EXHIBIT (d)(8)
TALK AMERICA HOLDINGS, INC.
To
WILMINGTON TRUST COMPANY
Trustee
----------------------------
SUPPLEMENTAL INDENTURE NO. 2
Dated as of [ ], 2002
to
INDENTURE
Dated as of [_________], 2002
----------------------------
U.S. [_____________]
12% Senior Subordinated PIK Notes due August 15, 2007
TALK AMERICA HOLDINGS, INC.
SUPPLEMENTAL INDENTURE NO. 2
Dated as of [ ], 2002
--------------
12% Senior Subordinated PIK Notes due August 15, 2007
SUPPLEMENTAL INDENTURE NO. 2, dated as of [__________], 2002, between TALK
AMERICA HOLDINGS, INC., a corporation duly organized and existing under the laws
of the State of Delaware with executive offices located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter sometimes called the
"Company") and WILMINGTON TRUST COMPANY with offices located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter sometimes
called the "Trustee") as Trustee under an indenture of the Company (the
"Indenture") dated as of [______________], 2002.
RECITALS OF THE COMPANY
Section 301 of the Indenture provides for the issuance from time to
time of debentures, notes, bonds or other evidences of indebtedness (the
"Securities") of the Company, issuable for the purposes and subject to the
limitations contained in the Indenture. The Company has duly authorized the
creation of an issue of its Securities named its 12% Senior Subordinated PIK
Notes Due August 15, 2007 of the tenor and in the amount hereinafter set forth.
Section 901 of the Indenture provides that the Company, when authorized
by a resolution of its Board of Directors, and the Trustee may from time to time
and at any time enter into one or more indentures supplemental to the Indenture
to establish, among other things, the form and terms of Securities of any series
as permitted by Section 301 of the Indenture and to add to the covenants of the
Company for the benefit of the Holders of all or any series of Securities or to
surrender any right or power therein conferred upon the Company.
The Company has duly authorized the execution and delivery of this
Supplemental Indenture No. 2, and all things necessary have been done to make
the Notes (as defined below), when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company, the valid obligations of the
Company, and to make this Supplemental Indenture No. 2 a valid agreement of the
Company, in accordance with its terms.
NOW, THEREFORE, THIS SUPPLEMENTAL
INDENTURE NO. 2 WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities of the series provided for herein, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
of such series, as follows:
ARTICLE I
The Series of Securities
Section 1.01 There shall be a series of Securities designated the 12%
Senior Subordinated PIK Notes due August 15, 2007 of the Company (herein,
"Notes"), limited in aggregate principal amount (except (i) such additional
amount of Notes as may be paid as interest pursuant to the terms and provisions
of the Notes and (ii) as provided in Section 306 of the Indenture) to
[$________].
Section 1.02 Each Note shall be substantially in the form and contain
the terms and provisions set forth in the form of Note attached hereto as
Exhibit A and incorporated by reference herein. If any provision of this
Supplemental Indenture No. 2 limits, qualifies, or conflicts with any term or
provision of the Notes, such provision in the Notes shall control.
ARTICLE II
Relation to Indenture; Definitions
Section 2.01 This Supplemental Indenture No. 2 constitutes an integral
part of the Indenture and shall be construed in connection with and as part of
the Indenture.
Section 2.02 For all purposes of this Supplemental Indenture No. 2,
capitalized terms used herein without definition shall have the meanings
specified in the Indenture. If any term is defined in this Supplemental
Indenture No. 2 and in the Indenture, such term shall have the meaning assigned
to it in this Supplemental Indenture No. 2.
ARTICLE III
Covenants
Section 3.01 The provisions of Article Ten of the Indenture entitled
"Covenants" shall be applicable to the Notes.
ARTICLE IV
Redemption
Section 4.01 The provisions of Article Eleven of the Indenture entitled
"Redemption of Securities" shall be applicable to the Notes.
2
Section 4.02 The Notes may be redeemed at any time in whole or in part
(in any integral multiple of $1,000, except that additional Notes issued in lieu
of cash interest may be redeemed in denominations of less than $1,000), at the
option of the Company upon not less than 30 nor more than 60 days' prior notice
to the Holders thereof, at par value, plus accrued and unpaid interest thereon
to the Redemption Date (subject to the right of holders of record on the
relevant record date to receive interest due on an Interest Payment Date).
