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EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
between
XXX RADIO, INC.
and
FLEET NATIONAL BANK
As Trustee
Dated as of April 1, 1997
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SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE, dated as of April 1, 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 (the Initial Indenture, as so amended, the "Indenture");
WHEREAS, on April 1, 1997, pursuant to an agreement and plan of merger
dated as of July 1, 1996, 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 1, 1997, pursuant to an agreement and plan of merger
dated as of July 1, 1996, NewCity was merged with and into the Company,
pursuant to which the Company was the surviving corporation (the "Merger");
WHEREAS, Section 5.01 of the Indenture, requires, among other things,
that the Company, as the successor by merger to NewCity, expressly assume all
the obligations of NewCity under the Notes and the Indenture;
WHEREAS, each of the conditions set forth in Section 5.01 of the
Indenture has been satisfied in connection with the Merger and the assumption by
the Company of the obligations of NewCity under the Notes and the Indenture; and
WHEREAS, all things prescribed by law and by the terms of the Indenture
necessary to make this Second 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
amendment of the Indenture, have been done and performed, and the execution and
delivery of this Second Supplemental Indenture have been in all respects duly
authorized;
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NOW, THEREFORE, THIS SECOND 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 hereby expressly assumes all the obligations
of NewCity under the Notes and the Indenture.
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 this Second Supplemental Indenture are true and that, upon
the execution and delivery of this Second 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 Second
Supplemental Indenture, the Indenture remains in full force and effect in
accordance with its terms.
Section 2.02. The cover of this Second 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 Second Supplemental Indenture or
to control or affect the meaning, construction or effect of the same.
Section 2.03. This Second 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/ Xxxxxx X. Xxxx
--------------------------------
President
Attest:
/s/ Xxxxxx X. Xxxxxx
------------------------------
Secretary
Signed, sealed and delivered by
XXX RADIO, INC.
in the presence of:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
/s/ Xxxxxxxx X. Xxxxx
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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/ Xxxx X. Xxxxxxxx
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/s/ Xxxxx X. Xxxxxx
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STATE OF Georgia )
) ss.: _______________, 1997
COUNTY OF Dekalb )
Personally appeared Xxxxxx X. Xxxx 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
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 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/ Xxxxxxx X. Xxxxxxxxx
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Notary Public
(NOTARY SEAL)
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STATE OF Connecticut )
) ss.: Hartford; April 3, 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 Trust 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)
