exv4w12







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 Schedule B (Defined Terms) of the Note Agreements is hereby amended by adding the
following definitions in alphabetical order:



4









 





     ““Adjusted Net Income” means, for any period, Net Income of the Company and its
Restricted Subsidiaries for such period minus (without duplication) Permitted Expenses and Related
Taxes for such period.”



     ““Group Debt Facility Guarantee” is defined in Section 9.6.”



     ““Holdco” means the Delaware limited liability company to be organized by the
Shareholders to be the direct parent and owner of all the outstanding Equity Interests of the
Company in connection with the Split-Off Transaction.”



     ““Investment” shall mean capital contributions to, loans to, repurchase agreements
with, or investments in securities of, a Person.”



     ““Net Amount of Restricted Payments and Investments” is defined in Section
10.4.”



     ““Net Income Account” is defined in Section 10.4.”



     ““Net Issuance Proceeds” shall mean, in respect of any issuance of New Equity, cash
proceeds received or receivable in connection therewith, net of customary out-of-pocket costs and
expenses paid or incurred in connection therewith in favor of any Person.”



     ““New Equity” shall mean (a) any infusion of equity into the Company by the
Shareholders after the date hereof, and (b) any shares of capital stock of or other equity
interests in the Company issued after the date hereof.”



     ““Permitted Expenses” means (i) costs (including all professional fees and
expenses) incurred by Holdco in connection with its reporting obligations under any agreement
governing Indebtedness of Holdco described in clause (x) of the following clause (ii), or a
prorated amount of such costs in respect of Indebtedness described in clause (y) of the following
clause (ii), in each case including in respect of any reports provided to the holders of such
Indebtedness, or in connection with compliance with applicable laws or applicable rules of any
governmental, regulatory or self-regulatory body or stock exchange, and (ii) fees and
expenses incurred by Holdco in connection with any offering of Equity Interests or Indebtedness,
(x) where the net proceeds of such offering are actually received by or contributed or
loaned to the Company or a Restricted Subsidiary, or (y) in a prorated amount of such
expenses in proportion to the amount of such net proceeds actually so received, contributed or
loaned.”



     ““Related Taxes” means (x) any taxes attributable to any taxable period (or
portion thereof) ending on or prior to the date the Company became a wholly-owned subsidiary of
Holdco, or (y) any other federal state or local taxes measured by income for which Holdco
is liable which, with respect to federal taxes, shall be deemed to equal the amount of any such
taxes that the Company and its Subsidiaries would have been required to pay on a separate company
basis (or on a consolidated basis as if the Company had filed a consolidated return on behalf of
any affiliated group (as defined in Section 1504 of the Code) of which it were the common parent)
or with respect to state and local taxes, shall be deemed to equal the amount of any such taxes
that the Company and its Subsidiaries would have been required to pay on a separate company basis
(or on a combined basis as if the Company had filed a combined return on behalf of an affiliated
group consisting only of the Company and its Subsidiaries).”



     ““Restricted Investments” shall mean all Investments other than




     (i) Investments existing as of the date of this Agreement and listed on Schedule 5.4;



5









 






     (ii) loans to employees of the Company and its Restricted Subsidiaries not to exceed
$150,000 to any single employee and $500,000 in the aggregate, at any time outstanding, plus
the amount permitted by the Employee Compensation Plan as it exists on the date of the
Closing;




     (iii) marketable, direct obligations of the United States of America with a maturity of
one year or less;




     (iv) commercial paper with a maturity of 180 days or less issued by any lender under
the Existing Bank Agreement or by corporations, each of which shall have a consolidated net
worth of at least $250,000,000 and each of which conducts a substantial part of its business
in the United States, and rated P-1 or better by Moody’s Investors Service, Inc.;




     (v) certificates of deposit with a maturity of one year or less which are issued by any
lender under the Existing Bank Agreement or by a United States national or state bank having
capital, surplus and undivided profits in excess of $100,000,000 and having a long term
unsecured debt rating of Baa1 or better from Moody’s Investors Service, Inc.;




     (vi) repurchase agreements with respect to Investments of the type described in clauses
(iii), (iv) and (v) above with financial institutions having a long term unsecured debt
rating of Baa1 or better from Moody’s Investors Service, Inc.;




     (vii) Investments in lines of business reasonably related to or in furtherance of the
Company’s existing lines of business in which they are engaged on the date of the Closing,
as described in the Memorandum; and




     (viii) Investments in unrelated lines of business not to exceed $100,000,000 in the
aggregate at any time.”