On or after the redemption date, interest will cease to accrue on the
Notes, or portion thereof, called for redemption.
ARTICLE V
Sinking Funds
Section 5.01 The provisions of Article Twelve of the Indenture entitled
"Sinking Funds" shall not be applicable to the Notes.
ARTICLE VI
Subordination
Section 6.01 The provisions of Article Thirteen of the Indenture
entitled "Subordination of Securities" shall be applicable to the Notes.
ARTICLE VII
Conversion
Section 7.01 The provisions of Article Fourteen of the Indenture
entitled "Conversion of Securities" shall not be applicable to the Notes.
ARTICLE VIII
Defeasance and Covenant Defeasance
Section 8.01 The provisions of Article Fifteen of the Indenture
entitled "Defeasance and Covenant Defeasance" shall not be applicable to the
Notes.
ARTICLE IX
Miscellaneous
Section 9.01 The recitals of fact herein and in the Notes shall be
taken as statements of the Company and shall not be construed as made by the
Trustee.
3
Section 9.02 THIS SUPPLEMENTAL INDENTURE NO. 2 AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 9.03 In case any one or more of the provisions contained in
this Supplemental Indenture No. 2 or in the Notes should be invalid, illegal, or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected, impaired, prejudiced or disturbed thereby.
Section 9.04 Wherever in this Supplemental Indenture No. 2 any of the parties
hereto is named or referred to, such reference shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Indenture No. 2 contained by or on behalf of the Company or
the Trustee shall bind and inure to the benefit of the respective successors and
assigns of such parties, whether so expressed or not.
Section 9.05
(a) This Supplemental Indenture No. 2 may 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.
(b) The descriptive headings of the several Articles of this
Supplemental Indenture No. 2 were formulated, used and
inserted in this Supplemental Indenture No. 2 for
convenience only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof.
4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 2 to be duly executed, all as of the day and year first above
written.
WILMINGTON TRUST COMPANY
as Trustee
By: __________________________
Name:
Title:
TALK AMERICA HOLDINGS, INC.
By: ________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. Lawn IV
Title: Executive Vice President-
General Counsel and
Secretary
5
STATE OF ______________)
: ss:
COUNTY OF _____________)
On the ___day of [_______], [___], before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he resides at _____________________________; that he is a Trust Officer of
Wilmington Trust Company, 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]
---------------------
Notary Public
6
STATE OF PENNSYLVANIA )
: ss:
COUNTY OF BUCKS )
On the ___day of [_______], [___], before me personally came ▇▇▇▇▇▇▇▇
▇. Lawn IV, to me known, who, being by me duly sworn, did depose and say that he
resides at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; that he is an Executive
Vice President-General Counsel and Secretary 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]
---------------------
Notary Public
7
EXHIBIT A
FORM OF SENIOR SUBORDINATED NOTE
[FORM OF FACE OF NOTE]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
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No.
-----------------------
Cusip No.
TALK AMERICA HOLDINGS, INC.
12% SENIOR SUBORDINATED PIK NOTE
DUE 2007
TALK AMERICA HOLDINGS, INC.
Talk America Holdings, Inc., a Delaware corporation, promises to pay to
_____________________________________________ or registered assigns,
the principal sum indicated on Schedule A hereof on ___________________, 2007.
Interest Payment Dates: February 15 and August 15, commencing August
15, 2002.
Record Dates: __________________ and ___________ .
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
A-2
IN WITNESS WHEREOF, Talk America Holdings, Inc. has caused this Note to
be signed manually or by facsimile by its duly authorized Officers and a
facsimile of its corporate seal to be affixed hereto or imprinted hereon.
Dated: _____________________________
TALK AMERICA HOLDINGS, INC.,
by
[Seal]
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the 12% Subordinated PIK Notes due 2007 described in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY, as Trustee,
by
Authorized Officer
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TALK AMERICA HOLDINGS, INC.
