or for the credit
or the account of the Borrower against any and all Obligations owing to the
Lender hereunder or under any other Loan Document, now or hereafter existing,
irrespective of whether or not the Lender shall have made demand under this
Agreement or any other Loan Document and although such


 


34

















 


Obligations may be
contingent or unmatured or denominated in a currency different from that of the
applicable deposit, indebtedness or other obligation. The Lender agrees
promptly to notify the Borrower after any such set-off and application; provided,
however, that the failure to give such notice shall not affect the
validity of such set-off and application.


 


Notwithstanding
anything contained herein to the contrary, if, and only if, (i) the Lender
would be required to post collateral under the Collar Agreement or (ii) on
a Cash Settlement Payment Date (as defined in the Collar Transaction) an amount
is due and payable by the Lender under the Collar Transaction or (iii) following
an Early Termination Date (as defined in the ISDA Master Agreement), an amount
calculated pursuant to Section 6(e) of the ISDA Master Agreement is
due and payable by the Lender, and the Lender fails to pay any such amount or
post such collateral, so long as such requirement to post collateral would
apply, in each case after the expiration of any applicable grace period, the
Borrower is authorized, without prior notice to the Lender, any such notice
being waived by the Lender to the fullest extent permitted by law, to set off
and apply any Obligations then due and owing by the Borrower to or for the
credit or the account of the Lender against any obligations then due and owing
to the Borrower from the Lender under the Collar Transaction.


 


9.10     Lender’s
Obligations with respect to Credit Support. The Lender and the
Borrower agree and acknowledge that any obligation of the Lender to post
certain collateral under the Collar Agreement in accordance with the terms
thereof shall not apply or shall cease to be in effect to the extent that the
Lender has made any Loans to the Borrower the aggregate outstanding Loan Amount
at Maturity of which equals or exceeds the Exposure (as such term is defined in
the ISDA Master Agreement) of the Lender to the Borrower under the Collar
Agreement. The Lender and the Borrower agree and acknowledge that the Lender
shall be obligated, however, to post certain collateral under the Collar
Agreement, in accordance with, subject to and to the extent provided by the
terms of the related ISDA Master Agreement, to the extent that the Exposure of
the Lender to the Borrower under the Collar Agreement, on any Business Day,
exceeds the aggregate Loan Amount at Maturity of the Loans to the Borrower
outstanding on that Business Day.


 


9.11     Interest
Rate Limitation. Notwithstanding anything to the contrary contained
in any Loan Document, any interest paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the “Maximum Rate”). If the Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether any interest
contracted for, charged, or received by the Lender exceeds the Maximum Rate,
the Lender may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of any
interest throughout the contemplated term of the Obligations hereunder.


 


9.12     Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.


 


35

















 


9.13     Integration;
Entire Agreement. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter including, for the avoidance of doubt,
the Credit Agreement Transaction Acknowledgement, dated as of April 2,
2008, between the Lender and the Borrower but excluding, for the avoidance of
doubt, the Transaction Acknowledgement (which shall be replaced and superseded
only from and after execution by the Lender and the Borrower of the Collar
Agreement). This Agreement and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties. In the event of any conflict
between the provisions of this Agreement and those of any other Loan Document,
the provisions of this Agreement shall control; provided that the
inclusion of supplemental rights or remedies in favor of the Lender in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any
party, but rather in accordance with the fair meaning thereof.


 


9.14     Survival
of Representations and Warranties. All representations and
warranties made hereunder and in any Note, the Pledge Agreement or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof but shall only be
deemed to be made as of the time or times specified herein or therein. Such
representations and warranties have been or will be relied upon by the Lender,
regardless of any investigation made by the Lender or on its behalf and
notwithstanding that the Lender may have had notice or knowledge of any Default
at the time of any Loan, and shall continue in full force and effect as long as
any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.