     ““Split-Off Transaction” means the series of transactions to be entered into pursuant
to that certain letter of intent dated March 28, 2007, among the Company and the Significant
Shareholders.”



     ““Subsidiary Guarantee” is defined in Section 9.6.”



     ““Subsidiary Guarantor” is defined in Section 9.6.”



     1.12 Schedule 5.4 (Subsidiaries) of the Note Agreements is hereby amended by adding the
following to the end thereof:



6









 





     “(v) INVESTMENTS



	 	 	 	 	 
	Investments	 	Shares
	TiVo Inc
	 	 	720,461	 
	 
	RCN Corporation
	 	 	21,905	 
	 
	Internet Pictures Corporation (iPIX)
	 	 	46,154	 
	 
	2953285 Canada Inc.
	 	20% interest
	 
	Meteor Studios, Inc.
	 	50% interest






     In addition, Investments in Subsidiaries.”



     SECTION 2. MISCELLANEOUS.



     2.1 In order to induce the Noteholders to consent to this First Amendment, the Company
represents and warrants to each of the Noteholders that on and as of the date hereof, both before
and after giving effect to this First Amendment, no Default or Event of Default (in each case as
defined in the Note Agreements) has occurred and is continuing.



     2.2 By its execution of this First Amendment, each Noteholder that is a signatory hereto
indicates that it is satisfied with Amendment No. 3, dated as of April 6, 2007, to the Existing
Bank Agreement.



     2.3 This First Amendment shall be construed in connection with and as part of the Note
Agreements, and except as modified and expressly amended by this amendment, all terms, conditions
and covenants contained in the Note Agreements and the Notes are hereby ratified and shall be and
remain in full force and effect. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this amendment may refer to the Note
Agreements without making specific reference to this amendment but nevertheless all such references
shall be deemed to include this amendment unless the context otherwise requires. This First
Amendment shall be governed by and construed in accordance with the laws of the State of New York
excluding choice-of-law principles of the law of such State that would require the application of
the laws of a jurisdiction other than such State.



     IN WITNESS WHEREOF, the Company and the Noteholders have caused this instrument to be
executed, all as of the day and year first above written.



[Signature Pages Follow]




7









 








	 	 	 	 	 
	Accepted and Agreed to
as of the date thereof:	 	 
	 
	 	 	 	 
	DISCOVERY COMMUNICATIONS, INC.	 	 
	 
	 	 	 	 
	By:
	 	/s/ J. Michael Suffredini 	 	 
	Name:

	 	 J. Michael Suffredini 

	 	 
	Title:
	 	Senior Vice President and Treasurer 	 	 







 












 





	 	 	 	 	 
	ALLSTATE LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 
	By:

	 	/s/ Mark Cloghessy
 

	 	 
	Name:

	 	Mark Cloghessy	 	 
	 
	 	 	 	 
	By:

	 	/s/ Charles Mires	 	 
	 

	 	 	 	 
	Name:

	 	Charles Mires	 	 
	 
	 	 	 	 
	Authorized Signatories	 	 
	 
	 	 	 	 
	ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK	 	 
	 
	 	 	 	 
	By:

	 	/s/ Mark Cloghessy	 	 
	 

	 	 	 	 
	Name:

	 	Mark Cloghessy	 	 
	 
	 	 	 	 
	By:

	 	/s/ Charles Mires	 	 
	 

	 	 	 	 
	Name:

	 	Charles Mires	 	 






Authorized Signatories




[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








	 	 	 	 	 	 	 
	METROPOLITAN LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Erik V. Savi	 	 
	 	 	 	 	 
	Name:	 	Erik V. Savi	 	 
	Title:	 	Director	 	 
	 
	 	 	 	 	 	 
	METLIFE INVESTORS USA INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	METLIFE INVESTORS INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	By:	 	Metropolitan Life Insurance Company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Erik V. Savi	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Erik V. Savi	 	 
	 

	 	Title:
	 	Director	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








	 	 	 	 	 	 	 
	NATIONAL LIFE INSURANCE COMPANY	 	 
	By:	 	Sentinel Asset Management	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Scott Higgins
 

	 	 
	 

	 	Name:
	 	R. Scott Higgins	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	LIFE INSURANCE COMPANY OF THE SOUTHWEST	 	 
	By:	 	Sentinel Asset Management	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Scott Higgins
 

