Exhibit 4.7
THIS SECURITY AND THE GUARANTEE ATTACHED THERETO (THE "SECURITY") AND
THE BSKYB ORDINARY SHARES AND ANY AMERICAN DEPOSITARY SHARES OR RECEIPTS THEREOF
("BSKYB ORDINARY SHARES") AND/OR AMERICAN DEPOSITARY SHARES REPRESENTING
PREFERRED LIMITED VOTING ORDINARY SHARES OF THE NEWS CORPORATION LIMITED ("NEWS
CORPORATION PREFERRED ADSs") ISSUABLE UPON EXCHANGE OR REDEMPTION OR REPURCHASE
OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NONE OF THIS
SECURITY, BSKYB ORDINARY SHARES AND/OR THE NEWS CORPORATION PREFERRED ADSs (THE
"SECURITIES") ISSUABLE UPON EXCHANGE OR REDEMPTION OR REPURCHASE OF THIS
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THE SECURITIES, BY ITS ACCEPTANCE HEREOF, AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER ANY SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH NEWS AMERICA INCORPORATED
(THE "COMPANY"), THE NEWS CORPORATION LIMITED ("NEWS CORPORATION") OR ANY
AFFILIATE OF THE COMPANY OR NEWS CORPORATION WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO NEWS CORPORATION OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR U.S. FEDERAL
INCOME TAX PURPOSES. WITH RESPECT TO THIS SECURITY WITH A PRINCIPAL AMOUNT OF
US$1,000 (A) THE ISSUE PRICE IS US$1,000 AND (B) THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS US$1,357.23. THE ISSUE DATE OF THIS SECURITY IS MARCH 21, 2003. THE
YIELD TO MATURITY OF THIS SECURITY,
COMPOUNDED SEMI-ANNUALLY, IS 4.85%. THE SCHEDULE OF PROJECTED PAYMENTS OF THIS
SECURITY WITH A PRINCIPAL AMOUNT OF US$1,000 CONSISTS OF (A) A PAYMENT OF
INTEREST EQUAL TO US$3.625 ON SEPTEMBER 15, 2003, (B) PAYMENTS OF INTEREST EQUAL
TO US$3.75 ON EACH SUBSEQUENT SEMI-ANNUAL INTEREST PAYMENT DATE (INCLUDING THE
MATURITY DATE) AND (C) A PAYMENT OF A PROJECTED AMOUNT AT THE MATURITY DATE OF
THIS SECURITY (EXCLUDING THE STATED SEMI-ANNUAL INTEREST ON THIS SECURITY
PAYABLE ON SUCH DATE) EQUAL TO US$2,357.23.
NEWS AMERICA INCORPORATED
0.75% Senior Exchangeable Debentures Due March 15, 2023
No.
Issue Date: As of March 21, 2003
Original Principal Amount:
NEWS AMERICA INCORPORATED, a Delaware corporation (the "Company"),
promises to pay to The Bank of New York or registered assigns, upon presentation
and surrender of this Security, the Original Principal Amount of
___________________ ($________) in United States Dollars on March 15, 2023 and
to pay interest on said principal amount from March 21, 2003, or from the most
recent interest payment date (each, an "Interest Payment Date") to which
interest has been paid or duly provided for, semi-annually in arrears on March
15 and September 15 of each year, commencing September 15, 2003, at the rate of
0.75% per annum until the principal hereof shall have become due and payable.
The Indenture also provides for the payment of Additional Distributions. The
original principal amount of this security shall be reduced by the amount of any
Extraordinary Distribution and in certain other circumstances, as provided in
the Indenture and such amount payable at maturity is referred to as the Adjusted
Principal Amount.
This Security is unconditionally guaranteed by THE NEWS CORPORATION
LIMITED (A.C.N. 007 910 330), a corporation organized under the laws of
Australia ("News Corporation"), and certain of its subsidiaries (collectively,
the "Guarantors"), as set forth in the first paragraph of the Indenture and in
the Guarantees endorsed hereon. This Security is exchangeable as specified on
the other side of this Security. All capitalized terms used herein without
definition shall have the respective meanings assigned thereto in the Indenture
referred to on the other side of this Security. Obligations under and in respect
of this Security, the Guarantees and the Indenture constitute senior
indebtedness of the Company and the Guarantors and will rank pari passu with all
present and future senior indebtedness of the Company and the Guarantor, as
provided in the Indenture.
Additional provisions of this Security are set forth on the attached
Terms of Securities.
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NEWS AMERICA INCORPORATED
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Trustee's Certificate of
Authentication:
This is one of the Securities
described in the within-
mentioned Indenture.
