Exhibit 10.41


 


EXECUTION VERSION


 


GUARANTY OF DIRECTV


 


THIS GUARANTY, dated as of November 19,
2009 is given by DIRECTV, a Delaware corporation (the “Guarantor”) in
favor of Bank of America, N.A., a national banking association organized under
the laws of the United States of America (“BANA”).


 


1. Unconditional Guaranty.
In consideration of and to induce BANA to enter into the Amendment, Unwind,
Consent and Waiver Agreement, dated as of November 19, 2009 among BANA,
Greenlady II, LLC (the “Company”) and the Guarantor (the “Unwind
Agreement”), the Guarantor unconditionally guarantees to BANA and its
successors and assigns (collectively, the “Bank”), the prompt payment
when due (whether at their scheduled due dates, upon acceleration or otherwise
(or would otherwise be owing, due or payable but for the commencement of any
bankruptcy, insolvency or similar proceeding in respect of the Company)) of all
present and future obligations and liabilities of all kinds (including any
renewals, extensions or modifications thereof, and whether for principal,
interest, fees, breakage costs, expenses, indemnification or otherwise and
whether arising before or after the issuance of this Guaranty), and the
performance of all delivery and other obligations, of the Company arising out
of or relating to the Transaction Documents (as defined in and amended by the
Unwind Agreement) and the Unwind Agreement (any and all such obligations and
liabilities, collectively, the “Obligations”).


 


The word “Obligations” is
used herein in its most comprehensive sense and includes any and all
obligations and liabilities of the Company heretofore, now, or hereafter made,
incurred or created, whether voluntary or involuntary and however arising,
whether direct or acquired by the Bank by assignment or succession, whether
originally incurred by or assumed by the Company, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether the Company
may be liable individually or jointly with others, or whether recovery upon such
Obligations may be or hereafter become barred by any statute of limitations, or
whether such Obligations may be or hereafter become otherwise unenforceable.
This Guaranty is unconditional and shall not be affected by the genuineness,
validity, regularity or enforceability of the Obligations or any instrument
evidencing any Obligations, or by the existence, validity, enforceability,
perfection, or extent of any collateral therefor, or by any circumstance
relating to the Obligations which might otherwise constitute a defense to this
Guaranty.


 


This Guaranty is absolute
and unconditional and shall remain in full force and effect and is binding upon
the Guarantor, its successors and assigns until all of the Obligations have
been satisfied in full. If at any time any payment by the Company in respect of
any Obligations is rescinded or must otherwise be returned for any reason
whatsoever, in whole or in part, the Guarantor shall remain liable hereunder in
respect of such Obligations as if such payment had not been made, and this
Guaranty shall remain in full force and effect or shall be reinstated (as the
case may be) with respect to such Obligations.


 


This is a guaranty of
payment and not a guaranty of collection, and the Guarantor agrees that the
Bank may resort to the Guarantor for payment of any of the Obligations whether
or not the Bank has proceeded against any other obligor principally or
secondarily liable for any Obligations, including the Company, or against any
collateral for the Obligations, and whether or not the Bank has pursued any
other remedy available to it. The Bank shall not be obligated to file any claim
relating to the Obligations, including any claim in the event that the Company
becomes subject to a bankruptcy, reorganization or similar proceeding, and the
failure of the Bank to file any such claim shall not affect the Guarantor’s
obligations hereunder. The Guarantor also specifically waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of acceptance, and all other notices
whatsoever with respect to this Guaranty and of the existence, creation, or
incurring of new or additional Obligations. The liability of the Guarantor
under this Guaranty is in addition to the liability of the Guarantor under any
other guaranties executed by it. The Guarantor waives the benefit of any
statute of limitations affecting its liability hereunder.


 


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2. Consents. The
Guarantor agrees that the Bank may at any time extend the time of payment of or
renew any of the Obligations, or make any agreement with the Company or with
any other party or person liable on any of the Obligations, for the extension,
renewal, payment, compromise, discharge or release of the Obligations (in whole
or in part), or for any modifications of the terms thereof or of any agreement
between the Bank and the Company or any such other party or person, without in
any way impairing or affecting this Guaranty for any outstanding Obligations.
The Guarantor authorizes the Bank, without notice or demand and without
affecting its liability hereunder, from time to time, to assign or transfer the
Obligations, to waive, forbear, indulge or take other action or inaction in respect
of this Guaranty or the Obligations, or to exercise or not exercise any right
or remedy hereunder or otherwise with respect to the Obligations.


 


3. Rights; Expenses.
No failure by the Bank to exercise, and no delay in exercising, any right,
remedy or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise by the Bank of any right, remedy or power hereunder,
preclude any other or future exercise of any right, remedy or power. Each and
every right, remedy and power hereby granted to the Bank or allowed by law or
other agreement shall be cumulative and not exclusive of any other right,
remedy or power. The Guarantor agrees to pay on demand all out-of-pocket
expenses (including the reasonable fees and expenses of the Bank’s counsel) in
any way relating to the enforcement or protection of the Bank’s rights under
this Guaranty.


 


4. Benefit; Company.
The Guarantor will benefit from the Bank entering into the Unwind Agreement
with Company and the Guarantor, and the governing body of the Guarantor has
determined that the execution and delivery by the Guarantor of this Guaranty is
necessary and convenient to the conduct, promotion and attainment of the
business of the Guarantor. The Guarantor acknowledges and agrees that it shall
have the sole responsibility for obtaining from the Company such information
concerning the Obligations and the Company’s financial conditions or business
operations as the Guarantor may require, and that the Bank has no duty at any
time to disclose to the Guarantor any such information. The Guarantor
acknowledges and agrees that it is not necessary for the Bank to inquire into
the powers of the Company or of the officers, directors, partners or agents
acting or purporting to act on its behalf, the appropriateness of any
transaction described in any of the Transaction Documents or the Unwind
Agreement for the Company (any such transaction, a “Covered Transaction”),
or the purpose of any such Covered Transaction, and any Obligations made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.