	 	 
	 

	 	Name:
	 	R. Scott Higgins	 	 
	 

	 	Title:
	 	Vice President	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]





 









 








	 	 	 	 	 	 	 	 	 
	THE PRUDENTIAL LIFE INSURANCE COMPANY, LTD.	 	 
	By:	 	Prudential Investment Management (Japan), Inc., as Investment Manager	 	 
	 	 	By:	 	Prudential Investment Management, Inc., as Sub-Adviser	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	GIBRALTAR LIFE INSURANCE CO., LTD.	 	 
	By:	 	Prudential Investment Management (Japan), Inc., as Investment Manager	 	 
	 	 	By:	 	Prudential Investment Management, Inc., as Sub-Adviser	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	MTL INSURANCE COMPANY	 	 
	By:	 	Prudential Private
Placement Investors, L.P. (as Investment Advisor)	 	 
	 	 	By:	 	Prudential Private Placement Investors, Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	PHYSICIANS MUTUAL INSURANCE COMPANY	 	 
	By:	 	Prudential Private Placement Investors, L.P. (as Investment Advisor)	 	 
	 	 	By:	 	Prudential Private Placement Investors, Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 









	 	 	 	 	 	 	 	 	 
	AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, INC.	 	 
	By:	 	Prudential Private
Placement Investors, L.P. (as Investment Advisor)	 	 
	 	 	By:	 	Prudential Private Placement Investors, Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	AMERICAN MEMORIAL LIFE INSURANCE COMPANY	 	 
	By:	 	Prudential Private Placement Investors, L.P. (as Investment Advisor)	 	 
	 	 	By:	 	Prudential Private Placement Investors, Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	UNION SECURITY INSURANCE COMPANY	 	 
	By:	 	Prudential Private Placement Investors,  L.P. (as Investment Advisor)	 	 
	 	 	By:	 	Prudential Private Placement Investors, Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	TIME INSURANCE COMPANY	 	 
	By:	 	Prudential Private Placement Investors, L.P. (as Investment Advisor)	 	 
	 	 	By:	 	Prudential Private Placement Investors, Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








	 	 	 	 	 	 	 	 	 
	JOHN ALDEN LIFE INSURANCE COMPANY	 	 
	By:	 	Prudential Private Placement Investors, L.P. (as Investment Advisor)	 	 
	 	 	By:	 	Prudential Private Placement Investors, Inc. (as its General Partner)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Yvonne Guajardo
 

	 	 
	 

	 	 	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








	 	 	 	 	 
	TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
	 
	 	 	 	 
	By:

	 	/s/ Lisa M. Ferraro
 

	 	 
	Name:

	 	Lisa M. Ferraro	 	 
	Title:

	 	Director	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








	 	 	 	 	 	 	 
	UNUM LIFE INSURANCE COMPANY OF AMERICA	 	 
	By:	 	Provident Investment Management, LLC, Its Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ben Vance
 

	 	 
	 

	 	Name:
	 	Ben Vance	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY	 	 
	By:	 	Provident Investment Management, LLC, Its Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ben Vance
 

	 	 
	 

	 	Name:
	 	Ben Vance	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	THE PAUL REVERE LIFE INSURANCE COMPANY	 	 
	By:	 	Provident Investment Management, LLC, Its Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ben Vance
 

	 	 
	 

	 	Name:
	 	Ben Vance	 	 
	 

	 	Title:
	 	Vice President	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]





 









 








	 	 	 	 	 	 	 
	THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, SUCCESSOR
BY MERGER TO JEFFERSON — PILOT LIFE INSURANCE COMPANY
	By:	 	Delaware Investment Advisers, a series of Delaware Management
Business Trust, Attorney in Fact	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frank G. LaTorraca
 

	 	 
	 

	 	Name:
	 	Frank G. LaTorraca	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	JEFFERSON PILOT FINANCIAL INSURANCE COMPANY	 	 
	By:	 	Delaware Investment Advisers, a series of Delaware
Management Business Trust, Attorney in Fact	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frank G. LaTorraca
 

	 	 
	 

	 	Name:
	 	Frank G. LaTorraca	 	 
	 

	 	Title:
	 	Vice President	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








	 	 	 	 	 	 	 
	CONNECTICUT GENERAL LIFE INSURANCE COMPANY	 	 
	By:	 	CIGNA Investments, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Deborah B. Wiacek
 

