Exhibit 4 (b) (1)
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INTER*ACT ELECTRONIC MARKETING, INC.
(as successor to Inter*Act Operating Co., Inc.)
AND
STATE STREET BANK AND TRUST COMPANY
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 30, 1999
TO
INDENTURE
Dated as of December 15, 1999
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FIRST SUPPLEMENTAL INDENTURE, dated as of the 30th day of December, 1999 (herein
called the "Supplement"), between INTER*ACT ELECTRONIC MARKETING, INC., a
corporation duly organized and existing under the laws of the State of North
Carolina (hereinafter referred to as "Intero Act") and successor-in-interest to
Intero Act Operating Co., Inc., a corporation duly organized and existing under
the laws of the State of North Carolina (hereinafter referred to as the
"Subsidiary"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company (hereinafter referred to as the "Trustee"), under the Indenture dated as
of December 15, 1999, between the Subsidiary and the Trustee (the "Indenture").
Capitalized terms used in this Supplement and not otherwise defined herein shall
have the meanings set forth in the Indenture.
WHEREAS, the Subsidiary merged with and into Inter*Act effective as
of the date hereof (the "Merger");
WHEREAS, Section 801(a) of the Indenture expressly permits the merger
of the Subsidiary with and into Inter*Act, and pursuant to Section 8.02 of the
Indenture upon the effectiveness of the Merger, Inter*Act succeeded to, and was
substituted for, and may exercise every right and power, of the Subsidiary under
the Indenture with the same effect as if Inter*Act had originally been party
thereto.
WHEREAS, in accordance with Section 901 of the Indenture, Intero Act
and the Trustee may amend the Indenture without the written consent of any
Holders to evidence the succession of another Person to the Subsidiary and the
assumption by such successor of the covenants of the Subsidiary contained in the
Indenture and in the Securities in accordance with Article VIII of the
Indenture; and
WHEREAS, Intero Act desires to amend the Indenture in accordance with
Section 901 thereof and has determined that the requirements of Article VIII and
Section 903 of the Indenture have been satisfied and has requested the Trustee
to join with it in the execution and delivery of this Supplement; all
requirements necessary to make this Supplement a valid instrument, in accordance
with its terms, have been met; and the execution and delivery hereof have been
in all respects duly authorized.
WHEREAS, Intero Act has (i) delivered to the Trustee an Officer's
Certificate relating to the Merger and this First Supplemental Indenture as
contemplated by Section 8.01(b) of the Indenture, (ii) delivered to the Trustee
an Opinion of Counsel relating to the Merger and this First Supplemental
Indenture as contemplated by Section 801(b) and Section 903 of the Indenture and
(iii) satisfied all other conditions required under ARTICLE IX of the Indenture
to enable the Intero Act and the Trustee to enter into this Supplemental
Indenture.
NOW, THEREFORE, for good and valuable consideration the sufficiency of
which is hereby recognized, Intero Act covenants and agrees with the Trustee as
follows:
ARTICLE I
AMENDMENTS TO THE INDENTURE
Section 1.1 Successor Substituted. Inter*Act hereby expressly assumes
the due and punctual payment of the principal of, premium, if any, and interest
on all the Securities, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of the Indenture
to be performed by the Subsidiary.
ARTICLE II
MISCELLANEOUS
Section 2.1 Effectiveness of Provisions. This Supplement shall be
effective and binding upon Intero Act, the Trustee and the Holders of Notes as
of the day and year first written above.
Section 2.2 Execution of Supplement. This Supplement is executed and
shall be construed as an indenture supplemental to the Indenture and, as
provided in the Indenture, this Supplement forms a part thereof.
Section 2.3 Conflict with Trust Indenture Act. If and to the extent
that any provision hereof limits, qualifies or conflicts with the duties imposed
by Sections 310 through 317, inclusive, of the Trust Indenture Act of 1939, as
amended, such imposed duties shall control.
Section 2.4 Successors and Assigns. All covenants and agreements in
this Supplement by Intero Act shall bind its successors and assigns, whether so
expressed or not.
Section 2.5 Separability Clause. In case any one or more of the
provisions contained in this Supplement, the Indenture or in the Notes shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Supplement, the Indenture or of such Notes, but this Supplement, the
Indenture and such Notes shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section 2.6 Benefits of Supplement. Nothing in this Supplement or in
the Indenture, express or implied, shall give to any person, other than the
parties hereto and their successors hereunder and the holders of Debentures (to
the extent specified herein or therein), any benefit or any legal or equitable
right, remedy or claim under this Supplement.
Section 2.7 Governing Law. This Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York 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.
Section 2.8 Execution and Counterparts. This Supplement may be executed
in any number of counterparts, each of which shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 2.9 Miscellaneous. Except as expressly supplemented by this
Supplement, the Indenture shall remain unchanged and in full force and effect.
Section 2.10 Trustee Disclaimer. The Trustee has accepted the amendment
of the Indenture effected by this Supplemental Indenture and agrees to execute
the trust created by the Indenture as hereby amended, but only upon the terms
and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, and
without limiting the generality of the foregoing, the Trustee shall not be
responsible in any manner whatsoever for or with respect to any of the recitals
or statements contained herein, all of which recitals or statements are made
solely by Inter*Act, or for or with respect to (a) the validity or sufficiency
of this Supplemental Indenture or any of the terms or provisions hereof, (b) the
proper authorization hereof by Inter*Act by corporate action or otherwise, (c)
the due execution hereof by Inter*Act, (d) the consequences (direct or indirect
and whether deliberate or inadvertent) of any amendment herein provided for, and
the Trustee makes no representation with respect to any such matters and (e) the
validity or sufficiency of the consent solicitation or the consent solicitation
materials or procedure in connection therewith.
IN WITNESS WHEREOF, Inter*Act and the Trustee have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized, and their respective corporate seals to be hereunto affixed and
attested, as of the day and year first above written.
INTER*ACT ELECTRONIC MARKETING, INC.
as successor to Inter*Act Operating Co., Inc.
By: /s/ Thomas McGoldrick
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Thomas McGoldrick
Executive Vice President
[Corporate Seal]
Attest:
/s/ Dan T. Barker Jr.
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Name:
Title: Asst Secretary
STATE STREET BANK AND TRUST COMPANY,
as TRUSTEE
By: /s/ Michael M. Hopkins
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Name: Michael M. Hopkins
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Title: Vice President
[Corporate Seal] --------------------------------------
Attest:
/s/ Elizabeth C. Haymer
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Name:
Title: Vice President