Exhibit 10.82.2
SUPPLEMENTAL INDENTURE
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This Supplemental Indenture, dated as October 17, 1997, is by and
between ITC/\DeltaCom, Inc., a Delaware corporation (the "Company"), and United
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States Trust Company of New York, a bank and trust company organized under the
New York banking law (the "Trustee").
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RECITALS
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WHEREAS, the Company and the Trustee have entered into an Indenture
dated as of June 3, 1997 (the "Indenture"), pursuant to which the Company has
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issued and has outstanding on the date hereof its 11% Senior Notes due 2007 (the
"Notes");
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WHEREAS, ITC Holding proposes to merge with and into the Company (the
"Merger");
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WHEREAS, the Company wishes to make Fractional Share Cash Payments (as
defined in this Supplemental Indenture) in connection with the Merger;
WHEREAS, the Company has requested the Trustee to enter into this
Supplemental Indenture to authorize the making of Fractional Share Cash Payments
in connection with the Merger;
WHEREAS, Section 9.01(5) of the Indenture permits the Company and the
Trustee to amend or supplement the Indenture or the Notes without notice to or
the consent of any Holder, provided, that, in the good faith opinion of the
Board of Directors as evidenced by a Board Resolution, such change does not
materially and adversely affect the rights of any Holder;
WHEREAS, in the good faith opinion of the Board of Directors as
evidenced by a Board Resolution delivered to the Trustee on the date hereof, the
making of Fractional Share Cash Payments in connection with the Merger does not
materially and adversely affect the rights of any Holder;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties hereto agree as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise
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defined herein shall have the meanings ascribed to them in the Indenture.
2. EFFECTIVENESS. This Supplemental Indenture shall be effective as
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of October 17, 1997.
3. AMENDMENT OF SECTION 1.01. Section 1.01 of the Indenture is
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hereby amended by adding the following definition thereto between "fair market
value" and "GAAP," which shall read in its entirety as follows:
"Fractional Share Cash Payments" means payments of
cash by the Company or any Restricted Subsidiary, in an
aggregate amount not to exceed $50,000, in connection
with or related to the merger of ITC Holding with and
into the Company to holders of Common Stock and Preferred
Stock issued by the Company, and to holders of options to
purchase Common Stock assumed by the Company or out-
standing at the time of such merger, in connection with
or related to such merger in lieu of the issuance by the
Company of fractional shares of Common Stock or Preferred
Stock, as the case may be.
4. AMENDMENT OF SECTION 4.04. The second paragraph of Section 4.04
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of the Indenture is hereby amended by adding the following provision after
clause (ix) thereof:
or (x) the payment by the Company or any Restricted
Subsidiary of Fractional Share Cash Payments;
5. AMENDMENT OF SECTION 5.01. Clause (A) following the second
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proviso of clause (iv) of Section 5.01 is hereby amended in its entirety to read
as follows:
(A) in connection with any such merger or consolidation,
no consideration (except Capital Stock (other than
Redeemable Stock) in the surviving Person or the Company
(or a Person that owns directly or indirectly all of the
Capital Stock of the surviving Person or the Company
immediately following such transaction) and
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Fractional Share Cash Payments) shall be issued or
distributed to the stockholders of the Company
5. MISCELLANEOUS.
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(a) The parties hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments and documents as any other
party hereto may reasonably request in order to carry out the intent and
accomplish the purposes of this Supplemental Indenture and the consummation of
the transactions contemplated hereby.
(b) This Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Indenture and shall form a part
thereof.
(c) This Supplemental Indenture shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
(d) Except as expressly amended hereby, all terms and provisions
of the Indenture shall continue to be and shall remain in full force and effect
and the Holders shall be entitled to all of the benefits thereof.
(e) The section headings contained herein are for reference
purposes only and shall not be deemed to be a part hereof or to affect the
meaning or interpretation hereof.
(f) This Supplemental Indenture may be executed in one or more
counterparts, all of which taken together shall be deemed to constitute one and
the same instrument.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this
Supplemental Indenture to be duly executed as of the day and year first above
written.
ITC/\DELTACOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-Chief
Financial Officer
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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