Exhibit 10.40


 


AMENDMENT, UNWIND, CONSENT AND WAIVER AGREEMENT


 


Amendment, Unwind, Consent and Waiver Agreement, dated as of November 19,
2009 (the “Agreement”), among Greenlady II, LLC (“Greenlady II”),
DIRECTV (“New DTV”) and Bank of America, N.A. (“BofA”).


 


WHEREAS,
BofA and Greenlady II have entered into the Credit Agreement, dated as of April 9,
2008 (the “Credit Agreement”), the Pledge Agreement, dated as of April 9,
2008 (the “Pledge Agreement”), and the Master Confirmation, dated as of April 9,
2008, and the Supplemental Confirmations thereunder (together, the “Collar
Confirmation” and, together with the Credit Agreement and the Pledge
Agreement, the “Transaction Documents”), relating to six collar
transactions (the “Collar Transactions” and each, a “Component”,
five of which are further described in Exhibit A hereto) between Greenlady
II and BofA with respect to the common stock, par value USD 0.01 per share, of
The DIRECTV Group, Inc. (“Old DTV”);


 


WHEREAS,
Liberty Media Corporation, Liberty Entertainment, Inc., Old DTV, New DTV,
DTVG One, Inc. and DTVG Two, Inc. have entered into the Agreement and
Plan of Merger, dated as of May 3, 2009, as amended and supplemented by
Amendment No. 1 thereto, dated as of July 29, 2009, and Amendment No. 2
thereto, dated as of October 2, 2009 (together, the “Merger Agreement”);


 


WHEREAS,
after the consummation of the transactions contemplated by Section 1.1 of
the Merger Agreement and the Split-Off (as defined in the Merger Agreement)
(collectively, the “Merger Transactions”), New DTV will indirectly own
all of the equity interests in Greenlady II;


 


WHEREAS,
in connection with the Merger Transactions, the parties hereto desire to amend
the Transaction Documents and unwind certain Collar Transactions;


 


NOW,
THEREFORE, in consideration of the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto
covenant and agree as follows:


 


ARTICLE I


UNWIND OF CERTAIN COLLAR TRANSACTIONS


 


Capitalized
terms used but not defined in this Article I shall have the meanings given
to such terms in the Collar Confirmation.


 


SECTION 1.01.
Unwind of Certain Collar Transactions. Each of Components 2 through 6
under the Collar Confirmation shall be terminated in the order indicated in Exhibit A
hereto pursuant to the methodology set forth in Section 1.02(b) below
(each such termination, a “Component Unwind”). For the avoidance of
doubt, Component 1 shall not be subject to any Component Unwind and the “Valuation”
and “Settlement Terms” provisions of Section 2 of the Collar Confirmation
shall not apply to any Component Unwind hereunder.


 


SECTION 1.02.
Unwind Methodology.


 


(a)           Definitions.


 


(i)            “2002
Definitions” means the 2002 ISDA Equity Derivatives Definitions, as
published by the International Swaps and Derivatives Association, Inc.


 


1

















 


(ii)           “Component
Unwind Date” means, (A) with respect to Component 2, the scheduled
Exchange Business Day immediately following the Closing Date (as defined in Section 7.01(a) below),
subject to adjustment as provided in Section 7.01(a) below and (B) with
respect to each subsequent Component to be terminated, the scheduled Exchange
Business Day immediately following the final day of the immediately preceding
Component Unwind Reference Period.


 


(iii)          “Component
Unwind Payment Date” means, for each Component Unwind, the third Currency
Business Day following the final day of the related Component Unwind Reference
Period.


 


(iv)          “Component
Unwind Reference Period” means, for each Component Unwind, the period
beginning on and including the related Component Unwind Date and ending on and
including the date BofA notifies Greenlady II that it has unwound its existing
hedge position(s) for the related Component in the open market and/or in
private transactions, as determined by BofA in its sole discretion.


 


(v)           “Component
Unwind Reference Price” means, for each Component Unwind, the
volume-weighted average price per Share at which BofA unwinds its existing
hedge position(s) for the related Component.


 


(vi)          “Market
Disruption Event” has the meaning specified in Section 6.3(a) of
the 2002 Definitions, determined as if (v) BofA were the “Calculation
Agent”, (w) New DTV were the relevant “Issuer”, (x) the New DTV
Shares (as defined in Section 8.02(h)) were the relevant “Shares”, (y) The
NASDAQ Global Select Market were the “Exchange” and (z) the “Related
Exchange” were “All Exchanges”; provided that the third and fourth line
of Section 6.3(a) of the 2002 Definitions shall be amended by
deleting the words “, at any time during the one hour period that ends at the
relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or
Knock-out Valuation Time, as the case may be,”.