12% Senior Subordinated PIK Note Due 2007
1. Interest. TALK AMERICA HOLDINGS, INC., a Delaware corporation (the
"Company"), is the issuer of the 12% Subordinated PIK Notes Due 2007 (the
"Notes"), of which this Note is a part. The Company promises to pay interest on
the Notes in cash semiannually on each February 15 and August 15, commencing on
August 15, 2002, to holders of record on the immediately preceding February 1
and August 1; provided, however, that through and including August 15, 2004, the
Company may, at its option and in its sole discretion, in lieu of the payment of
up to one-third of the interest due on the Notes on any interest payment date
through the issuance of additional Notes in the aggregate principal amount equal
to such amount of interest that would otherwise be payable with respect to the
Notes in cash. After August 15, 2004, the Company shall pay interest on the
Notes in cash. The Company shall notify the Trustee (as defined below) in
writing of its election to pay interest on the Notes through the issuance of
additional Notes not less than 10 nor more than 45 days prior to the record date
for the interest payment date on which additional Notes will be issued.
Additional Notes shall be governed by, and entitled to the benefits of, the
Indenture (as defined below) and shall be subject to the terms of the Indenture
and shall be subject to the same terms (including the rate of interest from time
to time payable thereon) as the Notes (except, as the case may be, with respect
to the issuance date and aggregate principal amount).
Interest on the Notes will accrue from the most recent date to which
interest has been paid, or if no interest has been paid, from the date the Notes
are issued. Interest will be computed on the basis of a 360-day year of twelve
30-day months. To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the
rate borne by the Notes, compounded annually.
2. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the persons who are registered holders of the Notes at
the close of business on the record date for the next interest payment date even
though the Notes are canceled after the record date and on or before the
interest payment date. The Noteholder hereof must surrender Notes to a Paying
Agent to collect principal payments. With respect to cash interest payments,
the Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal and interest by check payable in such
money. It may mail an interest check to a holder's registered address.
3. Paying Agent and Registrar. The Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without prior
notice.
4. Indenture. The Company issued the Notes under an indenture, dated as of
[__________], 2002 (the "Indenture"), between the Company and Wilmington Trust
Company, as Trustee and under a supplemental indenture, dated as of [_____],
2002 (the "Supplemental Indenture No. 2"), between the Company and the Trustee.
The terms of the Notes include those stated in the Indenture, those in the
Supplemental Indenture No. 2 and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) (the "TIA") as in
effect on the date of the Indenture. The Notes are subject to, and qualified by,
all such terms, certain of which are summarized hereon, and Noteholders are
referred to the Indenture and the TIA for a statement of such terms. The Notes
are general unsecured obligations of the Company limited to an aggregate
principal amount of $_____________. The Indenture does not limit the ability of
the Company or any of its Subsidiaries to incur indebtedness or to grant
security interests or liens in respect of their assets.
5. Optional Redemption. The Notes will be subject to redemption at the
option of the Company at any time, in whole or in part (in any integral multiple
of $1,000, except that additional Notes issued in lieu of cash interest may be
redeemed in denominations of less than $1,000), at par value, plus accrued and
unpaid interest thereon to the Redemption Date.
On or after the redemption date, interest will cease to accrue on the
Notes, or portion thereof, called for redemption.
A-4
6. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each holder of
the Notes to be redeemed at his address of record. The Notes in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000, except that additional Notes issued in lieu of cash interest may be
redeemed in denominations of less than $1,000. In the event of a redemption of
less than all of the Notes, the Notes will be chosen for redemption by the
Trustee in accordance with the Indenture. Unless the Company defaults in making
such redemption payment, or a Paying Agent is prohibited from making such
payment pursuant to the Indenture, by law or otherwise, interest ceases to
accrue on the Notes or portions of them called for redemption on and after the
redemption date.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the person in whose name
this Note is registered at the close of business on such record date.
7. Mandatory Redemption. The Company will not be required to make
mandatory redemption payments with respect to the Notes. There are no sinking
fund payments with respect to the Notes.
8. Subordination. The payment of the principal of, interest on or any
other amounts due on the Notes is subordinated in right of payment to all
existing and future Senior Debt of the Company, as described in the Indenture.
