Exhibit
10.4
EXECUTION
VERSION
U.S.$650,000,000
CREDIT AGREEMENT
Dated as of May 3, 2009
Between
GREENLADY CORP.
as Borrower
and
THE DIRECTV GROUP,
INC.
as Lender
Table of Contents
Page
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ARTICLE I
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DEFINITIONS AND ACCOUNTING TERMS
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1
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SECTION 1.01.
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Certain Defined Terms
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1
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SECTION 1.02.
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Computation of Time Periods
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6
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ARTICLE II
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AMOUNTS AND TERMS OF THE ADVANCES
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7
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SECTION 2.01.
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The Advances
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7
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SECTION 2.02.
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Making the Advances
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7
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SECTION 2.03.
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Repayment
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7
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SECTION 2.05.
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[Reserved.]
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8
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SECTION 2.06.
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Optional Prepayments
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8
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SECTION 2.07.
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Illegality
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8
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SECTION 2.08.
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Payments and Computations
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8
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SECTION 2.10.
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Use of Proceeds
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9
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SECTION 2.11.
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Evidence of Debt
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10
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ARTICLE III
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CONDITIONS TO EFFECTIVENESS AND
LENDING
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10
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SECTION 3.01.
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Conditions Precedent to Effectiveness of Section
2.01
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10
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SECTION 3.02.
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Conditions Precedent to Each
Borrowing
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11
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
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12
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SECTION 4.01.
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Representations and Warranties of the
Borrower
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12
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ARTICLE V
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COVENANTS OF THE BORROWER
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13
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SECTION 5.01.
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Affirmative Covenants
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13
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SECTION 5.02.
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Negative Covenants
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14
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ARTICLE VI
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EVENTS OF DEFAULT
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15
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SECTION 6.01.
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Events of Default
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15
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ARTICLE VII
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MISCELLANEOUS
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16
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SECTION 7.01.
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Amendment, Etc
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16
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SECTION 7.02.
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Notices, Etc
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16
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SECTION 7.03.
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No Waiver; Remedies
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16
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SECTION 7.04.
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Costs and Expenses
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16
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SECTION 7.05.
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Right of Set-off
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17
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SECTION 7.06.
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Binding Effect
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17
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SECTION 7.07.
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Assignments and Participations
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17
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SECTION 7.08.
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Severability
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18
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SECTION 7.09.
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Electronic Execution of Assignments
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18
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SECTION 7.10.
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Governing Law
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18
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SECTION 7.11.
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Execution in Counterparts
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18
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SECTION 7.12.
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Jurisdiction; Waiver of Immunities
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18
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SECTION 7.13.
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Waiver of Jury Trial
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19
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Exhibits
Exhibit A - Form of Promissory
Note
Exhibit B - Form of Notice of
Borrowing
Exhibit C - Form of Assignment and
Acceptance
Exhibit D - Form of Legal
Opinion
Exhibit E - Form of Pledge
Agreement
CREDIT AGREEMENT
This Credit Agreement, dated as of
May 3, 2009 (this “ Agreement ” ),
is entered into by and between Greenlady Corp., a Delaware
corporation (the “ Borrower ” ),
and The DIRECTV Group, Inc., a Delaware corporation (“
DTV ” ), as Lender (as hereinafter
defined).
PRELIMINARY STATEMENTS :
A. The
Borrower is a wholly owned subsidiary of Liberty Entertainment,
Inc. (“ LEI ” ), and LEI has been
formed for the purpose of receiving and holding certain of the
assets and liabilities attributed to Liberty Media
Corporation’s (“ LMC ” )
Liberty Entertainment group.
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B.
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LEI is a wholly-owned subsidiary of
LMC.
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C. In
accordance with the Reorganization Agreement (as hereinafter
defined) to which LEI and LMC are parties and the Restated
Certificate of Incorporation of LMC, LMC will effect the redemption
of 90% of the issued and outstanding shares of LMC’s Liberty
Entertainment common stock for all of the issued and outstanding
shares of common stock of LEI, subject to the conditions set forth
in the Reorganization Agreement, with the effect that LEI and its
subsidiaries (including the Borrower) will be split-off (the
“ Split-Off ” ) from LMC and cease
to be wholly owned subsidiaries of LMC.