 


(vii)         “Merger
Event” has the meaning specified in Section 12.1(b) of the 2002
Definitions, determined as if (x) BofA were the “Calculation Agent”, (y) New
DTV were the relevant “Issuer” and (z) the New DTV Shares were the
relevant “Shares”; provided that, for the avoidance of doubt, no Merger
Transaction shall constitute a Merger Event.


 


(viii)        “Potential
Adjustment Event” has the meaning specified in Section 11.2(e) of
the 2002 Definitions, determined as if (x) BofA were the “Calculation
Agent”, (y) New DTV were the relevant “Issuer” and (z) the New DTV
Shares were the relevant “Shares”.


 


(ix)           “Reference
Call Volatility” means, for each Component Unwind, the “Reference Call
Volatility” set forth for the related Component in Exhibit A hereto.


 


(x)            “Reference
LIBOR Rate” means, for each Component Unwind Reference Period, the rate
determined by BofA for the remaining term of the related Component, by linear
interpolation if appropriate, using the “offer side” of the U.S. Dollar Swap
rate, as set forth on Bloomberg Financial Markets Page “IYC1 USD
S<go>, page <go>“ (or any successor or replacement page); provided
that, if such page is not available for any reason, BofA shall determine
such rate in good faith.


 


(xi)           “Reference
Put Volatility” means, for each Component Unwind, the “Reference Put
Volatility” set forth for the related Component in Exhibit A hereto.


 


2

















 


(xii)          “Reference
Rate” means, for each Component Unwind, the discount rate, quoted as a zero
coupon, continuously-compounded rate, as determined by BofA assuming the
then-current Reference LIBOR Rate and taking into account any other factors
that BofA reasonably deems appropriate for such determination.


 


(xiii)         “Regulatory
Disruption” means any event that BofA, in its reasonable discretion,
determines makes it appropriate with regard to any legal, regulatory or
self-regulatory requirements or related policies and procedures, for it to
refrain from or decrease any market activity in connection with any Component
Unwind.


 


(xiv)        “Tender
Offer” has the meaning specified in Section 12.1(d) of the 2002
Definitions, determined as if (x) BofA were the “Calculation Agent”, (y) New
DTV were the relevant “Issuer” and (z) the New DTV Shares were the relevant
“Shares”; provided that Section 12.1(d) of the 2002
Definitions shall be amended by inserting the words “or the New DTV Shares”
after the words “voting shares of the Issuer” in the fourth line thereof; provided
further, that, for the avoidance of doubt, no Merger Transaction shall
constitute a Tender Offer.


 


(xv)         “Unwind
Adjustment Event” means any Market Disruption Event, Merger Event,
Potential Adjustment Event, Regulatory Disruption or Tender Offer.


 


(xvi)        “Unwind
Borrow Rate” means, for each Component Unwind, the per annum rate set forth
as the “Unwind Borrow Rate” for the related Component in Exhibit A hereto.


 


(b)           Component Unwind. With respect
to each Component to be terminated, (i) BofA shall calculate a Loss amount
payable by one party to the other party under the Collar Confirmation (taking
into account the amendments contained herein) in respect of such Component (the
“Component Unwind Payment Amount”) as if an Additional Termination Event
had occurred with respect to which Greenlady II (as Party B under the Collar
Transactions) were the sole Affected Party and the relevant Component were the
sole Affected Transaction and (ii) an Early Termination Date with respect
to such Component shall be deemed to occur on the related Component Unwind Date
and BofA and Greenlady II shall have all rights, obligations and liabilities in
respect thereof pursuant to the terms of the Collar Confirmation (taking into
account the amendments contained herein). In determining the Component Unwind
Payment Amount in respect of a Component, BofA shall take into account only the
following factors: the related Component Unwind Reference Price, Reference Put
Volatility, Reference Call Volatility, Reference Rate and Unwind Borrow Rate
(together, the “Agreed Factors”) using such models as it uses in the
regular course of business for pricing or valuing similar transactions between
it and unrelated third parties; provided that, notwithstanding the
foregoing, upon the earlier of (x) the occurrence of any Unwind Adjustment
Event and (y) the announcement of any potential event or transaction that,
in the reasonable discretion of BofA, if consummated could become an Unwind
Adjustment Event, BofA may adjust the Agreed Factors, take into account any
other factors it deems appropriate and make such other adjustments to its
unwind activities in connection with the related Component and its calculations
of the related Component Unwind Payment Amount to account for such Unwind
Adjustment Event or potential Unwind Adjustment Event. With respect to each
Component, BofA shall promptly notify the parties of the related Component
Unwind Payment Amount, and the party owing such amount shall make payment of
such amount to the party to whom such amount is owed on or prior to the related
Component Unwind Payment Date.