 


9.15     Severability.
If any provision of this Agreement, any Note or the Pledge Agreement
is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of such agreements
shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


9.16     Deemed
ISDA Master Agreement. Prior to the execution by the Lender and the
Borrower of the Collar Agreement, the Borrower and the Lender agree that the
Transaction Acknowledgement shall supplement, form a part of, and be subject to
an agreement in the form of the ISDA Master Agreement as if the Lender and the
Borrower had executed an agreement in such form on the date of the Transaction
Acknowledgement (without any Schedule except for (1) the election of
Market Quotation and Second Method, New York law (without regard to the
conflicts of law principles) as the governing law and U.S. Dollars as the
Termination Currency, (2) the election that the “Cross Default” provisions
of Section 5(a)(vi) of the ISDA Master Agreement will apply to the
Lender and the Borrower with a “Threshold Amount” of $50,000,000, (3) the
specification of the Pledge Agreement and the Parent Guarantee as Credit
Support Documents in relation to the Borrower and the Guarantor as a Credit
Support Provider


 


36

















 


in relation to the
Borrower and (4) with an additional Event of Default (as defined under the
ISDA Master Agreement) added as a new Section 5(a)(ix) of the ISDA
Master Agreement in respect of which the Borrower shall be the Defaulting Party
(as defined in the ISDA Master Agreement) if either of the following occurs; (A) a
Collateral Event of Default as defined in the Pledge Agreement or (B) an
Event of Default under this Agreement (each term used in this parenthetical but
not defined in this Agreement or, if so specified, the Pledge Agreement shall
have the meaning specified in the ISDA Master Agreement)).


 


9.17     Collar
Agreement Modifications. References herein to the terms of the
Collar Transaction are based on the provisions of the Transaction
Acknowledgement. If any relevant provisions of the Collar Agreement differ in
any material respect from those of the Transaction Acknowledgement as described
herein, the parties hereto will negotiate in good faith to modify the terms of
this Agreement in a manner that preserves the economic intent of the parties.


 


9.18     Amendments
to Schedules. If as a result of the operation of Section 9.17
or as a result of the operation of any provision of the Collar Transaction any
of the information appearing in Schedule 1, Schedule 2, Schedule
3 or Schedule 4 hereto must be amended, the Lender shall provide the
Borrower with a copy of such amended schedule, which shall automatically be
deemed to replace the prior schedule.


 


9.19     Safe
Harbors. The Borrower and the Lender agree that (a) this
Agreement, together with the Collar Transaction, is a “securities contract” (as
defined in Section 741(7) of the Bankruptcy Code), (b) the
Pledge Agreement and the Parent Guarantee are being entered into in connection
with the Collar Transaction Documents and are or will be a “security agreement
or arrangement” or other “credit enhancement” that forms a part of such “securities
contract” within the meaning of Section 362 of the Bankruptcy Code and (c) all
transfers of cash, securities or other property under or in connection with
this Agreement or the Collar Transaction (including all pledges under the
Pledge Agreement) to the Lender are “transfers” made “by or to (or for the
benefit of)” the Lender as a “financial institution” or a “financial
participant” (each as defined in the Bankruptcy Code) within the meaning of Section 546(e) of
the Bankruptcy Code and are “in connection with” a “securities contract” within
the meaning of Section 546(e) and 548(d)(2) of the Bankruptcy
Code.


 


9.20     Governing
Law.


 


(a)       THIS AGREEMENT AND ALL MATTERS ARISING
OUT OF OR RELATING HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)       ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, THE BORROWER AND THE LENDER EACH CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO


 


37

















 


THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE BORROWER AND THE LENDER EACH IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER AND THE
LENDER EACH WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.


 


9.21     Waiver of Right to Trial by Jury. EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


9.22     USA Patriot Act Notice. The Lender hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow the Lender to identify the Borrower in
accordance with the Act.


 


38

















 


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


 


	
   

  	
  GREENLADY
  II, LLC

  
	
   

  	
  By: Greenlady Corp.,
  its sole managing member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J.A. Flowers

  
	
   

  	
  Name:

  	
  David J.A. Flowers

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 


 


	
   

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William Brett

  
	
   

  	
  Name:

  	
  William Brett

  
	
   

  	
  Title:

  	
  Managing Director

  



 


 


Signature Page- Credit Agreement


 






 










 


SCHEDULE 1


 


TRANCHE INFORMATION


 


	
  Tranche

  	
   

  	
  Component

  related to such

  Tranche

  	
   

  	
  Commitment
  as of the

  Closing Date

  	
   

  	
  Loan
  Amount at Maturity of

  Initial Loan

  	
   

  	
  Proceeds
  of Initial Loan

  	
   