D. Greenlady
II, LLC, a Delaware limited liability company and a wholly owned
subsidiary of the Borrower (“ Greenlady II
” ), is party to that certain Collar Transaction (as
defined below).
E. To
provide Greenlady II with a source of financing to meet its
obligations under the Collar Transaction and the BOA Credit
Agreement (as defined below) after the Spit-Off, and to provide the
Borrower with a source of financing to refinance certain advances
under the LMC Credit Agreement, the Borrower has requested that DTV
establish this credit facility pursuant to which the Borrower may
obtain loans in the aggregate principal amount at any time
outstanding not to exceed U.S. $650,000,000.
In consideration of the foregoing
recitals, the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be bound
legally, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING
TERMS
SECTION 1.01. Certain Defined
Terms . As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms
defined):
“ Advance
” has the
meaning specified in Section 2.01.
“ Affiliate
” means, as to
any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of
this definition, the term “ control”
(including the terms “
controlling” , “ controlled
by” and “
under common control with” ) of a Person means the
possession, direct or indirect, of the power to
vote 50% or more of the Voting Stock
of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of Voting Stock, by contract or otherwise. For purposes
of this Agreement, DIRECTV shall be deemed to not be an Affiliate
of the Borrower.
“ Applicable
Margin ” means 5.0% per annum.
“ Assignment and
Acceptance ” means an assignment and acceptance entered into
by the Lender and an assignee of the Lender in substantially the
form of Exhibit C hereto.
“ Bank of
America ” means Bank of America, N.A.
“ BOA Credit
Agreement ” means that certain Credit Agreement, dated as of
April 9, 2008, between Greenlady II and Bank of America.
“ Borrowing
” means a
borrowing consisting of an Advance made by the Lender pursuant to
Section 2.01.
‘‘ Business
Day ” means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to the Advances, on which dealings
are carried on in the London, England interbank market.
“ Collar
Agreement ” has the meaning specified in the 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 Master
Confirmation and six Supplemental Confirmations, each dated April
9, 2008, between Greenlady II and Bank of America, each subject to
an agreement in the form of an ISDA Master Agreement entered into
between Greenlady II and Bank of America for the purposes of
replacing and superseding the Transaction Acknowledgement (such
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.
“ Collateral
” has the
meaning assigned to such term in the Pledge Agreement.
“ Commitment
” means
U.S.$650,000,000, as such amount may be reduced from time to time
in accordance with the terms hereof.
“ Consolidated
” refers to the
consolidation of accounts in accordance with GAAP.
“ Debt
” of any Person
means, without duplication, (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services (other than trade payables
not overdue by more than 60 days incurred in the ordinary course of
such Person’s business), (c) all obligations of such Person,
evidenced by notes, bonds, debentures or other similar instruments,
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property),
(e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital
leases, (f) all obligations, contingent or otherwise, of such
Person in respect of acceptances, letters of credit or similar
extensions of credit, (g) all
obligations of such Person in
respect of Hedge Agreements, (h) all obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in
respect of any equity interests in such Person or any other Person
or any warrants, rights or options to acquire such equity
interests, (i) all Debt of others referred to in clauses (a)
through (h) above or clause (j) below and other payment obligations
(collectively, “ Guaranteed Debt ”
) guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Guaranteed Debt or
to advance or supply funds for the payment or purchase of such
Guaranteed Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of such
Guaranteed Debt or to assure the holder of such Guaranteed Debt
against loss, (3) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such
services are rendered) or (4) otherwise to assure a creditor
against loss, and (j) all Debt referred to in clauses (a) through
(i) above (including Guaranteed Debt) secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such
Debt.
