Exhibit 4.4
EXECUTION COPY
VIACOM INC.,
VIACOM INTERNATIONAL INC.
AND
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
_______________________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 24, 1995
To Indenture dated as of May 15, 1995
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
_______________________________________________
Senior Debt Securities
FIRST SUPPLEMENTAL INDENTURE, dated as of May 24, 1995, among
VIACOM INC., a Delaware corporation (the "Company"), VIACOM INTERNATIONAL
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INC., a Delaware corporation (the "Guarantor"), and THE FIRST NATIONAL BANK
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OF BOSTON, a national banking association (the "Trustee"), as Trustee under
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the Indenture (the "Indenture"), dated as of May 15, 1995, among the Company,
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the Guarantor and the Trustee.
RECITALS OF THE COMPANY
WHEREAS, Section 901(1) of the Indenture permits supplements
thereto without the consent of Holders of Securities to add to the covenants
of the Company for the benefit of all or any series of Securities;
WHEREAS, Section 901(4) of the Indenture permits supplements
thereto without the consent of the Holders of Securities to change any
provisions of the Indenture where there are no Securities Outstanding which
are entitled to the benefit of such provision; and
WHEREAS, the Company wishes to add to the covenants of the Company
for the benefit of the Holders of all Securities and to make certain changes
to other provisions of the Indenture, unless otherwise specified as
contemplated by Section 301 of the Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
SECTION 1. For purposes of this First Supplemental Indenture, all terms
used herein, unless otherwise defined, shall have the meaning assigned to
them in the Indenture.
SECTION 2. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
101 of the Indenture shall be amended by deleting the definitions of
"Company", "Guarantor" and "Principal Property" and replacing such
definitions with the following definitions:
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Guarantor" means the Person named as the "Guarantor" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Guarantor" shall mean such
successor Person.
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"Principal Property" means any parcel of real property
and related fixtures or improvements (other than telecommunications
equipment, including, without limitation, satellite transponders)
owned by the Company or any Restricted Subsidiary and located in
the United States, the aggregate book value of which on the date of
determination exceeds $500 million, other than any such real
property and related fixtures or improvements which, as determined
in good faith by the Board of Directors of the Company, is not of
material importance to the total business conducted by the Company
and its Subsidiaries, taken as a whole.
SECTION 3. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
101 of the Indenture shall be amended by adding the following definitions,
each in alphabetical order:
"Attributable Debt" means, with regard to a Sale and
Leaseback Transaction with respect to any Principal Property, the
lesser of: (a) the fair market value of such property (as
determined in good faith by the Board of Directors of the Company);
or (b) the present value of the total net amount of rent required
to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended and
excluding any unexercised renewal or other extension options
exercisable by the lessee, and excluding amounts on account of
maintenance and repairs, services, taxes and similar charges and
contingent rents), discounted at the rate of interest set forth or
implicit in the terms of such lease (or, if not practicable to
determine such rate, the weighted average interest rate per annum
borne by the Securities of the applicable series then Outstanding)
compounded semi-annually. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net
amount shall be the lesser of the net amount determined assuming
termination upon the first date such lease may be terminated (in
which case the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be
so terminated) or the net amount determined assuming no such
termination.
"Sale and Leaseback Transaction" means any arrangement
with any Person providing for the leasing by the Company or any
Restricted Subsidiary of any Principal Property which has been or
is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person; provided however, that "Sale and
Leaseback Transaction" shall not include such arrangements that
were existing on the date hereof or at the time any Person owning a
Principal Property becomes a Restricted Subsidiary (whether by
acquisition or otherwise, including through merger or
consolidation).
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SECTION 4. For the benefit of the Holders of the Company's 7.75% Senior
Notes due 2005 only, Section 307 shall be amended by deleting the first
paragraph thereof and replacing such paragraph in its entirety with the
following:
(a) Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, interest on any
Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid, in
immediately available funds, to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest
at the office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided however, that each installment
of interest on any Registered Security may at the Company's option
be paid in immediately available funds by transfer to an account
maintained by the payee located in the United States.