  	
  Averaging

  Midpoint

  Date

  	
   

  	
  Margin
  Delimited

  Commitment as of the

  Closing Date

  
	
  1

  	
   

  	
  1

  	
   

  	
  $

  	
  515,005,300

  	
   

  	
  $

  	
  468,511,698.06

  	
   

  	
  $

  	
  447,084,893.99

  	
   

  	
  Sept. 30, 2009

  	
   

  	
  $

  	
  485,286,296.82

  
	
  2

  	
   

  	
  2

  	
   

  	
  $

  	
  366,226,000

  	
   

  	
  $

  	
  333,163,818.50

  	
   

  	
  $

  	
  312,253,334.05

  	
   

  	
  Apr. 12,
  2010

  	
   

  	
  $

  	
  350,813,195.98

  
	
  3

  	
   

  	
  3

  	
   

  	
  $

  	
  286,114,100

  	
   

  	
  $

  	
  260,261,498.70

  	
   

  	
  $

  	
  238,572,129.76

  	
   

  	
  Oct. 20,
  2010

  	
   

  	
  $

  	
  277,327,881.61

  
	
  4

  	
   

  	
  4

  	
   

  	
  $

  	
  313,908,000

  	
   

  	
  $

  	
  285,547,634.69

  	
   

  	
  $

  	
  255,746,062.68

  	
   

  	
  May 4, 2011

  	
   

  	
  $

  	
  294,456,150.43

  
	
  5

  	
   

  	
  5

  	
   

  	
  $

  	
  400,559,700

  	
   

  	
  $

  	
  364,338,298.86

  	
   

  	
  $

  	
  318,276,802.12

  	
   

  	
  Nov. 11,
  2011

  	
   

  	
  $

  	
  356,820,643.66

  
	
  6

  	
   

  	
  6

  	
   

  	
  $

  	
  523,180,000

  	
   

  	
  $

  	
  475,878,613.32

  	
   

  	
  $

  	
  405,141,777.39

  	
   

  	
  May 23, 2012

  	
   

  	
  $

  	
  467,395,831.50

  
	
   

  	
   

  	
  TOTALS:

  	
   

  	
  $

  	
  2,404,993,100

  	
   

  	
  $

  	
  2,187,701,562.12

  	
   

  	
  $

  	
  1,977,075,000

  	
   

  	
   

  	
   

  	
  $

  	
  2,232,100,000.00

  



 


1

















 


SCHEDULE 2


 


GRADUAL REPAYMENT


 


“Gradual
Repayment Amount” means, with respect to a Tranche, (i) for each
related Gradual Repayment Date other than the last Gradual Repayment Date for
such Tranche, an amount equal to the greater of (a) the aggregate Loan
Amount at Maturity as of such date for all Loans related to such Tranche
(without giving effect to prepayments, if any, made on such date) minus
the Effective Protection Level Amount for such date and (b) zero and (ii) for
the last Gradual Repayment Date for such Tranche, an amount equal to the
aggregate Loan Amount at Maturity as of such date for all Loans related to such
Tranche.


 


“Effective
Protection Level Amount” means, with respect to a Tranche and a related
Gradual Payment Date, an amount calculated using the following formula:


 


MAX [(K – (wi x Ai)), 0]
x N


 


where,


 


“K”
means the Put Strike Price (as defined in the Collar Transaction) for the
Related Component;


 


“wi” means i/n  where “n”
means the total number of Averaging Dates for the Related Component;


 


“i”
means (i) with respect to the first Gradual Repayment Date, 1
and (ii) with respect to each subsequent Gradual Repayment Date, a number
equal to 1 plus the number of Gradual Repayment Dates prior to such Gradual
Repayment Date.


 


“Ai” means
the arithmetic average of the closing price for one Share on every Exchange
Business Day (as defined in the 1996 ISDA Equity Derivatives Definitions),
where the specified Exchange (as defined in the 1996 ISDA Equity Derivatives
Definitions) is NASDAQ, for the period from and including the first Averaging
Date for the Related Component to and including the Averaging Date immediately
prior to such Gradual Repayment Date; provided that, with respect to the
first Gradual Repayment Date, “Ai” shall
mean the closing price for one Share on the fourth Exchange Business Day prior
to such Gradual Repayment Date; and


 


“N”
means the product of the Number of Options (as defined in the Collar
Transaction) and the Option Entitlement (as so defined) for the Related
Component.