 


If
New DTV objects in writing to BofA’s determination of a Component Unwind
Payment Amount within three Exchange Business Days after it receives notice
thereof, BofA will obtain a quotation for such determination provided by a
leading equity derivatives dealer, as selected by BofA,


 


3

















 


and BofA shall consider such
quotation in good faith but shall not be bound by such quotation in making the
relevant determination.


 


(c)           Instruction Days. New DTV may
provide, at any time on a particular Exchange Business Day and on no more than
fifteen Exchange Business Days in the aggregate for all Component Unwinds, (and
upon such provision, BofA shall implement) instructions directing BofA not to
unwind its hedge position(s) on such Exchange Business Day, it being
understood that any such instruction shall apply only for a single Exchange
Business Day and that the Component Unwind Reference Price for such day shall
take into account any unwind by BofA of its hedge position(s) in respect
of the related Component occurring prior to the time BofA is able, using
commercially reasonable efforts, to implement such instructions (any such
Exchange Business Day with respect to which New DTV provides such an instruction,
an “Instruction Day”). For the avoidance of doubt, (i) New DTV may
only instruct or direct BofA to suspend fully its unwind of its hedge position(s) on
a particular Exchange Business Day in a manner set forth above, (ii) subject
to the other provisions of this Agreement, BofA shall maintain full discretion
as to how any hedge position is unwound on any day that is not an Instruction
Day or prior to its implementing any instructions given by New DTV on an
Instruction Day and (iii) New DTV will not seek to control or influence
BofA’s decision with respect to how, when or whether to unwind any hedge
position. Notwithstanding the foregoing, the parties acknowledge that any
exercise by New DTV of its rights under the first sentence of this Section 1.02(c) shall
not be deemed a breach of clause (iii) of the immediately preceding
sentence.


 


ARTICLE II


FIRST AMENDMENT TO THE CREDIT AGREEMENT


 


Capitalized
terms used but not defined in this Article II shall have the meanings
given to such terms in the Credit Agreement.


 


SECTION 2.01.
Definitions.


 


(a)           The introductory paragraph of the
Credit Agreement is amended by inserting the words “as amended from time to
time,” in the first parenthetical therein before the words “this ‘Agreement’”.


 


(b)           The definition of “Collar Transaction”
in Section 1.01 of the Credit Agreement is amended by inserting the words “,
each as amended and supplemented from time to time” after the first instance of
the word “Agreement” and before the comma in the penultimate line thereof.


 


(c)           The definition of “Issuer” in Section 1.01
of the Credit Agreement is replaced with the following:


 


“Issuer”
has the meaning assigned to such term in the Collar Agreement.


 


(d)           The definition of “Loan Document” in Section 1.01
of the Credit Agreement is amended by (i) replacing the word “and” in the
second line thereof with a comma and (ii) inserting the words “ and (f) the
Amendment, Unwind, Consent and Waiver Agreement among Greenlady II, LLC,
DIRECTV and Bank of America, N.A., dated as of November 19, 2009 (the “Unwind
Agreement”)” after the words “Parent Guarantee” in the last line thereof.


 


(e)           The definition of “Parent Guarantee”
in Section 1.01 of the Credit Agreement is replaced with the following:


 


4

















 


“Parent
Guarantee” means the Guarantee of DIRECTV in favor of the Lender related to
the Loan Documents, dated as of November 19, 2009.


 


(f)            The definition of “Shares” in Section 1.01
of the Credit Agreement is replaced with the following:


 


“Shares”
has the meaning assigned to such term in the Collar Agreement.


 