“ Default
” means any
Event of Default or any event that would constitute an Event of
Default but for the requirement that notice be given or time elapse
or both.
“ DIRECTV
” means DTV and
its Subsidiaries.
“ DTV Stock
” means the common stock, par value $0.01 per share, of The
DIRECTV Group, Inc.
“ DTV Stock Equivalent
Amount ” means, as of any date of determination, the
number of shares of DTV Stock (rounded to nearest whole number)
equal to (i) the aggregate principal amount of the Advances then
outstanding, plus the accrued and unpaid interest thereon, divided
by (ii) the Average Price. “ Average Price
” shall mean the arithmetic mean of the NASDAQ Official
Closing Price as indicated on Bloomberg Page “DTV.UQ
<Equity> HP <GO>” (or any successor or
replacement page) or, if such price is not available, the closing
price as reported in The Wall Street Journal, of DTV Stock on each
Wednesday (or, if such day is not a Trading Day, on the first
Trading Day immediately following such day) during the six month
period ending immediately prior to such date of
determination.
“ Effective Date
” has the
meaning specified in Section 3.01.
“ Eurodollar
Rate ” means, for any Interest Period for any Advance,
the interest rate per annum equal to the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBOR01 Page (or any successor page or substitute
service providing quotations of interest rates applicable to U.S.
Dollar deposits in the London interbank market as designated by the
Lender from time to time) as the London interbank offered rate for
deposits in U.S. Dollars at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period for a maturity
comparable to such Interest Period; provided ,
however , if more than one rate is specified on such page,
the applicable rate shall be the arithmetic mean of all such rates;
provided furthe r that, if for any reason such rate is not
available, the term “ Eurodollar Rate”
shall mean, for any Interest Period
applicable to any Advance, the rate per annum at which deposits of
U.S. $5,000,000 are offered by the principal office of Bank of
America, N.A. in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period for a maturity
comparable to such Interest Period.
“ Events of
Default ” has the meaning specified in Section
6.01.
“ Existing Debt
” has the
meaning specified in Section 5.02(b).
“ GAAP”
means generally accepted accounting principles in the United
States.
“ Governmental
Authority ” means the government of the United States or any
other nation, or of any political subdivision thereof, whether
state, provincial or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the
European Union or the European Central Bank).
“ Hedge
Agreements ” means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
“ Interest
Period ” means, for each Advance, the period commencing
on the date of such Advance (or January 1, 2010, as applicable) and
ending on the last day of the one month period thereafter and,
thereafter, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last
day of the one month period thereafter; provided ,
however , that:
(i) whenever
the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day,
provided , however , that, if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(ii) whenever
the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day
in the calendar month that succeeds such initial calendar month by
the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month.
“ 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.
“ Lender
” means DTVor
any Person that shall become a party hereto pursuant to Section
7.07.
“ Lien
” means any
lien, security interest or other charge or encumbrance of any kind,
or any other type of preferential arrangement, including the lien
or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real
property.
“ LMC Credit
Agreement ” means that Revolving Credit Agreement, dated as
of May 3, 2009 between Greenlady Corp. and Liberty Media
Corporation.
“ Loan Documents
” means this Agreement, the Note, the Pledge Agreement and
each certificate, agreement or document executed by the Borrower
and delivered to the Lender in connection with or pursuant to any
of the foregoing.
“ Material Adverse
Change ” means any material adverse change in the
business, condition (financial or otherwise), operations or
performance of the Borrower and its Subsidiaries (including for
this purpose DIRECTV) taken as a whole.
“ Material Adverse
Effect ” means a material adverse effect on (a) the
business, condition (financial or otherwise), operations or
performance of the Borrower and its Subsidiaries (including for
this purpose DIRECTV) taken as a whole, (b) the rights and remedies
of the Lender under this Agreement or any Note or (c) the ability
of the Borrower to perform its obligations under this Agreement or
any Note.
“ Merger
Agreement ” means the Agreement and Plan of Merger, dated as
of May 3, 2009, by and among LMC, LEI, DTV, DIRECTV, DTVG One, Inc.
and DTVG Two, Inc.