 


For the avoidance of
doubt, with respect to each Tranche, as of the last Averaging Date for the
Related Component for such Tranche, the sum of all Gradual Repayment Amounts
for such Tranche shall be equal to the aggregate Loan Amount at Maturity for
all Loans of such Tranche (determined without giving effect to any Gradual
Repayment Amounts for such Tranche).


 


1

















 


SCHEDULE 3


 


AVERAGING PERIOD INTEREST REFUND


 


“Averaging
Period Interest Refund” means, with respect to a Tranche and each related
Gradual Repayment Date, the product of (i) the Gradual Repayment Amount
for such Gradual Repayment Date and (ii) the Carry.


 


“Carry”
means, with respect to a Tranche and each related Gradual Repayment Date, an
amount determined using the following formula:


 


(e(r + 0.5%) x (t))-
1


 


where,


 


“e”
means 2.718282;


 


“r”
means (i) if such Gradual Repayment Date is on or prior to the Averaging
Midpoint Date for such Tranche, the Interpolated Zero Coupon Swap Rate for a
period from and excluding such Gradual Repayment Date to and including the
Averaging Midpoint Date and (ii) if such Gradual Repayment Date is after
the Averaging Midpoint Date for such Tranche, the arithmetic average of the
overnight LIBOR rates for a period from and excluding such Averaging Midpoint
Date to and including such Gradual Repayment Date, determined using the rates
posted on Bloomberg Financial Markets Page “US00O/N [index],[go]” (or any
successor or replacement page).


 


“t” means (i) if such Gradual
Repayment Date is on or prior to the Averaging Midpoint Date for such Tranche,
the time (expressed in whole years, a fraction thereof or both and carried to
the 6th decimal place) from and excluding such Gradual Repayment Date to and
including such Averaging Midpoint Date, expressed as a positive number, and (ii) if
such Gradual Repayment Date is after the Averaging Midpoint Date for such
Tranche, the time (expressed in whole years, a fraction thereof or both and
carried to the 6th decimal place) from and excluding such Averaging Midpoint
Date to and including such Gradual Repayment Date, expressed as a negative
number.


 


1

















 


SCHEDULE 4


 


LOAN AMOUNT AT MATURITY AND PREPAYMENT AMOUNT


 


“Loan Amount at
Maturity” means, with respect to each Loan made and outstanding under the
Credit Agreement or to be made thereunder, as of any date of determination (i) an
amount equal to the future accreted amount of such Loan, which future accreted
amount shall be, in the case of each Initial Loan, the amount set forth in the
fourth column opposite the Tranche related thereto in Schedule 1 to the
Credit Agreement and, in the case of each other Loan, shall be determined by
the Lender on or as of the applicable Funding Date, using the following
formula:


 


Proceeds of such Loan x e(r + 0.5%) x (t)


 


where,


 


“e” means 2.718282;


 


“r”
means the Interpolated Zero Coupon Swap Rate for a period from and
excluding such Funding Date to and including the Averaging Midpoint Date of the
Tranche related to such Loan; and


 


“t”
means the time (expressed in whole years, a fraction thereof or both
and carried to the 6th decimal place) from and excluding the applicable Funding
Date to and including the Averaging Midpoint Date of the Tranche related to
such Loan, calculated on the basis of a year with 365.25 days;


 


less
(ii)(a) any Prepaid Loan Amount at Maturity relating to such Loan and (b) any
Gradual Repayment Amount relating to the applicable Tranche and allocated to
such Loan pursuant to Section 2.04(b), in each case paid prior to
such date of determination.


