NEWS AMERICA INCORPORATED, Company, NEWS CORPORATION, NEWS HOLDINGS LIMITED, NEWS AUSTRALIA HOLDINGS PTY LIMITED, FEG HOLDINGS, INC., FOX ENTERTAINMENT GROUP, INC., NEWS AMERICA MARKETING FSI, LLC, NEWS PUBLISHING AUSTRALIA LIMITED, Guarantors and THE...
Exhibit 4.44
NEWS AMERICA INCORPORATED,
Company,
NEWS CORPORATION,
NEWS HOLDINGS LIMITED,
NEWS AUSTRALIA HOLDINGS PTY LIMITED,
FEG HOLDINGS, INC.,
FOX ENTERTAINMENT GROUP, INC.,
NEWS AMERICA MARKETING FSI, LLC,
NEWS PUBLISHING AUSTRALIA LIMITED,
Guarantors
and
THE BANK OF NEW YORK,
Trustee
Dated as of March 14, 2005
Amending and Supplementing the Indenture
Dated as of November 12, 1996
5% Subordinated Discount Debentures due 2016
FIFTH SUPPLEMENTAL INDENTURE, dated as of March 14, 2005, among News America Incorporated, a Delaware corporation (the “Company”), with its principal office located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, News Corporation, a Delaware corporation (“News Corporation”), News Holdings Limited (formerly known as The News Corporation Limited), an Australia corporation (ABN 40 007 910 330) (“News Holdings”), News Australia Holdings Pty Limited (formerly known as Carlholt Pty Ltd), an Australia corporation (ABN 32 105 197 028) (“NAHPL”), FEG Holdings, Inc., Fox Entertainment Group, Inc., News America Marketing FSI, LLC, News Publishing Australia Limited, and The Bank of New York, a New York banking corporation (the “Trustee”), amending and supplementing the Amended and Restated Indenture, dated as of November 12, 1996 (the “Original Indenture”), among the Company, the guarantors named therein and the Trustee, which provided for the issuance of the Company’s 5% Subordinated Discount Debentures due November 12, 2016 (the “Securities”). (The Original Indenture, as supplemented by the First Supplemental Indenture, dated as of March 2, 2000, the Second Supplemental Indenture, dated as of February 14, 2001, the Third Supplemental Indenture, dated as of June 27, 2003, the Fourth Supplemental Indenture, dated as of November 12, 2004, and this Fifth Supplemental Indenture, dated as of March 14, 2005, and as it may hereafter be supplemented is referred to herein as the or this “Indenture”.) Capitalized terms used herein and not otherwise defined herein have the meanings ascribed thereto in the Indenture.
RECITALS:
WHEREAS, on November 12, 2004, News Holdings effected a corporate reorganization in accordance with the Corporations Act of Australia pursuant to which the publicly held shares of News Holdings were exchanged for shares of News Corporation (the “Share Exchange”); and
WHEREAS, in connection with the Share Exchange, NAHPL became a wholly owned Subsidiary of News Corporation, and News Holdings became a Subsidiary of NAHPL and News Corporation; and
WHEREAS, on March 14, 2005, subject to the receipt of certain consents, all or substantially all of the assets of News Holdings will be transferred to NAHPL, which, on the date of such transfer, will continue to be a wholly owned Subsidiary of News Corporation (the “Asset Transfer”); and
WHEREAS, the definition of “News Holdings” in Section 101 of the Indenture provides for the replacement of News Holdings by a successor Guarantor pursuant to the Indenture; and
WHEREAS, Section 901 of the Indenture provides that, without the consent of Holders, the parties to the Indenture may enter into an indenture supplemental to the Indenture to cure any ambiguity, to correct or supplement any provision of the Indenture which may be inconsistent with any other provision of the Indenture, or to make any other provisions with respect to matters or questions arising under the Indenture which shall not be inconsistent with the provisions of the Indenture, provided that such action shall not adversely affect the interests
of the Holders of Securities or, so long as any of the Preferred Securities shall remain outstanding, the holders of the Preferred Securities;
WHEREAS, the Original Indenture is subject to the provisions of the United States Trust Indenture Act of 1939, as amended (the “TIA”), that are required to be part of the Original Indenture and the Indenture shall, to the extent applicable, be governed by such provisions; and
WHEREAS, the Company and each of the Guarantors have duly authorized the execution and delivery of this Fifth Supplemental Indenture and have done all things necessary to make this Fifth Supplemental Indenture a valid agreement in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
ORIGINAL INDENTURE
SECTION 101. Effect of Original Indenture.