SECTION 2.02.
Termination of Commitments in connection with Component Unwinds.  The Commitment with respect to each Tranche
shall be reduced to zero and terminated commencing on the Component Unwind Date
for the related Component (as determined by reference to Schedule 1 to the
Credit Agreement), with such reduction deemed to have occurred pursuant to Section 2.04(a) of
the Credit Agreement in part on each day during the related Component Unwind
Reference Period in an amount determined by BofA based on the portion of the
related Component for which BofA has unwound its hedge position(s). For the
avoidance of doubt, the parties acknowledge and agree that, as a result of such
reduction and termination, (a) pursuant to Section 2.03(b) of
the Credit Agreement, Greenlady II (as the Borrower under the Credit Agreement)
shall be obligated to pay to BofA (as the Lender under the Credit Agreement) a
Prepayment Amount determined by BofA as of the relevant Unwind Prepayment Date
pursuant to Schedule 4 of the Credit Agreement (each, a “Tranche Partial
Unwind Prepayment Amount”) and (b) Greenlady II’s right to borrow and
reborrow Loans relating to the Commitment for such Tranche shall be permanently
extinguished. Notwithstanding anything to the contrary in the Credit Agreement,
an Event of Default described in Section 8.01(a) of the Credit
Agreement shall occur with respect to the payment of any Tranche Partial Unwind
Prepayment Amount only if Greenlady II has not paid such Tranche Partial Unwind
Prepayment Amount to BofA on or prior to the close of business in New York City
on the relevant Unwind Prepayment Date.  “Unwind
Prepayment Date” means, with respect to a Tranche Partial Unwind Prepayment
Amount, the Business Day following the day on which BofA unwinds the portion of
its hedge position(s) to which such Tranche Partial Unwind Prepayment
Amount relates.


 


ARTICLE III


FIRST AMENDMENT TO THE PLEDGE AGREEMENT


 


SECTION 3.01.
Definitions.


 


(a)           The introductory paragraph of the
Pledge Agreement is amended by inserting the words “as amended from time to
time,” in the first parenthetical therein before the words “this ‘Pledge
Agreement’”.


 


(b)           The definition of “Initial Shares” in
Section 1 of the Pledge Agreement is replaced with the following:


 


“Initial
Shares” means 170,000,000 shares of the common stock of The DIRECTV Group, Inc.


 


(c)           The definition of “Issuer” in Section 1
of the Pledge Agreement is replaced with the following:


 


“Issuer”
has the meaning assigned to such term in the Collar Agreement.


 


(d)           The definition of “Shares” in Section 1
of the Pledge Agreement is replaced with the following:


 


5

















 


“Shares”
has the meaning assigned to such term in the Collar Agreement.


 


ARTICLE IV


FIRST AMENDMENT TO THE COLLAR CONFIRMATION


 


Capitalized
terms used but not defined in this Article III shall have the meanings
given to such terms in the Collar Confirmation.


 


SECTION 4.01.
Modified Cancellation and Payment. The definition of “Modified
Cancellation and Payment” in Section 2 of the Collar Confirmation is
amended by deleting the second paragraph thereof.


 


SECTION 4.02.
Payments on Early Termination. Section 3 of the Collar Confirmation
shall be amended by replacing the phrase “Market Quotation” with the word “Loss”.


 


SECTION 4.03.
Credit Support Document and Credit Support Provider.  The New DTV Guaranty (as defined in Section 7.01(b) below)
shall be a Credit Support Document in relation to Greenlady II (as Party B)
under the Collar Confirmation and New DTV shall be a Credit Support Provider in
relation to Greenlady II (as Party B) under the Collar Confirmation.


 


SECTION 4.04.
Effect of Merger.  The parties
agree that the consummation of the Merger Transactions pursuant to the terms of
the Merger Agreement will result in the substitution as “Shares” under the
Collar Transactions of shares of Class A common stock of New DTV for the
shares of common stock of Old DTV, and the Calculation Agent shall make
appropriate changes to the definition of Issuer and the other terms of the
Collar Transactions to reflect such substitution.


 


ARTICLE V


CONSENT AGREEMENT


 


SECTION 5.01.
Merger Consent. For avoidance of doubt, nothing in this Agreement shall
imply or be construed as an agreement, acceptance or acknowledgment by New DTV
or Greenlady II that the Merger Transactions constitute or result in a Change
of Control (as defined in the Credit Agreement). Subject to Section 7.01
hereof, BofA hereby consents to the Merger Transactions for purposes of Section 7.12
of the Credit Agreement, which consent shall, subject to Section 7.01
hereof, be deemed to have been effectively given by BofA as of the time
immediately preceding the effective time of the Merger Transactions (determined
in accordance with the terms of the Merger Agreement).


 


ARTICLE VI


WAIVER AND RELEASE AGREEMENT


 


SECTION 6.01.
Waiver of Certain Rights Related to the Collar Transactions. For
avoidance of doubt, nothing in this Agreement shall imply or be construed as an
agreement, acceptance or acknowledgment by New DTV or Greenlady II that the
Merger Transactions constitute or result in an Insider Acquisition Event, a
Liberty Induced Float Reduction Event or a Liberty Control Event (each, as
defined in the Collar Confirmation). The parties hereby agree that, subject to Section 7.01
hereof, while any of the Collar Transactions are outstanding, BofA shall not
exercise any rights it may have under the terms of the Collar Confirmation as a
result of the consummation of the Merger Transactions pursuant to any of an
Insider Acquisition Event, a Liberty Induced Float Reduction Event or a Liberty
Control Event (each, as defined in the Collar Confirmation).