	 	 
	 

	 	Name:
	 	Deborah B. Wiacek	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	LIFE INSURANCE COMPANY OF NORTH AMERICA	 	 
	By:	 	CIGNA Investments, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Deborah B. Wiacek
 

	 	 
	 

	 	Name:
	 	Deborah B. Wiacek	 	 
	 

	 	Title:
	 	Managing Director	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]



 









 







	 	 	 	 	 
	THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
	 
	 	 	 	 
	By:

	 	/s/ Jerome R. Baier
 

	 	 
	Name:

	 	Jerome R. Baier	 	 
	Title:

	 	Its Authorized Representative	 	 





[Signature page to First Amendment to Note Purchase Agreement — 2005]





 












 





	 	 	 	 	 
	MONUMENTAL LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Bill Henricksen
 

Bill Henricksen
	 	 
	Title:

	 	Vice President	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 





	 	 	 	 	 
	PRINCIPAL LIFE INSURANCE COMPANY	 	 
	By:

	 	Principal Global Investors, LLC

a Delaware limited liability company,

its authorized signatory
	 	 






	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Alan P. Kress
 

Alan P. Kress
	 	 
	 

	 	Title:
	 	Counsel	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James C. Fifield
 

James C. Fifield
	 	 
	 

	 	Title:
	 	Assistant General Counsel	 	 






	 	 	 	 	 
	SYMETRA LIFE INSURANCE COMPANY, a Washington corporation
	By:

	 	Principal Global Investors,
LLC, a Delaware

limited liability company, its authorized signatory
	 	 






	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Alan P. Kress
 

Alan P. Kress
	 	 
	 

	 	Title:
	 	Counsel	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James C. Fifield
 

James C. Fifield
	 	 
	 

	 	Title:
	 	Assistant General Counsel	 	 






	 	 	 	 	 
	VANTISLIFE INSURANCE COMPANY, a Connecticut company
	By:

	 	Principal Global Investors, LLC

a Delaware limited liability company,

its authorized signatory
	 	 






	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Alan P. Kress
 

Alan P. Kress
	 	 
	 

	 	Title:
	 	Counsel	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James C. Fifield
 

James C. Fifield
	 	 
	 

	 	Title:
	 	Assistant General Counsel	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 




MELLON
BANK, N.A., SOLELY IN ITS CAPACITY AS CUSTODIAN FOR AVIVA LIFE—PRINCIPAL GLOB PRIV
STRUCTURED SETTLEMENTS IMM ANN (AS DIRECTED BY THE PRINCIPAL GLOBAL INVESTORS, LLC), AND NOT
IN ITS INDIVIDUAL CAPACITY (MAC & CO) — NOMINEE NAME




	 	 	 	 	 
	By: 

Name:

	 	/s/ Bernadette T. Rist
 

Bernadette T. Rist
	 	 
	Title:

	 	Authorized Signatory	 	 





MELLON
BANK, N.A., SOLELY IN ITS CAPACITY AS CUSTODIAN FOR AVIVA LIFE—PRINCIPAL GLOB PRIV
GENERAL ACCOUNT UNIVERSAL LIFE (AS DIRECTED BY THE PRINCIPAL GLOBAL INVESTORS, LLC), AND
NOT IN ITS INDIVIDUAL CAPACITY (MAC & CO) — NOMINEE NAME




	 	 	 	 	 
	By: 

Name:

	 	/s/ Bernadette T. Rist
 

Bernadette T. Rist
	 	 
	Title:

	 	Authorized Signatory	 	 





MELLON
BANK, N.A., SOLELY IN ITS CAPACITY AS CUSTODIAN FOR AVIVA LIFE—PRINCIPAL GLOB PRIV
GENERAL ACCOUNT DEFERRED TSA (AS DIRECTED BY THE PRINCIPAL GLOBAL INVESTORS, LLC), AND NOT
IN ITS INDIVIDUAL CAPACITY (MAC & CO) — NOMINEE NAME




	 	 	 	 	 
	By: 

Name:

	 	/s/ Bernadette T. Rist
 

Bernadette T. Rist
	 	 
	Title:

