Exhibit 4.12
EXECUTION COPY
DISCOVERY COMMUNICATIONS, INC.
FIRST AMENDMENT
Dated As Of April 11, 2007
to
NOTE PURCHASE AGREEMENTS
Dated As Of December 1, 2005
FIRST AMENDMENT TO NOTE AGREEMENTS
THIS FIRST AMENDMENT dated as
of April 11, 2007 to the Note Purchase Agreements each dated
as of December 1, 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 Note Purchase
Agreements each dated as of December 1, 2005 (the “Note
Agreements”). The Company has heretofore issued the
$390,000,000 of 6.01% Series A Senior Unsecured Notes due
December 1, 2015 and the $90,000,000 of Floating Rate
Series B Senior Unsecured Notes due December 1, 2012 (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 (a) deleting the reference to “
10.2(iv) ” and inserting “ 10.2(v)
” in lieu thereof, (b) deleting the reference to “
10.5(iv) ” and inserting “ 10.5(v)
” in lieu thereof, (c) inserting “( i
)” following the word “including” in the
parenthetical and (d) adding the following immediately after
“percentage then in existence” and prior to
“)”: “and ( ii ) 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 of the Note
Agreements is hereby amended to read in its entirety as
follows:
“9.6. Subsidiary
Guarantors .
“(a) The Company will not
permit any Subsidiary to enter into any Guaranty of any
Indebtedness of the Company under any Group Debt Facility (a
“ Group Debt Facility Guarantee ”) unless such
Subsidiary simultaneously executes and delivers a Guaranty of the
Notes (a “ Subsidiary Guarantee ”)
on terms
substantially similar to such Group Debt Facility Guarantee, except
as may be otherwise required by Section 9.6(b) .
“(b) Notwithstanding any other
provision of this Agreement, any Subsidiary Guarantee shall provide
by its terms that such Subsidiary Guarantee shall be
unconditionally released and discharged upon ( i ) any sale,
exchange or transfer of all of the common equity or equivalent
ownership interest held by the Company or any Subsidiary in, or all
or substantially all the assets of, the obligor on such Subsidiary
Guarantee (the “ Subsidiary Guarantor ”), or any
other sale or disposition (by merger or otherwise) of such
Subsidiary Guarantor or any interest therein following which such
Person is no longer a Subsidiary, which is in compliance with this
Agreement, ( ii ) the release by the holders of the Group
Debt Facility Indebtedness of the Company of their Group Debt
Facility Guarantee by such Subsidiary Guarantor (including any
deemed release upon payment in full of all obligations under such
Group Debt Facility Indebtedness), which release occurs at a time
when ( A ) no other Group Debt Facility Indebtedness of the
Company remains guaranteed by such Subsidiary Guarantor, or (
B ) the holders of all such other Group Debt Facility
Indebtedness which would otherwise remain guaranteed by such
Subsidiary Guarantor also release their Group Debt Facility
Guarantee by such Subsidiary Guarantor (including any deemed
release upon payment in full of all obligations under such Group
Debt Facility Indebtedness), ( iii ) merger or consolidation
of such Subsidiary Guarantor with and into the Company or another
Subsidiary Guarantor or ( iv ) payment in full of the
aggregate principal amount of the Notes then outstanding, any
interest then accrued thereon and unpaid and any Make Whole-Amount,
if applicable; provided that, in each case specified in the
foregoing clauses (i) through (iv), ( 1 ) after giving
effect to such release and discharge no Default or Event of Default
shall have occurred and be continuing, ( 2 ) no amount is
then due and payable under the Subsidiary Guarantee by such
Subsidiary Guarantor, ( 3 ) such Subsidiary Guarantor is not
at the time a guarantor under any other Group Debt Facility
Guarantee that is not also concurrently being released and
discharged and ( 4 ) the Company shall have given notice
accompanied by a certificate of a Senior Financial Officer to
certify compliance with the foregoing requirements. Upon any such
occurrence specified in this Section 9.6(b) , and upon
receipt of the certificate described in clause (4) of the
preceding proviso the holders shall, at the Company’s
expense, execute any documents reasonably required by the Company
in order to evidence such release, discharge and termination in
respect of such Subsidiary Guarantee.
“(c) Neither the Company nor
any such Subsidiary Guarantor shall be required to make a notation
on the Notes to reflect any such Subsidiary Guarantee or any such
release, termination or discharge.