 


“Prepayment
Amount” means, with respect to a Loan being prepaid pursuant to Section 2.03(a) or
Section 2.03(b) and as of any date of prepayment, (i) if
such prepayment is being made on or prior to the Averaging Midpoint Date for
the Tranche related to such Loan, an amount equal to the present value of the
related Prepaid Loan Amount at Maturity, determined by the Lender on or as of
the applicable date of prepayment, using the following formula:


 


Prepaid Loan Amount at Maturity x e(r + Spread) x (-t3)


 


where,


 


“e”
means 2.718282;


 


1

















 


“r”
means the Interpolated Zero Coupon Swap Rate for a period from and
excluding the date of prepayment to and including the Averaging Midpoint Date
of the Tranche related to such Loan;


 


“t3”
means the time (expressed in whole years, a fraction thereof or both
and carried to the 6th decimal place) from and excluding such date of
prepayment to and including the Averaging Midpoint Date of the Tranche related
to such Loan, calculated on the basis of a year with 365.25 days;


 


“Spread” is determined using the
following formula: 0.50%
- MAX [(0.50% x ((t1- t2)/t3)),0],


 


where,


 


“t1”
means the time (expressed in whole years, a fraction thereof or both
and carried to the 6th decimal place) from and excluding the applicable Funding
Date to and including the Averaging Midpoint Date of the Tranche related to
such Loan multiplied by 0.667, calculated on the basis of a year with 365.25
days; and


 


“t2”
means the time (expressed in whole years, a fraction thereof or both
and carried to the 6th decimal place) from and excluding the applicable Funding
Date to and including such date of prepayment, calculated on the basis of a
year with 365.25 days;


 


or (ii) if such
prepayment is made after the Averaging Midpoint Date for the Tranche related to
such Loan, an amount equal to the value of the related Prepaid Loan Amount at
Maturity, determined by the Lender on or as of the applicable date of
prepayment, using the following formula:


 


Prepaid Loan Amount at Maturity x e(r + 0.50%) x (t)


 


where,


 


“r” means the arithmetic average of
the overnight LIBOR rates for a period from and excluding the Averaging
Midpoint Date of the Tranche related to such Loan to and including the date of
prepayment, determined using the rates posted on Bloomberg Financial Markets Page “US00O/N
[index],[go]” (or any successor or replacement page); and


 


“t”
means the-time (expressed in whole years, a fraction thereof or both
and carried to the 6th decimal place) from and excluding the Averaging Midpoint
Date of the Tranche related to such Loan to and including the date of such
prepayment, calculated on the basis of a year with 365.25 days.


 


2

















 


SCHEDULE 9.02


 


NOTICE ADDRESSES AND LENDING OFFICE


 


	
  BORROWER:

  	
   

  
	
   

  	
   

  
	
  Greenlady II, LLC

  	
   

  
	
  c/o Neal Dermer

  	
   

  
	
  Liberty Media
  Corporation

  	
   

  
	
  12300 Liberty Boulevard

  	
   

  
	
  Englewood, CO 80112

  	
   

  
	
  Telephone: 720-875-5419

  	
   

  
	
  Facsimile: 720-875-5915

  	
   

  
	
   

  	
   

  
	
  LENDER

  	
   

  
	
   

  	
   

  
	
  Lending Office

  	
   

  
	
   

  	
   

  
	
  From
  the Closing Date to May 4, 2008:

  	
   

  
	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A.

  	
   

  
	
  c/o Bank of America
  Securities, LLC

  	
   

  
	
  9 West 57th Street, 40th Floor

  	
   

  
	
  New York, NY 10019

  	
   

  
	
  Attn:
      John Servidio

  	
   

  
	
   Telephone:
  212-847-6527

  	
   

  
	
   Facsimile:
  704-208-2869

  	
   

  
	
   Account
  No. 12333-34172

  	
   

  
	
   ABA#
  026-009-593

  	
   

  
	
   

  	
   

  
	
  After
  May 4, 2008 (unless the Lender notifies the Borrower otherwise):

  	
   

  
	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A.

  	
   

  
	
  c/o Bank of America
  Securities, LLC

  	
   

  
	
  Bank of America Tower,
  3rd Floor

  	
   

  
	
  One Bryant Park

  	
   

  
	
  New York, New York
  10036-6715

  	
   

  
	
  Attn:
       John Servidio

  	
   

  
	
   Telephone:
  212-847-6527

  	
   

  
	
   Facsimile:
  704-208-2869

  	
   

  
	
   Account
  No. 12333-34172

  	
   

  
	
   ABA#
  026-009-593

  	
   

  



 


1

















 


Notices:


 


Same as
address for the Lending Office.


 


2

















 


EXHIBIT A


 


FORM OF LOAN NOTICE


 


Date:
          ,


 


To: Bank of America, N.A.