Each Noteholder, by accepting a Note, agrees to such subordination and
authorizes and directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee as its attorney-in-fact for such purpose.
9. Denominations, Transfer, Exchange and Replacement. The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000, except that additional Notes issued in lieu of cash
interest may be issued in denominations of less than $1,000 to the extent
necessary to pay all interest then due. The transfer of Notes may be registered,
and Notes may be exchanged, as provided in the Indenture. The Registrar may
require a Noteholder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not exchange or register the
transfer of any Note or portion of a Note selected for redemption (except the
unredeemed portion of any Note being redeemed in part). Also, it need not
exchange or register the transfer of any Note for a period of 15 days before a
selection of Notes to be redeemed. Replacement Notes for lost, stolen or
mutilated Notes may be issued in accordance with the terms of the Indenture.
10. Persons Deemed Owners. The registered Noteholder of a Note may be
treated as its owner for all purposes.
11. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its request. After that, Noteholders of the Notes
entitled to the money must look to the Company for payment, unless an abandoned
property law designates another person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
A-5
12. Defaults and Remedies. The Notes shall have the Events of Default
as set forth in Section 501 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the Trustee by
notice to the Company or the Noteholders in aggregate principal amount of the
then-outstanding Notes by notice to the Company and the Trustee may declare all
the Notes to be due and payable immediately, except that in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all unpaid
principal and interest accrued on the Notes shall become due and payable
immediately without further action or notice. Upon acceleration as described in
either of the preceding sentences, the subordination provisions of the Indenture
preclude any payment being made to Noteholders for at least five Business Days
except as otherwise provided in the Indenture.
The Noteholders of a majority in principal amount of the Notes then
outstanding by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Noteholders of a
majority in principal amount of the then-outstanding Notes issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish compliance certificates to the Trustee annually. The above
description of Events of Default and remedies is qualified by reference to, and
subject in its entirety by, the more complete description thereof contained in
the Indenture.
13. Amendments, Supplements and Waivers. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Noteholders of at least a majority in principal amount of the
then-outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for Notes), and any existing default may be waived with
the consent of the Noteholders of a majority in principal amount of the
then-outstanding Notes, including consents obtained in connection with a tender
offer or exchange offer for Notes. Without the consent of any Noteholder, the
Indenture or the Notes may be amended, among other things, to cure any
ambiguity, defect or inconsistency, to provide for assumption of the Company's
obligations to Noteholders, to make any change that does not adversely affect
the rights of any Noteholder, to qualify the Indenture under the TIA, or to
comply with the requirements of the SEC in order to maintain the qualification
of the Indenture under the TIA.
14. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity, may become the owner or pledgee of the Notes and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
15. No Recourse Against Others. A director, Officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Noteholder, by accepting a Note, waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
A-6
16. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
17. Authentication. The Notes shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee or an
authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as: TEN COM (for tenants in common), TEN ENT
(for tenants by the entireties), JT TEN (for joint tenants with right of
survivorship and not as tenants in common), CUST (for Custodian), and U/G/M/A
(for Uniform Gifts to Minors Act).
19. Definitions. Capitalized terms not defined in this Note have the
meaning given to them in the Indenture.
The Company will furnish to any Noteholder of the Notes upon written
request and without charge a copy of the Indenture. Request may be made to:
Talk America Holdings, Inc.
Attn: General Counsel and Secretary
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
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(Insert assignee's social security or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________ agent to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Your Signature: _____________________________________
(Sign exactly as your name appears on
the other side of this Note)
Date: _______________________
Medallion Signature Guarantee: ______________________
A-8
SCHEDULE A
The initial principal amount at maturity of this Global Security shall
be [$________]. The following increases or decreases in the principal amount of
this Global Security have been made:
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Amount of increase in
Principal Amount of this
Global Security Amount of decrease in Principal Amount of this Signature of authorized
including upon exercise Principal Amount of this Global Security following officer of Trustee or
Date Made of over-allotment option Global Security such decrease or increase Securities Custodian
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A-9