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EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
between
NEWCITY COMMUNICATIONS, INC.
and
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION,
As Trustee
Dated as of September 16, 1994
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of September 16, 1994 by
and between NEWCITY COMMUNICATIONS, INC., a Connecticut corporation with
principal offices in Bridgeport, Connecticut (the "Company"), and SHAWMUT BANK
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association with its
principal office in Hartford, Connecticut, as trustee under the Indenture
referred to below (the "Trustee"),
WITNESSETH THAT:
WHEREAS, NewCity Communications, Inc. duly executed and delivered an
Indenture, dated as of November 2, 1993 (the "Indenture"), to Shawmut Bank
Connecticut, National Association, as trustee, for the purpose of securing its
Senior Subordinated Notes (the "Notes"); and
WHEREAS, the Company has obtained the consent of the holders of at
least a majority of the face amount of the outstanding amount of the Notes and
has satisfied all of the requirements of Sections 9.02 and 9.04 of the
Indenture in order to amend Section 4.04 of the Indenture as hereinafter
provided (the "Amendment"); and
WHEREAS, all things prescribed by law and by the terms of the
Indenture necessary to make the Amendment, 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 amendment of the
Indenture, have been done and performed, and the execution and delivery of this
First Supplemental Indenture have been in all respects duly authorized;
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NOW, THEREFORE, THIS FIRST 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
Amendment of the Indenture
Section 1.01. The Company and the Trustee, for and on behalf of the
Noteholders hereby covenant and agree that Section 4.04 of the Indenture is
hereby amended to read as follows:
"Section 4.04 Limitation on Restricted Payments.
"The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, (i) declare or pay any dividend or make any
distribution on account of the Company's or any of its Subsidiaries' Capital
Stock or other Equity Interests (other than dividends or distributions payable
to the Company or any of its Subsidiaries or payable in shares of Capital Stock
or Equity Interests of the Company or its Subsidiaries (other than Redeemable
Stock)), (ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any of its Subsidiaries (other than any such
Equity Interests owned by the Company or any of its Subsidiaries), (iii)
prepay, repay, redeem, defease or otherwise acquire or retire for value prior
to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of the Company than ranks junior or pari passu in
right of payment to the Notes (including the Junior Subordinated Notes and
capitalized interest thereon), (iv) incur, create or assume any guarantee of
Indebtedness of any Affiliate of the Company (other than a wholly owned
Subsidiary), provided, however, that any Subsidiary may guarantee any Senior
Indebtedness of the Company or (v) make Investments, other than Permitted
Investments, in any Person other than a wholly owned Subsidiary (the foregoing
actions set forth in clauses (i) through (v) being referred to as "Restricted
Payments") (a) if at the time of such action, or after giving effect thereto,
an Event of Default or Default shall have occurred and be continuing; or (b) if
after giving effect to such Restricted Payment, the aggregate amount of
Restricted Payments subsequent to the date of this Indenture, would exceed:
(1) the aggregate EBITDA of the Company or, in the event such aggregate EBITDA
shall be a deficit, minus such deficit, accrued subsequent to December 31, 1993
to the end of the fiscal quarter immediately preceding such Restricted Payment,
less (2) 1.6 times Consolidated Interest
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Expense for the same period, plus (3) the aggregate net cash proceeds received
by the Company from the issue or sale of Equity Interests of the Company (other
than Equity Interests issued or sold to a Subsidiary and other than Redeemable
Stock)after December 31, 1993, plus (4) the aggregate net cash proceeds
received by the Company upon the exercise of Equity Interests of the Company
(other than Equity Interests exercised by a Subsidiary or for Redeemable Stock)
after December 31, 1993, plus (5) $1,000,000; or (c) if after giving effect to
such Restricted Payment, the ratio of the Company's total Indebtedness to the
Company's EBITDA (determined on a pro forma basis for the last four fiscal
quarters of the Company for which financial statements are available at the
date of determination) would be such that the Company would not be permitted to
incur $1.00 of additional Indebtedness under Section 4.07 hereof; provided,
however, that the provisions of this Section 4.04 shall not prevent (i) the
payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment complied with the provisions
hereof, (ii) any redemption of the Junior Subordinated Notes or the Series B
Preferred Stock or Series C Preferred Stock with all or part of the net
proceeds of the sale of WYAI(FM), Atlanta, Georgia, (iii) any repurchase of
Capital Stock of the Company from employees of the Company in an aggregate
amount not to exceed $500,000, provided, however, that if such Capital Stock is
resold to another employee, the aggregate net cash proceeds shall be added back
to such $500,000, provided, further, that such sale shall not be included in
clause (b)(3) of this Section 4.04 or (iv) an Investment in any Person which,
immediately after such Investment, will be a wholly owned Subsidiary, provided
that such Person conducts a business which is substantially identical to any
business conducted by the Company and its Subsidiaries on the date of this
Indenture. The foregoing notwithstanding, nothing herein contained shall
prevent the Investment by the Company or any Subsidiary in an amount up to
$500,000 in any Person, other than a wholly owned Subsidiary, whose primary
business is the ownership and operation of radio stations, provided that, so
long as any of the Notes are outstanding, the aggregate amount of such
outstanding Investments shall not exceed $500,000 at any one time nor shall any
such Investment be considered to be a Restricted Payment for any purpose.
