Indenture [Supplement No. 1] - Talk America Holdings Inc. and U.S. Bank Trust NA
TALK AMERICA HOLDINGS, INC.
As Issuer
5% CONVERTIBLE SUBORDINATED NOTES DUE 2004
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FIRST SUPPLEMENTAL INDENTURE
Dated as of April 2, 2002
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U.S. BANK TRUST NATIONAL ASSOCIATION,
As Trustee
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FIRST SUPPLEMENTAL INDENTURE dated as of April 2, 2002 (the "First
Supplemental Indenture") among Talk America Holdings, Inc. (formerly Tel-Save
Holdings, Inc.), a Delaware corporation (the "Company"), as issuer, and U.S.
Bank Trust National Association (formerly First Trust of New York, National
Association, the "Trustee"), as Trustee, to the Indenture dated as of December
10, 1997 by and between the Company and the Trustee (the "Indenture").
W I T N E S S E T H :
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WHEREAS, the Company and the Trustee have heretofore executed and delivered
the Indenture providing for the issuance of 5% Convertible Subordinated Notes
due 2004 (collectively, the "Securities," and individually, a "Security") of the
Company;
WHEREAS, Section of 11.02 of the Indenture provides that the Company and
the Trustee may amend the Indenture with the written consent of the Holders of
at least a majority in principal amount of then-outstanding Securities;
WHEREAS, the Company has obtained the consents of a majority in principal
amount of the Securities to amend the definition of "Designated Event" in the
Indenture and to remove "Termination of Trading" as a "Designated Event"; and
WHEREAS, all other acts and proceedings required by law, by the Indenture
and by the certificate of incorporation and bylaws of the Company to make this
First Supplemental Indenture a valid and binding agreement for the purposes
expressed herein, in accordance with its terms, have been duly done and
performed;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration the
receipt of which is hereby acknowledged, and for the equal and proportionate
benefit of the Holders of the Securities, the Company and the Trustee hereby
agree as follows:
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SECTION 1. AMENDMENTS TO THE INDENTURE
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(a) The definition of "Designated Events" in Article I Section 1.01
shall be amended and shall read as follows:
"Designated Events" means the occurrence of a Change of Control.
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(b) Article I Section 1.01 shall be amended in its entirety to remove
the reference to and the definition of "Termination of Trading".
SECTION 2. OPERATIVENESS
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This First Supplemental Indenture will become operative and binding upon
each of the Company and the Trustee and the Holders on the day and year first
above written.
SECTION 3. REFERENCE TO AND EFFECT ON THE INDENTURE
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(a) On and after the operative date of this First Supplemental
Indenture, each reference in the Indenture to "this Indenture,"
"hereunder,""hereof," or "herein" shall mean and be a reference to the Indenture
as supplemented by this First Supplemental Indenture unless the context
otherwise requires.
(b) Except as specifically amended above, the Indenture shall remain in
full force and effect and is hereby ratified and confirmed.
SECTION 4. GOVERNING LAW
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This First Supplemental Indenture shall be construed and enforced in
accordance with the laws of the State of New York.
SECTION 5. DEFINED TERMS
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Unless otherwise indicated, capitalized terms used herein and not defined
shall have the respective meanings given such terms in the Indenture.
SECTION 6. CONFLICTS
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In the event of a conflict between the terms and conditions of the
Indenture and the terms and conditions of this First Supplemental Indenture,
then the terms and conditions of this First Supplemental Indenture shall
prevail.
SECTION 7. TRUST INDENTURE ACT CONTROLS
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If any provision of this First Supplemental Indenture limits, qualifies or
conflicts with another provision of this First Supplemental Indenture or the
Indenture that is required to be included by the Trust Indenture Act of 1939, as
amended (the "Act"), as in
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force at the date this First Supplemental Indenture is executed, the
provision required by said Act shall control.
SECTION 8. COUNTERPARTS AND METHOD OF EXECUTION
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This First Supplemental Indenture may be executed in several counterparts,
all of which together shall constitute one agreement binding on all parties
hereto, notwithstanding that all the parties have not signed the same
counterpart.
SECTION 9. TITLES
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Section titles are for descriptive purposes only and shall not control or
alter the meaning of this First Supplemental Indenture as set forth in the text.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be executed as of the day and year first above written.
TALK AMERICA HOLDINGS, INC.
(formerly TEL-SAVE HOLDINGS, INC.)
By: /s/ Aloysius T. Lawn IV
Name: Aloysius T. Lawn, IV
Title: Executive Vice President-General
Counsel and Secretary
By: /s/ Edward B. Meyercord, III
Name: Edward B. Meyercord, III
Title: President and Treasurer
U.S. BANK TRUST NATIONAL
ASSOCIATION (formerly FIRST TRUST
OF NEW YORK, NATIONAL
ASSOCIATION)
By: /s/ Barbara A. Nastro
Name: Barbara A. Nastro
Title: Vice President
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STATE OF PENNSYLVANIA )
: ss:
COUNTY OF BUCKS )
On the 4th day of April, 2002, before me personally came Aloysius T. Lawn
IV, to me known, who, being by me duly sworn, did depose and say that he resides
at 1409 Bramble Lane, West Chester, PA 19380; that he is an Executive Vice
President-General Counsel of Talk America Holdings, Inc., one of the parties
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporate seal; that it was so affixed to the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the board of directors of said
corporation; and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Amy McCusker
Notary Public
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STATE OF PENNSYLVANIA )
: ss:
COUNTY OF BUCKS )
On the 4th day of April, 2002, before me personally came Edward B.
Meyercord, III, to me known, who, being by me duly sworn, did depose and say
that he resides at 415 Ridgeview Road, Princeton, NJ 08540; that he is
President, Treasurer and a Director of Talk America Holdings, Inc., one of the
parties described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporate seal; that it was so affixed to the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the board of directors of said
corporation; and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Amy McCusker
Notary Public
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STATE OF NEW YORK )
: ss:
COUNTY OF QUEENS )
On the 4th day of April, 2002, before me personally came Barbara Nastro, to
me known, who, being by me duly sworn, did depose and say that she resides at
100 Wall Street, New York City; that he is a Trust Officer of U.S. Bank Trust
National Association, one of the parties described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal; that it was so
affixed to the corporate seal of said corporation; that the seal affixed to the
said instrument is such corporate seal; that it was so affixed by authority of
the board of directors of said corporation; and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
/s/ Janet P. O'Hara
Notary Public
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