EXHIBIT 4.4
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
March 22, 1999, among American Radio Sales, Inc. (the "Guaranteeing
Subsidiary"), a subsidiary of Interep National Radio Sales, Inc. (or its
permitted successor), a New York corporation (the "Company"), the other
Guarantors (as defined in the Indenture referred to herein) and Summit Bank, as
trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
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WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of July 2, 1998 providing for
the issuance of an aggregate principal amount of up to $100.0 million of 10%
Senior Subordinated Notes due 2008 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
and fully guarantee all of the Company's Obligations under the Notes and the
Indenture on the terms and conditions set forth herein (the "Note Guarantee");
and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
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definition shall have the meanings assigned to them in the Indenture.
2. Agreement To Guarantee. The Guaranteeing Subsidiary hereby
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agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Company hereunder
or thereunder, that:
(i) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of and interest on the
Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be fully
and unconditionally obligated to pay on a joint and several
basis the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against
the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(c) The following is hereby waived: 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.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors, or any Custodian,
Trustee, liquidator or other similar official acting in relation
to either the Company or the Guarantors, any amount paid by either
to the Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the
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purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event
of any declaration of acceleration of such obligations as provided
in Article 6 of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, after giving effect to
any maximum amount and any other contingent and fixed liabilities
that are relevant under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of
such other Guarantor under Article 11 of the Indenture shall
result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees that
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the Note Guarantees shall remain in full force and effect notwithstanding or any
failure to endorse on each Note a notation of such Note Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. On Certain Terms.
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(a) The Guaranteeing Subsidiary may not consolidate with or merge with
or into (whether or not such Guarantor is the surviving Person)
another corporation, Person or entity whether or not affiliated
with such Guarantor unless:
(i) subject to Section 11.05 of the Indenture, the Person formed
by or surviving any such consolidation or merger (if other
than such Guarantor) unconditionally assumes all the
obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to
the Trustee, under the Notes, the Indenture, Registration
Rights Agreement and the Note Guarantee on the terms set
forth herein or therein; and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
indenture,
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executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the Note Guarantee endorsed upon the Notes and the
due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Guarantor, such
successor corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon all
of the Notes issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee. All the
Note Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the terms of
the Indenture as though all of such Note Guarantees had been
issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in
the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
5. Releases.
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(a) In the event of a sale or other disposition of all of the assets
of any Guarantor, by way of merger, consolidation or otherwise, or
a sale or other disposition of all to the capital stock of any
Guarantor, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all
of the capital stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under
its Note Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable
provisions of the Indenture, including without limitation Section
4.10 of the Indenture. Upon delivery by the Company to the Trustee
of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company
in accordance with the provisions of the Indenture, including
without limitation Section 4.10 of the Indenture, the Trustee
shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under
its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of
and interest on the
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Notes and for the other obligations of any Guarantor under the
Indenture as provided in Article 11 of the Indenture.
6. No Recourse Against Others. No past, present or future director,
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officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
7. New York Law to Govern. THE INTERNAL LAW OF THE STATE OF NEW
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YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE
NOTE GUARANTEE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
8. Counterparts. The parties may sign any number of copies of this
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Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for
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convenience only and shall not affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in any manner
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whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: March 22, 1999
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American Radio Sales, Inc.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President and Chief Financial
Officer
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INTEREP NATIONAL RADIO SALES, INC.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President and Chief Financial
Officer
McGAVREN GUILD, INC.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President and Chief Financial
Officer
D&R RADIO, INC.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President and Chief Financial
Officer
CBS RADIO SALES, INC.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President and Chief Financial
Officer
ALLIED RADIO PARTNERS, INC.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President and Chief Financial
Officer
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CLEAR CHANNEL RADIO, LLC
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President and Chief Financial
Officer
XXXXXXXXX SPANISH MEDIA L.L.C.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President and Chief Financial
Officer
SUMMIT BANK
as Trustee
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
