exv4w10








Exhibit 4.10



EXECUTION COPY




DISCOVERY
COMMUNICATIONS, INC.




 






FIRST
AMENDMENT




 






Dated
As Of April 11, 2007




to




AMENDED AND RESTATED

NOTE PURCHASE AGREEMENTS




Dated As Of September 30, 2002

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 September 30, 2002 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 September 30, 2002 and amended and restated as
of November 4, 2005 (the “Note Agreements”). The Company has heretofore issued the $55,000,000 of
7.45% Series A Senior Unsecured Notes due September 30, 2009 and the $235,000,000 of 8.13% Series B
Senior Unsecured Notes due September 30, 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 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 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



2









 




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.”



     1.7 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.”



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



     ““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.”



     ““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.”



     ““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).”



3









 





     ““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.”



     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]




4









 






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	 	 






[Signature page to First Amendment]





 









 








Acknowledged and Agreed to:




METROPOLITAN LIFE INSURANCE COMPANY




	 	 	 	 	 
	By:

	 	/s/ Erik V. Savi
	 	 
	 

	 	 	 	 
	Name:

	 	Erik V. Savi	 	 
	Title:

	 	Director	 	 






METLIFE INSURANCE COMPANY OF CONNECTICUT




METLIFE LIFE AND ANNUITY COMPANY OF CONNECTICUT




By: Metropolitan Life Insurance Company, its investment manager




	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Erik V. Savi
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Erik V. Savi	 	 
	 

	 	Title:
	 	Director	 	 






[Signature Page to First Amendment to Amended and Restated Note Purchase Agreements — 2002]




 









 








NEW YORK LIFE INSURANCE COMPANY




	 	 	 	 	 
	By:

	 	/s/ R. Edward Ferguson
	 	 
	 

	 	 	 	 
	Name:

	 	R. Edward Ferguson	 	 
	Title:

	 	Vice President	 	 






NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION



By:      New York Life Investment Management LLC, its Investment Manager




	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Edward Ferguson
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	R. Edward Ferguson	 	 
	 

	 	Title:
	 	Managing Director	 	 






[Signature Page to First Amendment to Amended and Restated Note Purchase Agreements — 2002]




 









 








THE PRUDENTIAL INSURANCE COMPANY OF AMERICA




	 	 	 	 	 
	By:

	 	/s/ Yvonne Guajardo
	 	 
	 

	 	 	 	 
	Name:

	 	Yvonne Guajardo	 	 
	Title:

	 	Vice President	 	 






ING USA ANNUITY AND LIFE INSURANCE COMPANY (as successor by merger to Equitable Life Insurance Company of Iowa)



By:       Prudential Private Placement Investors, L.P., as Investment Advisor



             By:      Prudential Private Placement Investors, Inc., General Partner




	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Yvonne Guajardo
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	Title:
	 	Vice President	 	 






GATEWAY RECOVERY TRUST



By:       Prudential Investment Management, Inc., as Investment Manager




	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Yvonne Guajardo
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Yvonne Guajardo	 	 
	 

	 	Title:
	 	Vice President	 	 






[Signature Page to First Amendment to Amended and Restated Note Purchase Agreements — 2002]




 









 





TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA




	 	 	 	 	 
	By:

	 	/s/ Lisa M. Ferraro
	 	 
	 

	 	 	 	 
	Name:

	 	Lisa M. Ferraro	 	 
	Title:

	 	Director	 	 






[Signature Page to First Amendment to Amended and Restated Note Purchase Agreements — 2002]




 









 








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 Amended and Restated Note Purchase Agreements — 2002]




 









 








THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.




	 	 	 	 	 
	By:

	 	/s/ Thomas M. Donohue
	 	 
	 

	 	 	 	 
	Name:

	 	Thomas M. Donohue	 	 
	Title:

	 	Managing Director	 	 






THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA




	 	 	 	 	 
	By:

	 	/s/ Thomas M. Donohue
	 	 
	 

	 	 	 	 
	Name:

	 	Thomas M. Donohue	 	 
	Title:

	 	Managing Director	 	 






[Signature Page to First Amendment to Amended and Restated Note Purchase Agreements — 2002]




 









 








TRANSAMERICA LIFE INSURANCE COMPANY




	 	 	 	 	 
	By:

	 	/s/ Bill Henricksen
	 	 
	 

	 	 	 	 
	Name:

	 	Bill Henricksen	 	 
	Title:

	 	Vice President	 	 






MONUMENTAL LIFE INSURANCE COMPANY




	 	 	 	 	 
	By:

	 	/s/ Bill Henricksen
	 	 
	 

	 	 	 	 
	Name:

	 	Bill Henricksen	 	 
	Title:

	 	Vice President	 	 






TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY




	 	 	 	 	 
	By:

	 	/s/ Bill Henricksen
	 	 
	 

	 	 	 	 
	Name:

	 	Bill Henricksen	 	 
	Title:

	 	Vice President	 	 






[Signature Page to First Amendment to Amended and Restated Note Purchase Agreements — 2002]




 









 








SCHEDULE A

[2002 Noteholders]



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




ING Life Insurance and Annuity Company




Metropolitan Life Insurance Company




MetLife Insurance Company of Connecticut (successor by merger to The Travelers Insurance Company)



MetLife Life and Annuity Company of Connecticut (successor by merger to The Travelers Life and
Annuity Company)




New York Life Insurance Company




New York Life Insurance and Annuity Corporation




The Prudential Insurance Company of America



ING USA Annuity and Life Insurance Company (successor by merger to Equitable Life Insurance Company
of Iowa)




Gateway Recovery Trust




Teachers Insurance and Annuity Association of America




The Northwestern Mutual Life Insurance Company




The Guardian Insurance & Annuity Company, Inc.




The Guardian Life Insurance Company of America




Fort Dearborn Life Insurance Company




Transamerica Life Insurance Company



Monumental Life Insurance Company




Transamerica Occidental Life Insurance Company