SECTION 5. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
501 shall be amended by deleting subparagraph (5) and replacing such
paragraph in its entirety with the following:
(5) the entry by a court having jurisdiction in the
premises of a money judgment in an amount in excess of $100 million
against the Company which has become final and not subject to
appeal, and the continuance of any such judgment unstayed, in
effect and unpaid for a period of 60 days; or
SECTION 6. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Sections
501, 502 and 507 of the Indenture shall be amended by deleting the reference
to "33 1/3%" in each of those sections and replacing such references with
"25%".
SECTION 7. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
504 of the Indenture shall be amended by deleting the last paragraph thereof
and replacing such paragraph in its entirety with the following:
Subject to Article Eight and Section 902, nothing herein
contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder of a Security
or of a coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or coupons or the rights of
any such Holder thereof or to authorize the Trustee to vote in
respect of the claim of any such Holder in any such proceeding.
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SECTION 8. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Article
Eight of the Indenture shall be amended by adding the following covenant:
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company and Guarantor May Consolidate,
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etc. Only on Certain Terms.
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Neither the Company nor the Guarantor may consolidate or
merge with or into another corporation, or sell or convey all or
substantially all of their respective property and assets to
another Person unless: (i) immediately after such consolidation,
merger, sale or conveyance no Event of Default or Default shall
have occurred and be continuing; (ii) the Person (if other than the
Company or the Guarantor, as the case may be) is a corporation
organized under the laws of the United States or any state thereof;
(iii) the Person (if other than the Company or the Guarantor, as
the case may be) through a supplemental indenture assumes payment
of the principal of (premium, if any, on) and interest on, the
Outstanding Securities of the applicabale series and the
performance and observance of all the covenants and conditions of
the Indenture with respect to the Company or the Guarantor, as the
case may be; (iv) the Company or the Guarantor, as the case may be,
shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
sale or conveyance and such supplemental indenture comply with the
applicable provisions of the Indenture and that all conditions
precedent therein provided for relating to such consolidation,
merger, sale or conveyance have been complied with. The Company
and/or the Guarantor may consolidate or merge with or into, or sell
or convey all or substantially all of their respective property and
assets to, each other or any Subsidiary of either of them. For
purposes of this Section, "sell or convey all or substantially all
of their respective property and assets" shall mean property and
assets contributing in the aggregate at least 80% of the Company's
total consolidated revenues as reported in the Company's last
available periodic financial report (quarterly or annual, as the
case may be) filed with the Commission.
Section 802. Successor Person Substituted.
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Upon any consolidation by the Company or the Guarantor
with or merger by the Company or Guarantor into any other
corporation or any sale or conveyance of all or substantially all
of the property and assets of the Company or the Guarantor to any
Person in accordance with Section 801, the successor Person formed
by such consolidation or into which the Company or the Guarantor is
merged or to which such sale or conveyance is made shall succeed
to, and be substituted for, and may exercise every right and power
of, the Company or the Guarantor, as the case may be, under this
Indenture with the same effect as if such successor Person had been
named as the Company or the Guarantor, as the case may be, herein,
and in the event of any such sale or conveyance, the Company or the
Guarantor, as the case may be (which terms shall for this purpose
mean the Person named as the "Company" or the "Guarantor" in the
first paragraph of this Indenture or any successor Person which
shall theretofore become such in the manner described in Section
801) shall be discharged of all obligations and covenants under
this Indenture and the Securities and any coupons appertaining
thereto or the Guarantees, as the case may be, and may be dissolved
or liquidated.
