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EXHIBIT 4.4
THIRD SUPPLEMENTAL INDENTURE
between
XXX RADIO, INC.
and
FLEET NATIONAL BANK
As Trustee
Dated as of April 16, 1997
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THIRD SUPPLEMENTAL INDENTURE
This THIRD SUPPLEMENTAL INDENTURE dated as of April 16, 1997 by and
between XXX RADIO, INC., a Delaware corporation with principal offices in
Atlanta, Georgia (the "Company"), and FLEET NATIONAL BANK, a national banking
association with its principal office in Hartford, Connecticut (previously known
as Fleet National Bank of Connecticut, which was previously known as Shawmut
Bank Connecticut, National Association), as trustee under the Indenture referred
to below (the "Trustee"),
WITNESSETH THAT:
WHEREAS, NewCity Communications, Inc., a Connecticut corporation
("NewCity"), duly executed and delivered an Indenture, dated as of November 2,
1993 (the "Initial Indenture"), to the Trustee, as trustee, for the purpose of
securing its Senior Subordinated Notes (the "Notes"), which Indenture was
amended pursuant to a First Supplemental Indenture dated as of September 16,
1994 and further amended pursuant to a Second Supplemental Indenture dated as of
April 1, 1997 (the Initial Indenture, as so amended, the "Indenture");
WHEREAS, on April 1, 1997, pursuant to an agreement and plan of merger
dated as of April 1, 1997, New Xxx Radio II, Inc., a wholly-owned subsidiary of
the Company, was merged with and into NewCity and, as a result of such merger,
NewCity became a wholly-owned subsidiary of the Company;
WHEREAS, on April 2, 1997, pursuant to an agreement and plan of merger
dated as of April 2, 1997, NewCity was merged with and into the Company,
pursuant to which the Company was the surviving corporation (the "Merger");
WHEREAS, on April 3, 1997, Xxx Radio commenced an offer to purchase all
of the issued and outstanding Notes (the "Tender Offer");
WHEREAS, in conjunction with the Tender Offer, Xxx Radio solicited
consents (the "Consent Solicitation") to certain proposed amendments (the
"Amendments") to the Indenture;
WHEREAS, pursuant to the Consent Solicitation, the holders of at least
a majority in principal amount of the Notes outstanding have consented to the
Amendments;
WHEREAS, pursuant to the Indenture, the Company or an agent of the
Company has certified to the Trustee that the Amendments have been authorized by
the Company and that the consent of the majority of the aggregate principal
amount of the Notes has been obtained;
WHEREAS, each of the conditions set forth in Articles V and IX of the
Indenture has been satisfied in connection with the Amendments; and
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WHEREAS, all things prescribed by law and by the terms of the Indenture
necessary to make this Third Supplemental Indenture, when duly executed and
delivered by the Company and the Trustee, a valid and binding instrument,
enforceable in accordance with its terms, and otherwise to effectuate the
Amendments to the Indenture, have been done and performed, and the execution and
delivery of this Third Supplemental Indenture have been in all respects duly
authorized;
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH: THAT the
Indenture is amended as hereinafter provided; otherwise to remain in full force
and effect in accordance with the provisions thereof.
ARTICLE ONE
Amendments of the Indenture
Section 1.01. The following sections of the Indenture are hereby
deleted in their entirety (the "Deleted Provisions"):
a. Section 4.03 (Provision of Reports);
b. Section 4.04 (Limitation on Restricted Payments);
c. Section 4.05 (Limitation on Payment Restriction Affecting
Subsidiaries);
d. Section 4.06 (Limitation on Transactions with Affiliates);
e. Section 4.07 (Limitation on Incurrence of Indebtedness);
f. Section 4.10 (Compliance with Securities Laws upon Purchase of
Notes);
g. Section 4.11 (Limitation on Liens Securing Subordinated
Indebtedness);
h. Section 4.12 (Limitation on Other Senior Subordinated
Indebtedness);
i. Section 4.13 (Limitation of Capital Stock of Subsidiaries);
j. Section 4.14 (Limitation on Sale and Lease-Back Transactions);
k. Section 4.15 (Corporate Existence);
l. Section 4.16 (Payment of Taxes and Other Claims);
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m. Section 4.17 (Notice of Defaults);
n. Section 4.18 (Compliance Certificates);
o. Section 4.20 (Properties);
p. Section 4.21 (Insurance);
q. Section 4.22 (Payments for Consent);
r. Section 5.01 (When Company or Guarantor May Merge, Etc.);
s. Section 5.02 (Successor Entity Substituted);
t. Section 6.01(3) (Event of Default Triggered by Default on
Other Indebtedness); and
u. Section 6.01(6) (Event of Default Upon Certain Final
Judgments).