 


5. Subrogation. The
Guarantor shall not exercise any rights which it may have or acquire by way of
subrogation until all of the Obligations are paid in full to the Bank. If any amounts
are paid to the Guarantor in violation of the foregoing limitation, then such
amounts shall be held in trust for the benefit of the Bank and shall forthwith
be paid to the Bank to reduce the amount of outstanding Obligations, whether
matured or unmatured. Subject to the foregoing, upon payment of all of the
Obligations to the Bank, the Guarantor shall be subrogated to the rights of the
Bank against the Company, and the Bank agrees to take at the Guarantor’s
expense such actions as the Guarantor may reasonably require to implement such
subrogation.


 


6. Assignment. The
Guarantor shall not assign its rights, interest, duties or obligations
hereunder to any other person without the Bank’s prior written consent. The
Bank may, without notice to the Guarantor and without affecting the Guarantor’s
obligations hereunder, assign the Obligations and this Guaranty, in whole or in
part. The Guarantor agrees that the Bank may disclose to any prospective
purchaser and any purchaser of all or part of the Obligations any and all
information in the Bank’s possession concerning the Guarantor, this Guaranty
and any security of this Guaranty. None of the terms or provisions of this
Guaranty may be waived, amended, supplemented or otherwise modified, and no
consent with respect to


 


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any departure by the
Guarantor from the terms hereof shall be effective, except as set forth in a
written instrument executed by the Guarantor and the Bank.


 


7. Taxes. All
payments by the Guarantor hereunder will be made in full without set-off or
counterclaim and free and clear of and without withholding or deduction for or
on account of any present or future taxes, duties or other charges, unless the
withholding or deduction of such taxes or duties is required by law. In any
such event, however, the Guarantor shall (a) promptly notify the Bank of
such requirement, (b) pay to the relevant authorities the full amount
required to be deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid to the Bank pursuant to
this paragraph), (c) promptly forward to the Bank an official receipt (or
a certified copy) evidencing such payment, and (d) pay to the Bank such
additional amounts as may be necessary in order that the net amount received by
the Bank after such withholding or deduction shall equal the full amounts of
moneys which would have been received by the Bank in the absence of such
withholding or deduction. The Guarantor will pay all stamp, registration,
documentation, or other similar taxes payable in connection with this Guaranty
and will keep the Bank indemnified against failure to pay the same.


 


8. Payments. The
Guarantor hereby guarantees that the Obligations will be paid to the Bank
without set-off or counterclaim, in lawful currency of the United States of
America or such other freely available currency selected by the Bank, provided
that such currency shall be one of the currencies in which payments are
required to be made under a Covered Transaction, at the offices of the Bank
specified by the Bank for such payment. The obligations of the Guarantor
hereunder shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency except to
the extent to which such tender or recovery shall result in the effective
receipt by the Bank of the full amount of the currency or currencies owing
under this Guaranty and the Guarantor shall indemnify the Bank (as an
alternative or additional cause of action) for the amount (if any) by which
such effective receipt shall fall short of the full amount of currency or
currencies owing under this Guaranty and such obligation to indemnify shall not
be affected by judgment being obtained for any other sums due hereunder.


 


9. Representations.
The Guarantor is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and has full corporate power to
execute, deliver and perform this Guaranty. The Guarantor has duly authorized
this Guaranty, and the signatory of this Guaranty has been duly authorized and
has full power to execute and deliver this Guaranty on behalf of the Guarantor.
This Guaranty and the providing thereof to the Bank does not violate any of the
Guarantor’s constitutive documents, and this Guaranty does not violate any law,
regulation or agreement applicable to the Guarantor or its assets. This
Guaranty has been duly executed and delivered by the Guarantor to the Bank and
constitutes a valid, binding and enforceable agreement against the Guarantor in
accordance with its terms.


 


10. Governing Law;
Jurisdiction. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York, without reference to its
conflicts of laws principles. With respect to any suit, action or proceeding
concerning this Guaranty, the Guarantor submits to the exclusive jurisdiction
of the Federal and State courts located in the City, County and State of New
York. The Guarantor specifically and irrevocably waives (a) any objection
which it may have at any time to the laying of venue of any suit, action or
proceeding brought in such courts, (b) any claim that the same has been
brought in an inconvenient forum, and (c) the right to object that such
courts do not have jurisdiction over it. The Guarantor waives personal service
of any summons, complaint or other process, which may be made by any other
means permitted by New York law, including, without limitation, by registered
mail directed to the Guarantor’s principal place of business.


 


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11. Miscellaneous.
This Guaranty contains the entire and exclusive agreement of the parties hereto
with reference to the matters discussed herein. This Guaranty supersedes all
prior drafts and communications with respect thereto. The headings of
paragraphs herein are inserted only for convenience and shall in no way define,
describe or limit the scope or intent of any provision of this Guaranty. If any
term or provision of this Guaranty shall be deemed prohibited by or invalid
under any applicable law, such provision shall be invalidated without affecting
the remaining provisions of this Guaranty.


 


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IN WITNESS
WHEREOF, this Guaranty has been duly executed and delivered
by the Guarantor to the Bank as of the date first above written.


 


DIRECTV


 


 


	
  By:

  	
  /s/ J. William Little

  	
   

  
	
   

  	
  Name: J. William
  Little

  	
   

  
	
   

  	
  Title: SVP

  	
   

  



 


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