“ NASDAQ ”
means The NASDAQ Global Select Market, and any successor
thereto.
“ Note
” means the
promissory note of the Borrower payable to the order of the Lender,
in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to the Lender resulting from
the Advances made by the Lender.
“ Notice of
Borrowing ” has the meaning specified in Section
2.02.
“ Obligations
” means the Advances and all other amounts, obligations,
covenants and duties owing by the Borrower to the Lender or any
Indemnified Party, of every type and description (whether by reason
of an extension of credit, loan, advance, indemnification or
otherwise), present or future, arising under this Agreement or any
other Loan Document, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become
due, now existing or hereafter arising and however acquired and
whether or not evidenced by any note, guaranty or other instrument
or for the payment of money, including all fees, interest, charges,
expenses, attorneys’ fees and disbursements and other sums
chargeable to the Borrower under this Agreement or any other Loan
Document.
“ Parent
Guarantee ” means the Guaranty of Liberty Media LLC in favor
of Bank of America related to the Collar Transaction and dated as
of April 2, 2008.
“ Permitted
Liens ” means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be
paid under Section 5.0l(b) hereof; (b) Liens imposed by law, such
as materialmen’s, mechanics’, carriers’,
workmen’s and repairmen’s Liens and other similar Liens
arising in the ordinary course of business securing obligations
that are not overdue for a period of more than 30 days; (c) pledges
or deposits to secure obligations under workers’ compensation
laws or similar legislation or to secure public or statutory
obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to
the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present
purposes.
“ Permitted
Payments ” has the meaning specified in Section
2.10.
“ Permitted
Refinancing ” has the meaning specified in Section
2.10.
“ Person
” means an
individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government
or any Governmental Authority.
“ Pledge
Agreement ” means the Pledge Agreement to be entered into
between the Lender and the Borrower, in substantially the form
attached hereto as Exhibit E .
“ Reorganization
Agreement ” means the Reorganization Agreement to be entered
into by LEI and LMC in substantially the form attached as Exhibit B
to the Merger Agreement.
“ Split-Off Effective
Time ” means the Effective Time at which the Redemption
occurs on the Redemption Date (as those terms are defined in the
Reorganization Agreement).
“ Subsidiary
” of any Person
means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than
50% of (a) the issued and outstanding capital stock having ordinary
voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of
any oilier class or classes of such corporation shall or might have
voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial
interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such
Person’s other Subsidiaries. For purposes of this Agreement,
DIRECTV and Greenlady II, LLC shall be deemed to not be
Subsidiaries of the Borrower except to the extent expressly set
forth herein.
“ Termination
Date ” means the earliest of (i) the date of
termination of the Commitment pursuant to Section 6.01, (ii) the
date of termination of the Merger Agreement pursuant to Section 9.1
thereof and (iii) the Closing Date (as defined in the Merger
Agreement).
“ Trading Day
” means any day on which NASDAQ is scheduled to be open for
trading for regular trading sessions and is open for trading during
regular trading sessions, notwithstanding NASDAQ closing prior to
its scheduled closing time.
“ Transaction
Acknowledgement ” means the Cashless Collar,
Transaction Acknowledgement, dated as of April 2, 2008, among
Liberty Media LLC, Greenlady II and Bank of America and regarding
the collared share option transaction on certain shares of DTV
Stock between Bank of America and Greenlady II.
“ United States
” or “
U.S. ” means the United States of America.
“ Unused
Commitment ” means, at any time, the Lender’s
Commitment at such time minus the aggregate principal amount of all Advances
outstanding at such time.
“ U.S. Dollars
” , “ U.S. $ ”
and “ $
” means the
lawful currency of the United States.
“ Voting Stock
” means capital
stock issued by a corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the
right so to vote has been suspended by the happening of such a
contingency.