 


6

















 


SECTION 6.02.
Release of Liberty Guaranty.  Subject
to Section 7.01 hereof, BofA hereby releases Liberty Media LLC from any
and all of its obligations under the Guaranty of Liberty Media LLC in favor of
BofA in relation to the Collar Transactions, dated as of April 2, 2008,
and shall promptly execute such documentation as may be reasonably requested by
Liberty Media LLC evidencing such release.


 


ARTICLE VII


CONDITIONS PRECEDENT


 


SECTION 7.01.
Conditions Precedent. The parties agree that the Component Unwinds
described in Article I hereof, the amendments described in Articles II
through IV hereof, BofA’s consent to the Merger Transactions pursuant to Section 5.01
hereof, BofA’s waiver of certain rights under the Collar Transactions pursuant
to Section 6.01 hereof and BofA’s release of Liberty Media LLC from its
obligations under its Guaranty pursuant to Section 6.02 hereof shall each
be subject to the satisfaction of the condition set forth in Section 7.01(a) and
the satisfaction (or the waiver by BofA) of the conditions set forth in
Sections 7.01(b), (c) and (d).


 


(a)           Consummation of the Merger
Transactions.  The Closing (as
defined in the Merger Agreement) of the Merger Transactions shall have occurred
pursuant to the terms of the Merger Agreement (the date of such occurrence, the
“Closing Date”) on or prior to 5:00 p.m. (New York City time) on November 30,
2009 (or such later date as BofA may agree in writing, in which case BofA shall
be entitled to adjust the Component Unwind Date for Component 2).


 


(b)           Guaranty by New DTV. BofA
shall have received from New DTV a duly executed and delivered guaranty
(substantially in the form of Exhibit B hereto) of all of Greenlady II’s
obligations under this Agreement and each of the Transaction Documents (the “New
DTV Guaranty”).


 


(c)           Representations, Warranties and
Agreements. Neither Greenlady II nor New DTV shall have breached any of its
representations, warranties or agreements contained herein or in any other
Transaction Document.


 


(d)           Closing Documentation. BofA
shall have received from each of Greenlady II and New DTV (i) on or prior
to the Closing Date, incumbency certificates and secretary’s certificates of
good standing and authority and (ii) as soon as reasonably practicable
following the Closing Date (and in any case on or prior to December 4,
2009), an opinion of counsel relating to the enforceability of New DTV’s
obligations under this Agreement and the New DTV Guaranty and Greenlady II’s
obligations under this Agreement, in form and substance reasonably satisfactory
to BofA.


 


ARTICLE VIII


REPRESENTATIONS, WARRANTIES AND AGREEMENTS

OF GREENLADY II AND NEW DTV


 


SECTION 8.01.
Representations and Warranties of Greenlady II.  As of the date of this Agreement:


 


(a)           each of Greenlady II’s
representations and warranties contained in Article V of the Credit Agreement
shall be deemed to be repeated as if set forth herein; and


 


(b)           each of Greenlady II’s
representations and warranties contained in Sections 10(a) and (c) of
the Collar Confirmation shall be deemed to be repeated as if set forth herein.


 


7














 


SECTION 8.02.
Representations, Warranties and Agreements of New DTV.  New DTV represents and warrants to, and
agrees with, BofA as follows:


 


(a)           it is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has full power to execute, deliver and perform the
obligations arising from this Agreement and the New DTV Guaranty;


 


(b)           it has duly authorized this Agreement
and the New DTV Guaranty, and each signatory of this Agreement and the New DTV
Guaranty has been duly authorized and has full power to execute and deliver
this Agreement and the New DTV Guaranty on behalf of New DTV;


 


(c)           this Agreement and the New DTV
Guaranty and the execution thereof do not violate any of New DTV’s constitutive
documents, and this Agreement and the New DTV Guaranty do not violate any law,
regulation or agreement applicable to New DTV or its assets;


 


(d)           all governmental and other consents
that are required to have been obtained by it with respect to this Agreement
and the New DTV Guaranty have been obtained and are in full force and effect
and all conditions of any such consents have been complied with;


 


(e)           it has duly executed and delivered
this Agreement and the New DTV Guaranty, and this Agreement and the New DTV
Guaranty each constitutes a valid, binding and enforceable agreement of New DTV
in accordance with its respective terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar rights affecting creditors’
rights generally and subject, as to enforceability, to equitable principles of
general applicability);


 


(f)            upon the consummation of the Merger
Transactions, New DTV will indirectly own all of the equity interests in
Greenlady II;