"Prior to making any Restricted Payment under this Section 4.04, the
Company shall deliver to the Trustee an Officer's Certificate setting forth the
computation by which the amount available for Restricted Payments was
determined and stating that no Default or Event of Default exists and is
continuing and no Default or Event of Default will result from making the
Restricted Payment. The Trustee shall have no duty or responsibility to
determine the accuracy or correctness of this computation and shall be fully
protected in relying on such Officers' Certificate."
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Section 1.02. 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 1.03. The Company covenants that the recitals of fact and
statements contained in this First Supplemental Indenture are true and that,
upon the execution and delivery of this First 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.
ARTICLE TWO
Additional Provisions
Section 2.01. Except as amended by Article One of this First
Supplemental Indenture, the Indenture remains in full force and effect in
accordance with its terms.
Section 2.02. The cover of this First 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 First Supplemental Indenture or
to control or affect the meaning, construction or effect of the same.
Section 2.03. This First 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, NewCity Communications, 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 Shawmut Bank Connecticut, National Association, 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.
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NewCity Communications, Inc.
(CORPORATE SEAL)
By: /s/ Richard A. Ferguson
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President
Attest:
/s/ James T. Morley
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Secretary
Signed, sealed and delivered by
NewCity Communications, Inc.
in the presence of:
Sheila Daniel
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Lila Grimes
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SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION
(CORPORATE SEAL)
By: /s/ Michael M. Hopkins
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Vice President
Attest:
/s/ Jacqueline Levesque
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Its Corporate Trust Officer
Signed, sealed and delivered by
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION
in the presence of:
/s/ Susan T. Keller
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Susan T. Keller
/s/ Karen R. Felt
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Karen R. Felt
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STATE OF CONNECTICUT)
) ss.: Bridgeport; September 19, 1994
COUNTY OF FAIRFIELD )
Personally appeared Richard A. Ferguson and James T. Morley of
NewCity Communications, 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 NewCity
Communications, 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 NewCity Communications, 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 NewCity Communications, Inc.,
before me.
/s/ Lila Grimes
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Notary Public LILA GRIMES
NOTARY PUBLIC
MY COMMISSION EXPIRES JULY 31, 1998
(NOTARY SEAL)
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STATE OF CONNECTICUT)
) ss.: Hartford; September __, 1994
COUNTY OF HARTFORD )
Personally appeared Michael M. Hopkins and Jacqueline Levesque of
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, signer and sealer,
respectively, of the foregoing instrument, to me personally known, who being by
me duly sworn did say that they are a Vice President and Corporate Trust
Officer, respectively, of Shawmut Bank Connecticut, National Association, 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 Trust Officer, respectively, and the free act and deed
of Shawmut Bank Connecticut, National Association, 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 Shawmut Bank Connecticut,
National Association, before me.
/s/ Michelle K. Blezard
-----------------------------------------------------
Notary Public
Michelle K. Blezard
Notary Public
My Commission Expires August 31, 1998
(NOTARY SEAL)
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