The Bank of New York, as Trustee
By:
----------------------------
Authorized Signatory
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NEWS AMERICA INCORPORATED
0.75% Senior Exchangeable Debentures Due March 15, 2023
Unconditionally Guaranteed
by The News Corporation Limited
Terms of Securities
I. Indenture
The Company issued the Securities under an Indenture, dated as
of March 21, 2003 (the "Indenture"), among the Company, the Guarantors and The
Bank of New York (as "Trustee"). Upon the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended (the "TIA"), the terms of the
Securities will include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. In the case of any inconsistency between the
provisions set forth herein and the provisions of the Indenture, the Indenture
shall govern. Capitalized terms used herein and not otherwise defined herein
have the meanings ascribed thereto in the Indenture. Upon qualification of the
Indenture under the TIA, the Securities and the Guarantees will be subject to
all such terms, and Holders are referred to the Indenture and the TIA for a
statement of those terms.
The Securities are general unsecured senior obligations of the
Company which are fully and unconditionally guaranteed by the Guarantors. The
Indenture generally does not limit other indebtedness of the Company or the
Guarantors, secured or unsecured, including senior indebtedness.
II. Interest
Interest shall be payable as provided in the Indenture.
The Company shall pay as additional interest on the Securities
such amounts as shall be required so that the net amounts received and retained
by the Trust after paying any taxes, duties, assessments or other governmental
charges of whatever nature (other than withholding taxes) imposed on the Trust
by the United States or any other taxing authority ("Additional Interest") will
be not less than the amounts the Trust would have received had no such taxes,
duties, assessment or governmental charges been imposed.
III. Method of Payment
Holders must surrender Securities to a Paying Agent or
Exchange Agent, as the case may be, in order to collect payments in respect of
the Securities, other than interest payments. The Company will pay cash amounts
in money, or by check, payable in United States dollars.
IV. Paying Agents, Exchange Agents, Transfer Agents and Security Registrar
Initially, The Bank of New York (together with any successors,
the "Trustee") will act as a Paying Agent, Exchange Agent, Transfer Agent and
Security Registrar. The
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Company and the Guarantors may appoint and change any Paying Agent, Exchange
Agent, Transfer Agent or any Security Registrar upon notice to the Trustee and
the Holders; provided that the Company and the Guarantors will maintain at all
times a Paying Agent, Transfer Agent, Exchange Agent and Security Registrar in
Borough of Manhattan, The City of New York.
V. Redemption at the Option of the Company
No sinking fund is provided for the Securities. The Securities
are redeemable by the Company as a whole, or from time to time in part, at any
time on or after March 20, 2010 at the option of the Company as provided in the
Indenture.
VI. Purchase by the Company at the Option of the Holder
Subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase, at the option of the Holder, all or
any portion of the Securities held by such Holder in integral multiples of
$1,000 Original Principal Amount on March 15, 2010, March 15, 2013 and March 15,
2018, at a redemption price equal to the Adjusted Principal Amount, plus accrued
and unpaid interest to the redemption date plus any Final Period Distribution,
all as provided in and subject to the procedures set forth in the Indenture.
VII. Exchange Rights
Subject to the terms and provisions of the Indenture, a Holder
of a Security may exchange such Security for the Exchange Market Value of the
Reference Shares. The Reference Shares initially consist of 77.09 ordinary
shares of British Sky Broadcasting Group plc per $1,000 Original Principal
Amount of the Securities. The terms and procedures relating to exchange are set
forth in Article XI of the Indenture.
VIII. Denominations; Transfers; Exchange
All certificated Securities are issuable in denominations of
US$1,000 of Original Principal Amount and integral multiples thereof.
At the option of the Holder, Securities shall be exchanged for
other Securities of any authorized denomination or denominations and of the same
aggregate Original Principal Amount, upon surrender of the Securities to be
exchanged at any office or agency of the Company appointed for such purpose.
The Security Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Security
Registrar need not register the transfer of or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities in respect of
which a Purchase Notice or Change in Control Purchase Notice has been given and
not withdrawn (except, in the case of a Security to be purchased in part, the
portion of the Security not to be purchased) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
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IX. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
X. Unclaimed Money or Securities
The Trustee, and each Paying Agent or Exchange Agent shall
return to the Company and/or the Guarantors, as applicable, any cash and
securities that remain unclaimed for two years; provided that, to the extent
that the aggregate amount of cash and securities so deposited by or on behalf of
the Company and/or the Guarantors, as applicable, exceeds the aggregate
Redemption Price, Purchase Price or Change in Control Purchase Price, as the
case may be, of the Securities or portions thereof to be purchased, then
promptly after the Business Day following the Purchase Date or Change in Control
Purchase Date, as the case may be, the Trustee shall return any excess to the
Company and/or the Guarantors, as applicable.