SECTION 9. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
901 of the Indenture shall be amended by adding the following purpose as new
subparagraph (8) thereof and renumbering the existing subparagraph (8) as
subparagraph (9):
(8) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor
of the covenants of the Company or the Guarantor, as the case may
be, herein and in the Securities and the Guarantees in accordance
with Article Eight hereof; or
SECTION 10. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
902(1) of the Indenture shall be amended by deleting the first parenthetical
thereof and replacing such parenthetical in its entirety with the following:
(except as contemplated by Section 801(1) and permitted by
Section 901(8))
SECTION 11. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Article
Ten of the Indenture shall be amended by deleting the clause "Subject to any
supplemental indentures hereto or Officer's Certificates creating any
series," in Section 1004 and replacing such clause in its entirety with
"Subject to Article Eight," and by adding the following covenants:
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Section 1010. Limitations on Liens.
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The Company shall not create, assume or suffer to exist
any Lien on any of its property or assets, without securing the
Securities of any applicable series equally and ratably with (or
prior to) such secured Indebtedness; provided however, that the
foregoing shall apply only to Liens which in the aggregate exceed
15% of the Company's Total Consolidated Assets as of the end of the
Company's most recent accounting period preceding the creation or
assumption of any such Lien (reduced by any Attributable Debt with
respect to any Sale and Leaseback Transaction permitted under
clause (c) of, but not otherwise permitted under, Section 1011
below). This restriction will not apply to Capitalized Leases or
to Indebtedness secured by (a) Liens existing on the date hereof
and Liens on property of, or Indebtedness of, any Person at the
time such Person becomes a Subsidiary (whether by acquisition or
otherwise, including through merger or consolidation), (b) Liens in
favor of the Company or a Subsidiary of the Company, (c) Liens
existing at the time of acquisition of the assets secured thereby
(including acquisition through merger or consolidation) and
purchase money Liens, and (d) any extension, renewal or refunding
of any Lien referred to in the foregoing clauses (a) through (c),
inclusive.
Section 1011. Limitations on Sale and Leaseback
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Transactions.
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The Company shall not, and shall not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any Principal Property unless (a) such
Sale and Leaseback Transaction involves a lease for a term of not
more than three years; (b) such Sale and Leaseback Transaction is
between the Company and a Subsidiary of the Company or between
Subsidiaries of the Company; (c) the Company or such Restricted
Subsidiary would be entitled to incur indebtedness secured by a
Lien on such Principal Property involved in such Sale and Leaseback
Transaction at least equal in amount to the Attributable Debt with
respect to such Sale and Leaseback Transaction pursuant to the
first sentence of the "Limitations on Liens" covenant in Section
1010 above without equally and ratably securing the Securities of
any applicable series pursuant to such covenant; (d) the proceeds
of such Sale and Leaseback Transaction are at least equal to the
fair market value thereof (as determined in good faith by the Board
of Directors of the Company) and the Company applies an amount
equal to the greater of the net proceeds of such sale or the
Attributable Debt with respect to such Sale and Leaseback
Transaction within 180 days of such sale to either (or a
combination) of (i) the retirement (other than the mandatory
retirement, mandatory prepayment or sinking fund payment or by
payment at maturity) of
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debt for borrowed money of the Company or a Subsidiary of the Company
that matures more than 12 months after its creation (other than debt
that is subordinated to the Securities or debt to the Company or a
Subsidiary of the Company) or (ii) the purchase, construction or
development of other comparable property; or (e) such Sale and Leaseback
Transaction is entered into within 180 days after the initial
acquisition by the Company or such Restricted Subsidiary, as the case
may be, of the Principal Property subject to such Sale and Leaseback
Transaction.
SECTION 12. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Sections
1502 and 1503 of the Indenture shall be applicable to all Securities.
Section 1503 of the Indenture shall apply to the covenants set forth in
Sections 1004, 1005, 1006, 1010 and 1011 of the Indenture as they apply to
the Securities of any series.
SECTION 13. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS FIRST
SUPPLEMENTAL INDENTURE.
SECTION 14. This First Supplemental Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed and attested, all as of the day and year first
written above.
VIACOM INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
ATTEST:
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
VIACOM INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
ATTEST:
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Account Manager
ATTEST:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇ Lea
Title: Account Manager