Section 1.02. All defined terms set forth in the Indenture and used
solely in the Deleted Provisions of the Indenture are hereby deleted in their
entirety from the Indenture when references to such defined terms would be
eliminated as a result of the foregoing amendments (the "Deleted Defined
Terms"). All defined terms set forth in the Indenture and used solely (a) in the
Deleted Defined Terms or (b) in the Deleted Defined Terms and the Deleted
Provisions are hereby deleted in their entirety from the Indenture when
references to such defined terms would be eliminated as a result of the
foregoing amendments.
Section 1.03. The Company hereby expressly ratifies, adopts, renews,
confirms and continues in full force and effect, without limitation, except as
hereby amended, each and every covenant, agreement, condition and provision
contained in the Indenture.
Section 1.04. The Company covenants that the recitals of fact and
statements contained this Third Supplemental Indenture are true and that, upon
the execution and delivery of this Third Supplemental Indenture, the Company is
not in default in any respect under any of the provisions of the Indenture or of
the Notes thereby secured or intended so to be.
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ARTICLE TWO
Additional Provisions
Section 2.01. Except as amended by Article One of this Third
Supplemental Indenture, the Indenture remains in full force and effect in
accordance with its terms.
Section 2.02. The cover of this Third Supplemental Indenture and all
article and description headings are inserted for convenience of reference only
and are not to be taken to be any part of this Third Supplemental Indenture or
to control or affect the meaning, construction or effect of the same.
Section 2.03. This Third Supplemental Indenture shall be simultaneously
executed in several counterparts, and all such counterparts executed and
delivered each as an original shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, Xxx Radio, Inc. has caused its corporate name to be
hereunto affixed and this instrument to be signed and sealed by its President or
its Vice President and its corporate seal to be attested by its Secretary, for
and in its behalf, and caused this instrument to be delivered; and Fleet
National Bank, in token of its acceptance of the trust hereby created, has
caused its corporate name to be hereunto affixed and this instrument to be
signed and sealed by one of its Vice Presidents and its corporate seal to be
attested by one of its Trust Officers, for and in its behalf, and caused this
instrument to be delivered all as of the day and year first above written.
XXX RADIO, INC.
(CORPORATE SEAL)
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President - Tax
----------------------------
Attest:
/s/ Xxxxxx X. Xxxxxx
------------------------------
Secretary
Signed, sealed and delivered by
XXX RADIO, INC.
in the presence of:
/s/ Xxxxxx X. Xxxxx
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/s/ Xxxxxxx X. Xxxxxxxxx
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FLEET NATIONAL BANK
(CORPORATE SEAL)
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Vice President
Attest:
/s/ Xxxxx X. Xxxxx
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Its Corporate Trust Officer
Signed, sealed and delivered by
FLEET NATIONAL BANK
in the presence of:
/s/ Xxxxxxx Xxxx
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/s/ Xxxx X. Xxxxxx
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STATE OF Georgia )
) ss.: April 15, 1997
COUNTY OF Dekalb )
Personally appeared Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx of
Xxx Radio, Inc., signer and sealer, respectively, of the foregoing instrument,
to me personally known, who being by me duly sworn did say that they are the
Vice President and Secretary, respectively, of Xxx Radio, Inc., one of the
corporations described herein, and that they executed said instrument and
severally acknowledged the same to be their free act and deed as such Vice
President and Secretary, respectively, and the free act and deed of Xxx Radio,
Inc. and on oath stated that they were duly authorized to sign and seal,
respectively, said instrument and that the seal affixed thereto is the
corporate seal of Xxx Radio, Inc., before me.
/s/ Xxxxxxxx X. Xxxxx
---------------------
Notary Public
(NOTARY SEAL)
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STATE OF Connecticut )
) ss.: ______________; _____________, 1997
COUNTY OF Hartford )
Personally appeared Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxx of Fleet
National Bank, signer and sealer, respectively, of the foregoing instrument, to
me personally known, who being by me duly sworn did say that they are the Vice
President and Corporate Trust Officer, respectively, of Fleet National Bank,
one of the corporations described herein, and that they executed said
instrument and severally acknowledged the same to be their free act and deed as
such Vice President and Corporate Officer respectively, and the free act and
deed of Fleet National Bank and on oath stated that they were duly authorized
to sign and seal, respectively, said instrument and that the seal affixed
thereto is the corporate seal of Fleet National Bank, before me.
/s/ Xxxxx X. Felt
-----------------------------------
Notary Public
(NOTARY SEAL)