Except as specifically provided in this Fifth Supplemental Indenture, the Original Indenture (as amended and supplemented prior to the date hereof) shall remain in full force and effect.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
SECTION 201. Amendments to the Indenture:
Effective upon the Asset Transfer, in accordance with Section 901 of the Indenture:
(a) Without further action on the part of News Corporation, News Holdings or any other Person, (i) News Corporation shall assume all the obligations of News Holdings under the Indenture, the Securities and the Guarantees, (ii) News Corporation shall succeed to, and be substituted for, and may exercise every right and power of News Holdings under the Indenture, the Securities and the Guarantees with the same effect as if News Corporation had been named as “News Corporation” in the Indenture, the Securities and the Guarantees, and (iii) News Holdings shall be discharged and released from all obligations and covenants under the Indenture, the Securities and the Guarantees.
(b) Section 101 of the Indenture shall be amended as follows:
| (i) | To delete the definition of News Holdings in its entirety. |
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| (ii) | To amend the definition of “Change of Control” by deleting the words “Ordinary Shares” and replacing them with the words “common stock.” |
(c) Clause (i) of Section 1205 of the Indenture shall be amended in its entirety to read as follows:
| (i) | the sale or disposition (by merger or otherwise) of a Subsidiary Guarantor to an entity that is not a Subsidiary of News Corporation or |
(d) All references (in any form or terms) in the Indenture, the Securities and the Guarantees to News Corporation or News Holdings under its former name or any variation thereof, including News Corporation, shall be deemed to be references to News Corporation (and not News Holdings); provided that any such references in Section 1007 of the Indenture shall be deemed to refer to News Holdings.
(e) News America Marketing FSI, Inc., a guarantor, has been converted from a Delaware corporation to a Delaware limited liability company named News America Marketing FSI, LLC.
ARTICLE THREE
MISCELLANEOUS
SECTION 301. Effect of Headings.
The Article and Section headings herein are for convenience of reference only and shall not effect the construction hereof.
SECTION 302. Governing Law.
Subject to the following sentence, this Fifth Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws. This Fifth Supplemental Indenture is subject to the provisions of the TIA that are required to be part of the Original Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 303. Counterparts.
This Fifth Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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SECTION 304. Trustee.
The Trustee makes no representation as to the validity or sufficiency of this Fifth Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company and the Guarantors and not of the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed as of the day and year first above written.
| News America Incorporated | ||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |
| Name: Title: |
Xxxxxxxx X. Xxxxxx Senior Executive Vice President and General Counsel | |
| News Holdings Limited, as Guarantor (until the Asset Transfer)
News Corporation (a Delaware corporation), as Guarantor
News Australia Holdings Pty Limited, as Guarantor
FEG Holdings, Inc., as Guarantor
Fox Entertainment Group, Inc., as Guarantor
News America Marketing FSI, LLC, as Guarantor
News Publishing Australia Limited, as Guarantor | ||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |
| Name: Title: |
Xxxxxxxx X. Xxxxxx Senior Executive Vice President and General Counsel, News America Incorporated, as Attorney for the Guarantors | |
| The Bank of New York, as Trustee | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Title: |
Xxxxx X. Xxxxxx Assistant Vice President | |
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| STATE OF NEW YORK |
) | |||||||
| ) ss.: | ||||||||
| COUNTY OF NEW YORK |
) | |||||||
On this 14 day of March, 2005, before me personally appeared Xxxxxxxx X. Xxxxxx, who acknowledged himself to be the Senior Executive Vice President and General Counsel of News America Incorporated, and that he, as such Senior Executive Vice President and General Counsel, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing in the name of such corporation as such Senior Executive Vice President and General Counsel.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
| By: | /s/ Xxxxxxxxx X. XxXxxxxxx | |
| Name: Title: |
Xxxxxxxxx X. XxXxxxxxx Notary Public, State of New York No. 02MC4974028 Qualified in Kings County Commission Expires Nov. 5, 2006 | |
[Notarial Seal]
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