	 	Authorized Signatory	 	 





MELLON BANK, N.A., SOLELY IN ITS CAPACITY AS CUSTODIAN FOR AVIVA LIFE—PRINCIPAL GLOB PRIV EG
CONVERTIBLE SECURITIES (AS DIRECTED BY THE PRINCIPAL GLOBAL INVESTORS, LLC), AND NOT IN ITS
INDIVIDUAL CAPACITY (MAC & CO) — NOMINEE NAME




	 	 	 	 	 
	By: 

Name:

	 	/s/ Bernadette T. Rist
 

Bernadette T. Rist
	 	 
	Title:

	 	Authorized Signatory	 	 





The
decision to participate in this investment, any
representations made herein by the participant, and any
actions taken hereunder by the participant has/have been made solely at the direction of the
investment fiduciary who has sole investment discretion with respect to this investment




[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 




CALHOUN &
CO., AS NOMINEE FOR COMERICA BANK & TRUST, NATIONAL ASSOCIATION, TRUSTEE TO THE
TRUST CREATED BY TRUST AGREEMENT DATED OCTOBER 1, 2002.



	 	 	 	 	 
	By: 

Name:

	 	/s/ Lori Perrault
 

Lori Perrault
	 	 
	Title:

	 	Attorney In Fact & Agent	 	 






[Signature
page to First Amendment to Note Purchase Agreement — 2005]




 









 





HARTFORD LIFE INSURANCE COMPANY

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY

HARTFORD LIFE AND ANNUITY INSURANCE COMPANY




	 	 	 	 	 
	By:

	 	Hartford Investment Management Company	 	 
	Their:
	 	Agent and Attorney-in-Fact	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Daniel C. Leimbach
 

Daniel C. Leimbach
	 	 
	Title:

	 	Senior Vice President	 	 
	 
	 	 	 	 
	PHYSICIANS LIFE INSURANCE COMPANY	 	 
	By:

	 	Hartford Investment Management Company	 	 
	Its:

	 	Investment Advisor	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Daniel C. Leimbach
 

Daniel C. Leimbach
	 	 
	Title:

	 	Senior Vice President	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]









 









 










PPM AMERICA, INC., AS ATTORNEY IN FACT,
 ON BEHALF OF JACKSON NATIONAL LIFE INSURANCE
COMPANY




	 	 	 	 	 
	By: 

Name:

	 	/s/ Mark Staub
 

Mark Staub
	 	 
	Title:

	 	Vice President	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]









 









 











BANKERS LIFE AND CASUALTY COMPANY

COLONIAL PENN LIFE INSURANCE COMPANY

CONSECO LIFE INSURANCE COMPANY

CONSECO SENIOR HEALTH INSURANCE COMPANY

CONSECO HEALTH INSURANCE COMPANY

WASHINGTON NATIONAL INSURANCE COMPANY




	 	 	 	 	 
	By:

	 	40|86 Advisors, Inc., acting as Investment Advisor
	 	 






	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Timothy L. Powell
 

Timothy L. Powell
	 	 
	 

	 	Title:
	 	Vice President	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 





MEMBERS LIFE INSURANCE COMPANY

CUMIS INSURANCE SOCIETY, INC.

CUNA MUTUAL INSURANCE SOCIETY

CUNA MUTUAL LIFE INSURANCE COMPANY




	 	 	 	 	 
	By: 

Name:

	 	/s/ David C. Patch
 

David C. Patch
	 	 
	Title:

	 	Director, Private Placements	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 





	 	 	 	 	 
	AMERUS LIFE INSURANCE COMPANY	 	 
	AMERICAN INVESTORS LIFE INSURANCE COMPANY	 	 
	By:

	 	Aviva Capital Management, Inc.,
	 	 
	 

	 	Its authorized attorney-in-fact	 	 






	 	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Roger D. Fors
 

Roger D. Fors
	 	 
	 

	 	Title:
	 	VP - Private Placements	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]





 











 





	 	 	 	 	 	 	 
	ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA
	By:	 	Allianz of America, Inc. as the authorized signatory 
and investment manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gary Brown	 	 
	 	 	 	 	 	 	 
	 	 	Name: Gary Brown	 	 
	 	 	Title: Assistant Treasurer	 	 






[Signature page ro First Amendment to Note Purchase Agreement — 2005]




 









 










	 	 	 	 	 
	COUNTRY LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 
	By:

	 	/s/ Bruce Finks
 

	 	  
	Name: Bruce Finks	 	 
	Title: Vice President — Investments	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








	 	 	 	 	 
	THE OHIO NATIONAL LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 
	By:
	 	/s/ Jed R. Martin
 