 


(g)           on and after the Closing Date, it
shall cause Greenlady II to perform all of its obligations under this Agreement
and the Transaction Documents; and


 


(h)           at all times during the Relevant
Period, it shall not, and shall cause Greenlady II not to, communicate,
directly or indirectly, any material non-public information concerning the
business, operations or prospects of the Issuer (as defined in the Collar
Confirmation, as amended by this Agreement) or the Shares (as defined in the
Collar Confirmation, as amended by this Agreement) (“New DTV Shares”),
to any Equity Derivatives Group Personnel (as defined below). “Material”
information for these purposes is any information to which an investor would
reasonably attach importance in reaching a decision to buy, sell or hold
securities of the relevant issuer.  “Equity
Derivatives Group Personnel” means any employee of BofA or its affiliates
who effects purchases or sales of Shares in connection with this Agreement or
is otherwise involved in unwinding BofA’s hedge position(s).


 


SECTION 8.03.
Representations, Warranties and Agreements of Greenlady II and New DTV.
Each of Greenlady II and New DTV represents and warrants to, and agrees with,
BofA as follows on the date hereof and, in the case of Section 8.03(b) and
(c), on each Instruction Day:


 


(a)           (i)            it
has consulted with its own legal, regulatory, tax, business, investment,
financial and accounting advisors to the extent that it has deemed necessary,
and it has made its own decisions based on its own judgment and upon any advice
from such advisors as it has deemed necessary and not upon any view expressed
by BofA or any of its affiliates or agents; and (ii) it is entering into
this Agreement and, with respect to New DTV, the New DTV Guaranty with a full
understanding of the terms, conditions and risks thereof and is capable of and
willing to assume those risks;


 


8

















 


(b)           none of it, its officers and
directors, its affiliates and any other member of a “group” within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) or the regulations promulgated thereunder,
of which it is a member (a “Counterparty Group” and each member of a
Counterparty Group, together with it, its officers and directors and its
affiliates, a “Counterparty Person”) is aware of any material non-public
information concerning the business, operations or prospects of the Issuer (as
defined in the Collar Confirmation, as amended by this Agreement) or the New
DTV Shares. “Material” information for these purposes is any information to
which an investor would reasonably attach importance in reaching a decision to
buy, sell or hold securities of the relevant issuer;


 


(c)           it is not entering this Agreement nor
taking any action hereunder to create actual or apparent trading activity in
the New DTV Shares (or any security convertible into or exchangeable or
exercisable for New DTV Shares) or to raise or depress or otherwise manipulate
the price of the New DTV Shares (or any security convertible into or
exchangeable or exercisable for New DTV Shares) or otherwise in violation of
the Exchange Act;


 


(d)           during the period beginning on and
including the Component Unwind Date with respect to Component 2 through and
including the last day in the Component Unwind Reference Period with respect to
Component 5 (being the final Component to be subject to a Component Unwind
hereunder) (the “Relevant Period”), neither New DTV nor any “affiliate”
or “affiliated purchaser” (each as defined in Rule 10b-18 under the
Exchange Act (“Rule 10b-18”)) of New DTV shall directly or
indirectly (including, without limitation, by means of any derivative
instrument) purchase, offer to purchase, place any bid or limit order that
would effect a purchase of, or commence any tender offer relating to, the New
DTV Shares (or any security convertible into or exchangeable or exercisable for
New DTV Shares). The foregoing shall not limit any purchase of or offer to
purchase New DTV Shares (or any security convertible into or exchangeable or
exercisable for New DTV Shares) (i) by New DTV or any of its affiliates
from holders of awards granted under New DTV’s stock incentive plans, in
connection with the vesting, exercise, settlement, expiration or termination of
such awards (or New DTV or any of its affiliates being a party to a repurchase
or similar agreement for such purpose), (ii) by any affiliate or “affiliated
purchaser” (as defined in Rule 10b-18) of New DTV pursuant to awards
granted under New DTV’s stock incentive plans or pursuant to New DTV’s share
purchase or 401(k) plan(s) or (iii) by New DTV or any of its
affiliates in a private transaction from any director, officer or employee of
New DTV or any of its affiliates; provided that, in the case of each of
clauses (i), (ii) and (iii), that such purchase or offer to purchase is a
privately negotiated transaction (i.e., not open market) or does not constitute
a “Rule 10b-18 purchase” (as defined in Rule 10b-18);


 


(e)           it shall, at least one day prior to
the first Component Unwind Date hereunder, notify BofA of the total number of
New DTV Shares purchased (if any) pursuant to the once-a-week block exception
set forth in Rule 10b-18(b)(4) by or for it or by any of its “affiliates”
or “affiliated purchasers” (each, as defined in Rule 10b-18) during each
of the four calendar weeks preceding such day and during the week in which such
day occurs;