XI. Amendment; Waiver
Subject to certain exceptions and as more fully set forth in
the Indenture, (a) the Indenture or the Securities may be amended with the
written consent of the Holders of not less than a majority in aggregate Original
Principal Amount of the Securities at the time outstanding and (b) certain
Events of Default, and certain covenants of the Company and the Guarantors, may
be waived and, under certain conditions, the Guarantees may be eliminated, with
the written consent of the Holders of a majority in aggregate Original Principal
Amount of the Securities at the time outstanding. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company, and
News Corporation on behalf of the Guarantors, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may amend the
Indenture to: (i) evidence the succession of another Person to the Company or
any of the Guarantors and the assumption by any such successor of the covenants
of the Company or such Guarantor herein and in the Securities; (ii) to add to
the covenants of the Company or any of the Guarantors for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company or
any of the Guarantors; (iii) cure any ambiguity, defect or inconsistency; (iv)
to comply with the requirements of the Commission in order to effect or maintain
the qualification of this Indenture under the Trust Indenture Act; or (v) to
make provision for transfer procedures, certification, book-entry provisions,
the form of restricted securities legends, if any, to be placed on Securities,
and certain other matters required in connection with the issuance of Securities
to holders of BUCS.
XII. Defaults and Remedies
Securities shall have the Events of Default as set forth in
Section 5.1 of the Indenture. Subject to certain limitations in the Indenture,
if an Event of Default occurs and is continuing, the Trustee by notice to the
Company or the holders of at least 25% in aggregate Original Principal Amount of
the then outstanding Securities by notice to the Company and the Trustee may
declare all the Securities to be due and payable immediately in an amount set
forth in the Indenture.
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The holders of a majority in Original Principal Amount of the
Securities then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
holders of a majority in Original Principal Amount of the then outstanding
Securities issued under the Indenture may direct the Trustee in its exercise of
any trust or power. Holders of BUCS may enforce the Securities through Direct
Action as provided in the Indenture. The Company must furnish annually
compliance certificates to the Trustee. The above description of Events of
Default and remedies is qualified by reference to, and subject in its entirety
by, the more complete description thereof contained in the Indenture.
XIII. Withholding
All payments made by a Guarantor, other than a Guarantor whose
residence is the United States, with respect to the Guarantees will be made
without withholding or deduction for, or on account of, any present or future
taxes, duties, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of Australia or any political subdivision thereof or any
authority therein or thereof, or the country of residence of any Guarantor other
than a Guarantor whose residence is the United States or any political
subdivision thereof having power to tax, unless the withholding or deduction of
such taxes, duties, assessments or governmental charges is then required by law.
In the event that Australia or any political subdivision thereof or any
authority therein, or the country of residence of any Guarantor other than a
Guarantor whose residence is the United States or any political subdivision
thereof, imposes any such withholding tax deductions on (i) any payments made by
a Guarantor with respect to the Guarantees or (ii) any net proceeds on the sale
of or exchange with News Corporation or any other Guarantor of the Securities,
such Guarantor will pay such additional amounts (the "Additional Amounts") set
forth in the Indenture.
XIV. Trustee Dealings with the Company and the Guarantors
Subject to certain limitations imposed by the TIA, the
Trustee, any Paying Agent, any Transfer Agent, any Exchange Agent, any
Securities Registrar or any other agent of the Company and the Guarantors, in
its individual or any other capacity, shall have the right to become the owner
or pledgee of Securities and may otherwise deal with and collect obligations
owed to it by the Company, the Guarantors and may otherwise deal with the
Company, the Guarantors or any of their respective Affiliates with the same
rights it would have if it were not Trustee, any Paying Agent, any Transfer
Agent, any Exchange Agent, any Securities Registrar or any other of the Company
and the Guarantors.
XV. Authentication
This Security and the Guarantee endorsed hereon shall not be
valid until an authorized officer of the Trustee manually signs the Trustee's
Certificate of Authentication on the other side of this Security.
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XVI. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the
entireties), JT TEN (joint tenants with right of survivorship and not as tenants
in common), CUST (custodian) and U/G/M/A (Uniform Gift to Minors Act).
XVII. GOVERNING LAW
THIS SECURITY AND THE GUARANTEE ENDORSED HEREON 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 THAT WOULD APPLY THE LAWS OF A
DIFFERENT JURISDICTION.
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GUARANTEE
Each of the undersigned corporations (collectively, the
"Guarantors"), jointly and severally, hereby fully, unconditionally and
irrevocably guarantees to the Holder of the Security upon which this Guarantee
is endorsed, and to the Trustee on behalf of each such Holder, the due and
punctual payment of the Adjusted Principal Amount, interest, Additional
Distributions and Additional Amounts, Redemption Price, Change in Control
Purchase Price, the Purchase Price and other interest, if any, in respect of
such Security, when and as the same shall become due and payable, according to
the terms of such Security and of the Indenture. In the event of the failure of
the Company or any successor thereto to punctually pay any such amount, the
Guarantors hereby agree to cause such payment to be made punctually when and as
the same shall become due and payable, as if such payment were made by the
Company.
