Exhibit 4.8
EXECUTION COPY
DISCOVERY COMMUNICATIONS, INC.
FIRST AMENDMENT
Dated As Of April 11, 2007
to
AMENDED AND RESTATED
NOTE PURCHASE AGREEMENTS
Dated As Of March 9, 2001
Amended and Restated as of November 4, 2005
FIRST AMENDMENT TO NOTE AGREEMENTS
THIS FIRST AMENDMENT dated as
of April 11, 2007 to the Amended and Restated Note Purchase
Agreements each dated as of March 9, 2001 and amended and
restated as of November 4, 2005 is between Discovery
Communications, Inc., a Delaware close corporation (the
“Company”), and each of the holders listed on
Schedule A that is a signatory hereto (the
“Noteholders”).
RECITALS:
A. The Company and the
Purchasers have heretofore entered into the separate Amended and
Restated Note Purchase Agreements each dated as of March 9,
2001 and amended and restated as of November 4, 2005 (the
“Note Agreements”). The Company has heretofore issued
the $180,000,000 of 8.06% Series B Senior Unsecured Notes due
March 9, 2008 and the $220,000,000 of 8.37% Series C
Senior Unsecured Notes due March 9, 2011 (the
“Notes”) pursuant to the Note Agreements. Capitalized
terms used herein without other definition shall have the
respective meanings given in the Note Agreements.
B. The Company and the
Noteholders now desire to amend the Note Agreements in the
respects, but only in the respects, hereinafter set forth.
NOW, THEREFORE , the Company
and the Noteholders, in consideration of good and valuable
consideration the receipt and sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1 Section 7.2(a) is hereby
amended by deleting the word “and” immediately prior to
“( ii )” and inserting a “,” in lieu
thereof, and adding the following immediately after
“percentage then in existence” and prior to
“)”: “and ( iii ) a reasonably detailed
statement setting forth the computation of the amount of Related
Taxes and Permitted Expenses for such period”.
1.2 Section 9.5 of the Note
Agreements is hereby amended to read in its entirety as
follows:
“9.5 Corporate Existence,
etc . Subject to Section 10.7 , the Company will at
all times preserve and keep in full force and effect its corporate
or (if applicable) limited liability company existence. Subject to
Section 10.5 and Section 10.7 , the Company
will at all times preserve and keep in full force and effect the
corporate or other entity existence of each of its Restricted
Subsidiaries (unless merged into the Company or another Restricted
Subsidiary or all of its assets and liabilities are transferred to
the Company or another Restricted Subsidiary, by liquidation or
otherwise) and all rights and franchises of the Company and its
Restricted Subsidiaries unless, in the good faith judgment of the
Company, the termination of or failure to preserve and keep in full
force and effect such corporate or other entity existence, right or
franchise could not, individually or in the aggregate, have a
Material Adverse Effect.”
1.3 Section 9.6(a) of the Note
Agreements is hereby amended by (a) deleting the words
“Guarantee of any Indebtedness” and inserting
“Guaranty of any Indebtedness” in lieu thereof and
(b) deleting the words “Guarantee of the Notes”
and inserting “Guaranty of the Notes” in lieu
thereof.
1.4 Section 10.4 of the Note
Agreements is hereby amended by (a) inserting
“(a)” immediately after the heading thereof,
(b) inserting the word “Adjusted” immediately
after the words “50% of the” and immediately after the
words “ provided , that , if” in each
case in clause (i) thereof, (c) inserting the phrase
“pursuant to this subsection (a)” immediately prior to
“, less any return of capital”, and
(d) inserting a new subsection (b) at the end thereof as
follows:
“(b) Notwithstanding the
foregoing, after Holdco has been organized the Company may make
Restricted Payments to Holdco in amounts equal to Related Taxes and
Permitted Expenses without affecting the Net Amount of Restricted
Payments and Investments.”
1.5 Section 10.6 of the Note
Agreements is hereby amended to add an additional sentence at the
end thereof to read in its entirety as follows:
“Notwithstanding the foregoing,
employees of the Company and its Restricted Subsidiaries may
provide management, accounting, legal and related services to
Holdco, provided that if Holdco acquires any Subsidiary or
group of assets other than the Company, the Subsidiaries of the
Company and the assets owned by the Company and its Subsidiaries,
such services shall only be provided to the extent they relate to
such other Subsidiary or group of assets in consideration of fees
payable by Holdco in cash based on a reasonable prorated amount of
the cash compensation of such employees paid by the Company and/or
its Restricted Subsidiaries.”
1.6 Section 10.7 of the Note
Agreements is hereby amended to read in its entirety as
follows:
“10.7. Merger,
Consolidation, Transfer of Substantially All Assets . The
Company will not consolidate or merge with any other Person or
convey, transfer or lease all or substantially all of its assets in
a single transaction or series of transactions (including by way of
liquidation) to any Person except that the Company may consolidate
or merge with, or sell, lease or otherwise dispose of all or
substantially all of its assets to, any other corporation or
limited liability company if ( i ) either ( A ) in
the case of a merger or consolidation, the Company shall be the
surviving or continuing corporation or limited liability company,
or ( B ) the surviving, continuing or resulting Person or
the Person that purchases, leases, or otherwise acquires all or
substantially all of the assets of the Company (the “
Successor Company ”) ( 1 ) is a solvent
corporation or limited liability company organized under the laws
of any State of the United States or the District of Columbia and (
2 ) expressly and unconditionally assumes the due and
punctual performance of all obligations of the Company hereunder
and under the Notes by an instrument in writing delivered to each
holder of Notes, and the Successor Company shall deliver to the
holders of the Notes an opinion of nationally recognized
independent counsel, in form and substance reasonably satisfactory
to the Majority Holders, to the effect that such written assumption
has been duly authorized, executed and delivered by such Successor
Company and constitutes a legal, valid and binding obligation
enforceable against such Successor Company in accordance with its
terms, and as to such other matters incident to such transactions
as the Majority Holders may reasonably request; and ( ii )
at the time of such transaction and after giving effect thereto no
Default or Event of Default shall have occurred and be continuing
(and the Company shall have delivered an Officer’s
Certificate to the holders of the Notes to such effect).
“The Company may also convert
to a limited liability company under applicable state law, provided
that ( x ) upon such conversion the resulting limited
liability company shall expressly and unconditionally ratify and
confirm the due and punctual performance of all obligations of the
Company hereunder and under the Notes by an instrument in writing
delivered to each holder of Notes, and shall deliver to the holders
of the Notes an opinion of nationally recognized independent
counsel, in form and substance reasonably satisfactory to the
Majority Holders, to the