SECTION 1.02. Computation of Time
Periods . In this Agreement in the computation of periods of
time from a specified date to a later specified date, the word
“ from” means “ from and
including”
and the words “
to” and “
until” each mean
“ to but excluding” . References in this
Agreement to any agreement or contract shall mean and be a
reference to such agreement or contract as amended, amended and
restated, supplemented or otherwise modified from time to time in
accordance with its terms to the extent such amendment,
restatement, supplement or other modification is not prohibited
hereunder. In this Agreement, the words “
include ,” “ includes
” and “
including ” shall be deemed to be followed by the phrase
“ without limitation” and the word “ will
” shall be
construed to have the same meaning and effect as the word “
shall.” Unless
the context requires otherwise, (a) any reference in this Agreement
to any Person shall be construed to include such Person’s
successors and assigns, (b) the words “ herein
,” “
hereof ” and “ hereunder
,” and words of
similar import, when used in this Agreement shall be construed to
refer to this Agreement in its entirety and not to any particular
provision hereof, (c) all references in this Agreement to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this
Agreement, (d) any reference to any law or regulation in this
Agreement shall, unless otherwise specified, refer to such law or
regulation as amended, modified or supplemented from time to time
and (e) the words “ asset ”
and “ property
” shall be
construed to have the same meaning and effect and refer to any and
all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
ARTICLE II
AMOUNTS AND TERMS OF THE
ADVANCES
SECTION 2.01. The Advances .
The Lender agrees, on the terms and conditions hereinafter set
forth, to make advances (each an “ Advance
”) to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Termination
Date in an amount for each such Advance not to exceed the
Lender’s Unused Commitment at such time; provided ,
however , that the aggregate principal amount of all
Advances by the Lender shall not exceed the Commitment. Amounts
borrowed under this Section 2.01 and prepaid pursuant to Section
2.06 may not be reborrowed under this Section 2.01.
SECTION 2.02. Making the
Advances . Each Borrowing shall be made on notice, given not
later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Borrowing, by the Borrower to
the Lender. Each notice of Borrowing (a “ Notice of
Borrowing ” ) shall be in writing (which may
be by telecopier or electronic communication), in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date
of the Borrowing (which shall be a Business Day) and (ii) the
amount of such Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III, the Lender will make the funds
available to the Borrower at its address referred to in Section
7.02.
SECTION 2.03. Repayment . The
Borrower shall repay to the Lender on the Termination Date (other
than a Termination Date occurring under clause (iii) of the
definition thereof) the aggregate principal amount of the Advances
then outstanding.
SECTION 2.04. Interest . (a)
Scheduled Interest . The Borrower shall pay interest on the
unpaid principal amount of each Advance owing to the Lender from
the date of such Advance until such principal amount shall be paid
in full, at a rate per annum equal to (i) from the Effective Date
until December 31, 2009, 3.5%, payable in arrears on December 31,
2009 and on the date such Advance shall be paid in full and (ii) on
and after January 1, 2010, at all times during each Interest
Period, the sum of (x) the Eurodollar Rate for such Interest Period
plus (y) the Applicable Margin, payable in arrears on the last day
of such Interest Period and on the date such Advance shall be paid
in full.
(b)
Default Interest . Upon the occurrence and during the
continuance of a Default under Section 6.01(a) or (b) or an Event
of Default, the Lender may require the Borrower to pay interest
(“ Default Interest ” ) on (i) the
unpaid principal amount of each Advance owing to the Lender,
payable in arrears on the dates referred to in clause (a) above and
(ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid
when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount
shall be paid in full and on demand, in each case at a rate per
annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (a) above;
provided , however , that following acceleration of
the Advances pursuant to Section 6.01, Default Interest shall
accrue and be payable hereunder whether or not previously required
by the Lender.
SECTION 2.05. [Reserved.]
SECTION 2.06. Optional
Prepayments . The Borrower may, without payment of any premium
or penalty and upon at least three Business Days’ notice to
the Lender stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given the Borrower shall,
prepay the outstanding principal amount of the Advances in whole or
in part, together with accrued i