	 	  
	Name:

	 	Jed R. Martin	 	 
	Title:

	 	Vice President, Private Placements	 	 
	 
	 	 	 	 
	OHIO NATIONAL LIFE ASSURANCE CORPORATION	 	 
	 
	 	 	 	 
	By:
	 	/s/ Jed R. Martin
 

	 	  
	Name:

	 	Jed R. Martin	 	 
	Title:

	 	Vice President, Private Placements	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








	 	 	 	 	 
	BENEFICIAL LIFE INSURANCE COMPANY	 	 
	 
	 	 	 	 
	By:

	 	/s/ Robert R. Dalley
 

	 	  
	Name: Robert R. Dalley	 	 
	Title: Senior Vice President and CFO	 	 






[Signature page to First Amendment to Note Purchase Agreement — 2005]




 









 








SCHEDULE A

[2005 Noteholders]



Allstate Life Insurance Company



Allstate Life Insurance Company of New York



Security Life of Denver Insurance Company



ING USA Annuity and Life Insurance Company (f/k/a Golden American Life Insurance Company, successor
by merger to USG Annuity & Life Company)



ReliaStar Life Insurance Company (successor by merger to Security Connecticut Life Insurance
Company)



ING Life Insurance and Annuity Company



Metropolitan Life Insurance Company



MetLife Investors USA Insurance Company



MetLife Investors Insurance Company



National Life Insurance Company



Life Insurance Company of the Southwest



The Prudential Life Insurance Company, Ltd



Gibraltar Life Insurance Co., Ltd.



MTL Insurance Company



Physicians Mutual Insurance Company



American Bankers Insurance Company of Florida, Inc.



American Memorial Life Insurance Company



Union Security Insurance Company



Time Insurance Company



John Alden Life Insurance Company



Teachers Insurance and Annuity Association of America



The Paul Revere Life Insurance Company



Unum Life Insurance Company of America



Provident Life and Accident Insurance Company



The Lincoln National Life Insurance Company (successor by merger to Jefferson — Pilot Life
Insurance Company)



Jefferson Pilot Financial Insurance Company



Connecticut General Life Insurance Company



Life Insurance Company of North America



The Northwestern Mutual Life Insurance Company



Monumental Life Insurance Company



Principal Life Insurance Company




 









 








Symetra Life Insurance Company



VantisLife Insurance Company



Mellon Bank, N.A., solely in its capacity as Custodian for Aviva Life-Principal GLOB PRIV
Structured Settlements IMM ANN (as directed by The Principal Global Investors, LLC), and not in its
individual capacity (MAC & CO) — Nominee Name.



Mellon Bank, N.A., solely in its capacity as Custodian for Aviva Life-Principal GLOB PRIV General
Account Universal Life (as directed by The Principal Global Investors, LLC), and not in its
individual capacity (MAC & CO) — Nominee Name.



Mellon
Bank, N.A., solely in its capacity as Custodian for Aviva Life-Principal GLOB PRIV General
Account Deferred TSA (as directed by The Principal Global Investors, LLC), and not in its
individual capacity (MAC & CO) — Nominee Name.



Mellon Bank, N.A., solely in its capacity as Custodian for Aviva Life-Principal GLOB PRIV EG
Convertible Securities (as directed by The Principal Global Investors, LLC), and not in its
individual capacity (MAC & CO) — Nominee Name.



Calhoun & Co., as Nominee for Comerica Bank & Trust, National Association, Trustee to the Trust
Created by Trust Agreement dated October 1,2002.



Hartford Life Insurance Company



Hartford Life and Accident Insurance Company



Hartford Life and Annuity Insurance Company



Physicians Life Insurance Company



PPM America, Inc., as Attorney In Fact, on behalf of Jackson National Life Insurance Company



Bankers Life and Casualty Company



Colonial Penn Life Insurance Company



Conseco Life Insurance Company



Conseco Senior Health Insurance Company



Conseco Health Insurance Company



Washington National Insurance Company



Members Life Insurance Company



Cumis Insurance Society, Inc.



CUNA Mutual Insurance Society



CUNA Mutual Life Insurance Company



AmerUs Life Insurance Company



American Investors Life Insurance Company



Allianz Life Insurance Company of North America



Country Life Insurance Company




The Ohio National Life Insurance Company



Ohio National Life Assurance Corporation



Beneficial Life Insurance Company