“(d) The obligations of each
Subsidiary Guarantor under its Subsidiary Guarantee will be limited
to the maximum amount, as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor,
result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under applicable law, or being void or
unenforceable under any law relating to insolvency of
debtors.”
1.4 Section 10.2 of the Note
Agreements is hereby amended by (a) deleting the word
“and” from the end of clause (iii), (b) inserting
the following as new clause (iv): “(iv) Indebtedness for
Money Borrowed of Subsidiary Guarantors owing in respect of Group
Debt Facility Guarantees executed in conformity with the provisions
of Section 9.6 ; and”, (c) re-numbering
existing clause (iv) as clause “(v)”,
(d) deleting in new clause (v) the words “clauses
(i) through (iii)” and inserting “clauses
(i) through (iv)” in lieu thereof and (e) deleting
in new clause (v) the words “pursuant to this clause
(iv)” and inserting “pursuant to this clause (v)”
in lieu thereof.
2
1.5 Section 10.3 of the Note
Agreements is hereby amended by deleting in clause (xi) the
reference to “ Section 10.2(iv) ” and
inserting “ Section 10.2(v) ” in lieu
thereof.
1.6 Section 10.4 of the Note
Agreements is hereby amended to read in its entirety as
follows:
“10.4. Restricted Payments
and Investments .
“(a) The Company will not, and
will not permit any Restricted Subsidiary to, make any Restricted
Payment or Restricted Investment if at the time of making the same
and after giving effect thereto ( A ) any Default or
Event of Default exists or would exist or ( B ) the Net
Amount of Restricted Payments and Investments would exceed the sum
of ( 1 ) $75,000,000, plus ( 2 ) the greater
of ( i ) 50% of the Adjusted Net Income (if positive ) of
the Company and its Restricted Subsidiaries for each fiscal year
subsequent to December 31, 2000 (the “ Net Income
Account ”), provided , that , if Adjusted
Net Income of the Company and its Restricted Subsidiaries for any
fiscal year subsequent to December 31, 2000 shall be negative,
50% of such negative amount shall be subtracted from the Net Income
Account, but only to the extent, if any, that the Net Income
Account exceeds zero, and ( ii ) $25,000,000 for each fiscal
year subsequent to December 31, 2000, plus (3) the
Net Issuance Proceeds of any New Equity issued after the date
hereof. For purposes of the foregoing, the “ Net Amount of
Restricted Payments and Investments ” as of any date of
determination shall mean the sum of all Restricted Payments and
Restricted Investments (valued at cost) made after
December 31, 2000 made by the Company and its Restricted
Subsidiaries pursuant to this subsection (a), less any
return of capital (but not any earnings thereon) received by the
Company or any Restricted Subsidiary in respect of any such
Restricted Investment.
“(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.”
1.7 Section 10.5 of the Note
Agreements is hereby amended by deleting the words “cash
equivalent investments at the Company’s discretion” in
the second sentence of clause (v) thereof and inserting the
words “Investments of the type listed in clauses (iv),
(v) and (vi) of the definition of Restricted
Investments” in lieu thereof.
1.8 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.”
1.9 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
3
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 effect that such written ratification and
confirmation has been duly authorized, executed and delivered by
such resulting limited liability company and each of such
ratifications and confirmations, and this Agreement and the Notes,
constitutes a legal, valid and binding obligation enforceable
against such limited liability company in accordance with its
terms, and as to such other matters incident to such transactions
as the Majority Holders may reasonably request; and ( y ) at
the time of such conversion 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).
“No such conveyance, transfer
or lease of all or substantially all of the assets of the Company
shall have the effect of releasing the Company or any Successor
Company that shall theretofore have become such in the manner
prescribed in this Section 10.7 from its liability
under this Agreement or the Notes.”
1.10 A new Section 10.9 is
hereby added in numerical order to read as follows:
“10.9 Limitation on Certain
Guaranties . The Company will not and will not permit any
Restricted Subsidiary to create, assume, incur or otherwise become
or remain obligated in respect of, or permit to be outstanding, any
Guaranty of Indebtedness for Money Borrowed of Holdco or of any
Subsidiary of Holdco that is not the Company or a Subsidiary of the
Company, provided that this Section 10.9 shall
not be construed to permit any Guaranty otherwise restricted by
Section 10.2 .”
1.11 Sche
| 