In addition, the Guarantors hereby fully, unconditionally and
irrevocably guarantee to each Holder, and to the Trustee for itself and on
behalf of each such Holder:
(1) the performance of:
(a) each of the covenants and agreements of the Company in the
Securities and the Indenture not described in the preceding
paragraph or in clause (b) below, in each case, in accordance
with the terms thereof and hereof; and
(b) to the extent each is permitted by applicable law to do so, the
delivery of BSkyB Ordinary Shares or News Corporation Preferred
ADSs upon any payment of the Redemption Price or Purchase Price
or any exchange of Securities, according to the terms thereof and
of the Indenture; and
(2) if, and to the extent, but only to the extent, that the foregoing
guarantee of the obligations described in clause (1)(b) above is not
enforceable in accordance with its terms under applicable law which
restricts or prohibits the Guarantors from guaranteeing the delivery of
BSkyB Ordinary Shares or News Corporation Preferred ADSs upon any payment
of the Redemption Price or Purchase Price or any exchange of the Security,
according to the terms thereof and of the Indenture, or the Guarantors are
otherwise not permitted to guarantee the performance of such obligations
or to honor such guarantee, the Company shall pay to the Holders an amount
in United States Dollars equal to the value of the BSkyB Ordinary Shares
or News Corporation Preferred ADSs such Holders would otherwise be
entitled to receive hereunder and under the Securities in accordance with
the terms thereof, and the Guarantors hereby guarantee such payment in
accordance with the provisions of the Indenture.
In case of the failure of the Company or any successor thereto
punctually to comply with any covenant or agreement described in clause (1)
above, to the extent each is permitted by applicable law to do so, the
Guarantors hereby agree to cause such covenant or agreement to be performed as
and when it shall be provided to be performed in the Security or in the
Indenture, as if such performance were performed by the Company.
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The Guarantors hereby agree that their obligations hereunder
shall be unconditional and absolute, irrespective of the identity of the
Company, the validity, regularity or enforceability of such Security or the
Indenture, the absence of any action to enforce the same, the granting of any
waiver or consent by the Holder of such Security with respect to any provisions
thereof, the recovery of any judgment against the Company or any action to
enforce the same, or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. The Guarantors hereby
waive diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in such Security and in this Guarantee.
If the Trustee or such Holder is required by any court or
otherwise to return to the Company or the Guarantors, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or the Guarantors, any amount paid to the Trustee or
such Holder in respect of such Security, this Guarantee, to the extent of such
amount so returned, shall be reinstated in full force and effect. The Guarantors
further agree, to the fullest extent that they may lawfully do so, that, as
between the Guarantors. on the one hand, and such Holder and the Trustee, on the
other hand, the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Five of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition extant under any
applicable bankruptcy law preventing such acceleration in respect of the
obligations guaranteed thereby.
The Guarantors hereby irrevocably waive any claim or other
rights which they may now or hereafter acquire against performance or
enforcement of the Guarantors' obligations under this Guarantee, including
without limitation, any right of subrogation, reimbursement, exoneration,
contribution, indemnification, any right to participate in any claim or remedy
of such Holder and the Trustee on behalf of such Holder against the Company or
any collateral which such Holder, or the Trustee on behalf of such Holder,
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to the
Guarantors in violation of the preceding sentence at any time prior to the
payment in full of all obligations and all other amounts payable under this
Guarantee, such amount shall be deemed to have been paid to the Guarantors for
the benefit of, and held in trust for the benefit of, such Holder and the
Trustee on behalf of such Holder, and shall forthwith be paid to the Trustee for
the benefit of such Holder to be credited and applied upon such guaranteed
obligations, whether matured or unmatured, in accordance with the terms of the
Indenture.
All capitalized terms used without definition in this
Guarantee shall have the respective meanings assigned thereto in the Indenture.
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This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
THE NEWS CORPORATION LIMITED
(A.C.N. 007 910 330),
as Guarantor
FEG HOLDINGS, INC.,
as Guarantor
FOX ENTERTAINMENT GROUP, INC.,
as Guarantor
XXXXXX XXXXXXX PUBLISHERS INC.,
as Guarantor
HARPERCOLLINS (UK),
as Guarantor
NEWS AMERICA MARKETING FSI, INC.,
as Guarantor
NEWS INTERNATIONAL plc,
as Guarantor
NEWS LIMITED,
as Guarantor
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NEWS PUBLISHING AUSTRALIA LIMITED,
as Guarantor
NEWS SECURITIES B.V.,
as Guarantor
NEWSCORP INVESTMENTS,
as Guarantor
By:
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Name:
Title:
Attorney In Fact, Agent and Authorized
Signatory for the Guarantors
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