 


(f)            it is not currently, and during the
Relevant Period will not be, required to register as an “investment company” as
such term is defined in the Investment Company Act of 1940, as amended;


 


(g)           during the Relevant Period, the New
DTV Shares and securities that are convertible into or exchangeable or
exercisable for New DTV Shares are not, and shall not be, subject to a “restricted
period” (as such term is defined in Regulation M under the Exchange Act (“Regulation
M”)), and it shall not engage in any “distribution” (as such term is
defined under Regulation M), other than a distribution of securities (i) that
are not New DTV Shares and (ii) for which New DTV Shares are not a “reference


 


9

















 


security” (as such term is
defined under Regulation M), until the second Exchange Business Day (as defined
in the Collar Confirmation) immediately following the Relevant Period;


 


(h)           it is not “insolvent” (as such term
is defined under Section 101(32) of Title 11 of the United States Code);
and


 


(i)            it shall (i) on or prior to the
Closing Date, deliver to BofA incumbency certificates and secretary’s
certificates of good standing and authority in connection with its entry into
this Agreement and, in the case of New DTV, the New DTV Guaranty and (ii) as
soon as reasonably practicable following the Closing Date (and in any case on
or prior to December 4, 2009), cause to be delivered to BofA an opinion of
counsel relating to the enforceability of, in the case of New DTV, New DTV’s
obligations under this Agreement and the New DTV Guaranty and, in the case of
Greenlady II, Greenlady II’s obligations under this Agreement, in each case in
form and substance reasonably satisfactory to BofA.


 


ARTICLE IX


MISCELLANEOUS


 


SECTION 9.01.
No Additional Amendments, Consents or Waivers. Except as provided
herein, all the terms of the Credit Agreement, the Pledge Agreement and the
Collar Transactions are hereby confirmed and ratified and shall remain and
continue in full force and effect.


 


SECTION 9.02.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.


 


SECTION 9.03.
Notices.  Except as otherwise
provided herein, any notices or other communication relating to this Agreement
shall be in writing and the effectiveness of such communication shall be
determined in accordance with Section 12(a) of the ISDA 2002 Master
Agreement, as published by the International Swaps and Derivatives Association, Inc.


 


Notices
to or other communications with any party to this Agreement shall be sent to
the relevant address set forth below. Each party to this Agreement shall be
entitled to update its address for notice by effective notice to the other
parties of such change.


 


	
   

  	
  Greenlady
  II:

  	
  Greenlady II, LLC

  
	
   

  	
   

  	
  c/o DIRECTV

  
	
   

  	
   

  	
  2230 East Imperial Highway

  
	
   

  	
   

  	
  El Segundo, CA 90245

  
	
   

  	
   

  	
  Attention: Larry D.
  Hunter, General Counsel

  
	
   

  	
   

  	
  Facsimile: (310) 964-0838

  
	
   

  	
   

  	
   

  
	
   

  	
  New DTV:

  	
  DIRECTV

  
	
   

  	
   

  	
  2230 East Imperial Highway

  
	
   

  	
   

  	
  El Segundo, CA 90245

  
	
   

  	
   

  	
  Attention: Larry D.
  Hunter, General Counsel

  
	
   

  	
   

  	
  Facsimile: (310) 964-0838

  



 


10

















 


	
  BofA:

  	
  Bank of America, N.A.

  
	
   

  	
  c/o Merrill Lynch, Pierce,
  Fenner & Smith Incorporated

  
	
   

  	
  Bank of America Tower

  
	
   

  	
  One Bryant Park

  
	
   

  	
  New York, NY 10036

  
	
   

  	
  Telephone: 646-855-5383

  
	
   

  	
  Facsimile: 212-230-8492

  
	
   

  	
  Email:
  rdilworth@bofasecurities.com

  
	
   

  	
  Attn: Equity Derivatives Legal
  — Robert Dilworth

  



 