 


Ladies and Gentlemen:


 


Reference is made to that
certain Credit Agreement dated as of April 9, 2008 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), between
Greenlady II, LLC, a Delaware limited liability company, and Bank of America,
N.A.


 


The undersigned hereby
requests on
                                        
(a Business Day) one or more Loans with the following characteristics:


 


	
  Loan
  No.

  	
   

  	
  Applicable Tranche

  	
   

  	
  Proceeds Requested

  	
   

  	
  Expected Loan

  Amount at Maturity

  
	
  1.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


With respect to each
Tranche and the Loan(s) requested herein related thereto, the aggregate
Loan Amount at Maturity of such Loan(s), together with the aggregate Loan
Amount at Maturity of all other Loans related to such Tranche outstanding on
the proposed Funding Date, will not exceed the then current amount of the
related Commitment.


 


	
   

  	
  GREENLADY
  II, LLC

  
	
   

  	
   

  
	
   

  	
  By: Greenlady Corp.,
  its sole managing member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


A-1

















 


EXHIBIT B


 


FORM OF NOTE


 


	
  Aggregate Loan Amount
  at Maturity

  	
  [DATE]

  
	
  of up to
  U.S.$[          ]

  	
   

  



 


Tranche
[     ]


 


FOR VALUE
RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to the
order of BANK OF AMERICA, N.A. (together with its permitted assigns, the “Lender”),
on the Maturity Date set forth in that certain Credit Agreement, dated as of April 9,
2008 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the “Agreement;” the terms defined therein
being used herein as therein defined), between the Borrower and the Lender, in
lawful money of the United States of America in immediately available funds,
the aggregate Loan Amount at Maturity of the Loan(s) of the Tranche
indicated above made by the Lender to the Borrower pursuant to the Agreement,
together with any amounts payable in respect of such Loan(s) pursuant to Section 2.08
of the Agreement.


 


All payments shall
be made to the Lender in Dollars in immediately available funds at the Lender’s
Lending Office. If any amount is not paid in full when due hereunder or under
the Agreement, such unpaid amount shall bear interest, to be paid upon demand,
from the due date thereof until the date of actual payment (and before as well
as after judgment) computed at the per annum rate set forth in the Agreement.


 


This Note is one
of the Notes referred to in the Agreement, is entitled to the benefits thereof
and is subject to optional and mandatory prepayment in whole or in part as
provided therein. This Note is secured by the Collateral. Upon the occurrence
and continuation of one or more of the Events of Default specified in the
Agreement, the aggregate Loan Amount at Maturity of the Loan(s) of the
Tranche indicated above shall become, or may be declared to be, immediately due
and payable all as provided in the Agreement. Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender in
the ordinary course of business. All borrowings evidenced by this Note and all
payments and prepayments of the aggregate Loan Amount at Maturity hereof and
the respective dates thereof shall be endorsed by the holder hereof on the
schedules attached hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, or otherwise recorded by
such holder in its internal records; provided, however, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower under this Note.


 


The Borrower, for
itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of
this Note.


 


The
transferability of this Note is restricted pursuant to the terms of the
Agreement and any transfer hereof not in compliance with the terms of the
Agreement is void.


 


B-1

















 


THIS NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.


 


	
   

  	
  GREENLADY
  II, LLC

  
	
   

  	
   

  
	
   

  	
  By: Greenlady Corp.,
  its sole managing member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


B-2

















 


Schedule to Note


 


LOANS AND REPAYMENTS OF LOANS


 


	
  Date

  	
   

  	
  Proceeds from Loans

  	
   

  	
  Amount of Prepaid

  Loan Amount at

  Maturity of Loans

  	
   

  	
  Aggregate Loan

  Amount at Maturity of

  Loans

  	
   

  	
  Notation Made

  By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B-3

















 


EXHIBIT C


 


FORM OF OPINION OF BORROWER’S COUNSEL


 





















 


EXHIBIT D


 


FORM OF OPINION OF COUNSEL TO LIBERTY MEDIA CORPORATION


 





















 


EXHIBIT E


 


FORM OF PLEDGE AGREEMENT


 





















 


EXHIBIT F


 


TRANSACTION ACKNOWLEDGEMENT