SECTION 9.04.
Release of Claims. After effective notice from BofA to Greenlady II and
New DTV (which notice BofA shall provide promptly upon such receipt) that it
has received payment of (x) all Tranche Partial Unwind Prepayment Amounts
and Component Unwind Payment Amounts arising in connection with the Component
Unwinds for Components 2 through 6 and (y) all amounts payable by
Greenlady II to BofA pursuant to the Transaction Documents with respect to
Component 1 and Tranche 1, each of BofA, on the one hand, and Greenlady II and
New DTV, on the other hand (in such capacity, each of BofA, Greenlady II and
New DTV, a “Releasor”) shall automatically release and forever discharge
the other party, its corporate parents, subsidiaries and affiliates and their
respective present and former directors, managing directors, officers, control
persons, stockholders, general partners, limited partners, employees, agents,
attorneys, administrators, successors, personal representatives, executors and
assigns (collectively, the “Released Group”) from any and all actions,
causes of action, injunctions, accounts, agreements, bonds, bills, covenants,
contracts, controversies, claims, damages, demands, debts, dues, extents,
executions, judgments, liabilities, obligations, promises, predicate acts,
reckonings, specialties, suits, sums of money, and variances whatsoever,
whether known or unknown, in law or equity, which against any of them the
Releasor, its corporate parents, subsidiaries and affiliates and their
respective present and former directors, managing directors, officers, control
persons, stockholders, general partners, limited partners, employees, agents,
attorneys, administrators, successors, personal representatives, executors and
assigns may now have, have ever had or may hereafter have against any member of
the Released Group arising out of, or in connection with, or in any manner
related to, this Agreement and the Transaction Documents, and all rights or
obligations each Releasor has against or owes to the other party arising from
this Agreement and the Transaction Documents (collectively, the “Claims”)
shall be simultaneously terminated.


 


With
respect to any and all Claims released pursuant to the foregoing paragraph,
each of the Releasors shall expressly waive the provisions, rights, and
benefits of California Civil Code § 1542 and any provisions, rights and
benefits conferred by any law of any state or territory of the United States or
principle of common law which is similar, comparable, or equivalent to
California Civil Code § 1542, which provides:


 


A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.


 


The
Releasors may, after the release described above, discover facts in addition to
or different from those that any of them now knows or believes to be true with
respect to the subject matter of the Claims released at the time such release
becomes effective; however, each Releasor shall, at such effective time, fully,
finally, and forever settle and release any and all Claims released as
described above, known or unknown, suspected or unsuspected, contingent or
non-contingent, whether or not concealed or hidden, which now exist, or
heretofore have existed upon any theory of law or equity now existing or coming
into existence in the future, including, but not limited to, conduct which is
negligent, reckless,


 


11

















 


intentional, with or without
malice, or a breach of any duty, law or rule, without regard to the subsequent
discovery or existence of such different or additional facts. The Releasors
acknowledge and agree that the foregoing waiver was separately bargained for
and a key element of this Agreement.


 


SECTION 9.05.
Governing Law; Jurisdiction.  THIS
AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING HERETO SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.  THE PARTIES HERETO
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN
CONNECTION WITH ALL MATTERS ARISING OUT OF OR RELATING HERETO AND WAIVE ANY
OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH
RESPECT TO, THESE COURTS.


 


SECTION 9.06.
Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.


 


[Signature page follows.]


 


12

















 


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/ J. William Little

  
	
   

  	
  Name:

  	
  J. William Little

  
	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DIRECTV

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. William Little

  
	
   

  	
  Name:

  	
  J. William Little

  
	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Morse

  
	
   

  	
  Name:

  	
  David Morse

  
	
   

  	
  Title:

  	
  Managing Director

  



 


Signature Page to Amendment, Unwind,

Consent and Waiver Agreement


 

















 


EXHIBIT A


 


COMPONENTS TO BE TERMINATED


 


	
  Component:

  	
   

  	
  2

  	
   

  	
  6

  	
   

  	
  3

  	
   

  	
  4

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reference Number:

  	
   

  	
  NY-34256

  	
   

  	
  NY-34260

  	
   

  	
  NY-34257

  	
   

  	
  NY-34258

  	
   

  	
  NY-34259

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Number of Options:

  	
   

  	
  17,500,000

  	
   

  	
  25,000,000

  	
   

  	
  12,500,000

  	
   

  	
  15,000,000

  	
   

  	
  17,500,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Unwind Borrow Rate:

  	
   

  	
  0.15%

  	
   

  	
  0.15%

  	
   

  	
  0.15%

  	
   

  	
  0.15%

  	
   

  	
  0.15%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reference Put Volatility:

  	
   

  	
  41.60%

  	
   

  	
  38.71%

  	
   

  	
  37.21%

  	
   

  	
  38.04%

  	
   

  	
  37.64%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reference Call Volatility:

  	
   

  	
  38.89%

  	
   

  	
  36.00%

  	
   

  	
  35.01%

  	
   

  	
  35.33%

  	
   

  	
  35.62%

  



 


ORDER OF COMPONENT TERMINATIONS


 


1.  Component 2


2.  Component 6


3.  Component 3


4.  Component 4


5.  Component 5


 


A-1