EXHIBIT 99.1
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BTI TELECOM CORP.
and
U.S. BANK TRUST NATIONAL ASSOCIATION
(SUCCESSOR TO FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION),
as Trustee
First Supplemental Indenture
Dated as of October 26, 2001
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 26, 2001 (the "First
Supplemental Indenture"), between BTI TELECOM CORP., a corporation duly
organized and existing under the laws of the state of North Carolina (the
"Company"), and U.S. BANK TRUST NATIONAL ASSOCIATION (formerly known as First
Trust of New York, National Association), a national banking association duly
incorporated and existing under the laws of the United States of America, as
Trustee under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS the Company has heretofore executed and delivered to the Trustee an
indenture dated as of September 22, 1997 (the "Original Indenture" and together
with the First Supplemental Indenture, the "Indenture"), pursuant to which the
Company issued its 10 1/2% Senior Notes due 2007 (the "Notes") in the aggregate
principal amount of $250,000,000; and
WHEREAS, Section 9.02 of the Original Indenture provides, among other
things, that the Company, when authorized by its Board of Directors, and the
Trustee may amend the Original Indenture with the written consent of the holders
of a majority in principal amount of the Notes then outstanding (the "Requisite
Consents") as calculated pursuant to Section 2.10 of the Original Indenture; and
WHEREAS, the Company has obtained the Requisite Consents from the Holders
to amend certain provisions of the Original Indenture on the terms hereinafter
provided; and
WHEREAS, the execution and delivery by the Company of this First
Supplemental Indenture have been duly authorized by the Board of Directors of
the Company by appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE ONE
DEFINITIONS.
Except to the extent such terms are otherwise defined in this First
Supplemental Indenture or the context clearly requires otherwise, the use of
terms and expressions herein is in accordance with the definitions, uses and
constructions contained in the Original Indenture.
ARTICLE TWO
AMENDMENTS.
Section 201. Amendments. Subject to the execution and delivery hereof by
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the parties hereto, but effective as of the date hereof, the Indenture is hereby
amended as follows:
(a) The definitions in Section 1.01 of the Original Indenture for the
following terms are deleted in their entirety: "Acquired Assets," "Adjusted
Consolidated Net Income," "Asset Sale," "Average Life," "Change of Control,"
"Consolidated EBITDA," "Consolidated Interest Expense," "Consolidated Leverage
Ratio," "Consolidated Net Worth," "Credit Facilities," "Excess Proceeds,"
"Guaranteed Indebtedness," "Net Cash Proceeds," "Permitted Investment,"
"Permitted Liens," "Restricted Payments," "Strategic Subordinated Indebtedness,"
"Subsidiary Guarantee," "Telecommunications Business," "Temporary Cash
Investment," and "Wholly Owned."
(b) The definition of "Fair Market Value" is hereby amended to read in its
entirety as follows:
"Fair Market Value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith by the Board of Directors, whose
determination shall be conclusive if evidenced by a Board Resolution.
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(c) The definition of "Investment" is hereby amended to read in
its entirety as follows:
"Investment" in any Person means any direct or indirect advance,
loan or other extension of credit (including, without limitation, by
way of Guarantee or similar arrangement; but excluding advances to
customers in the ordinary course of business that are, in conformity
with GAAP, recorded as accounts receivable on the balance sheet of the
Company or its Restricted Subsidiaries) or capital contribution to (by
means of any transfer of cash or other property to others or any
payment for property or services for the account or use of others), or
any purchase or acquisition of Capital Stock, bonds, notes, debentures
or other similar instruments issued by, such Person and shall include
(i) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary and (ii) the Fair Market Value of the Capital Stock (or any
other Investment), held by the Company or any of its Restricted
Subsidiaries, of (or in) any Person that has ceased to be a Restricted
Subsidiary. For purposes of the definition of "Unrestricted
Subsidiary", (i) "Investment" shall include the Fair Market Value of
the assets (net of liabilities (other than liabilities to the Company
or any of its Subsidiaries)) of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted
Subsidiary, (ii) the Fair Market Value of the assets (net of
liabilities (other than liabilities to the Company or any of its
Subsidiaries)) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary shall be
considered a reduction in outstanding Investments and (iii) any
property transferred to or from any Person shall be valued at its Fair
Market Value at the time of such transfer.
(d) The definition of "Redeemable Stock" is hereby amended to
read in its entirety as follows:
"Redeemable Stock" means any class or series of Capital Stock of
any Person that by its terms or otherwise is (i) required to be
redeemed prior to the Stated Maturity of the Notes, (ii) redeemable at
the option of the holder of such class or series of Capital Stock at
any time prior to the Stated Maturity of the Notes or (iii)
convertible into or exchangeable for Capital Stock referred to in
clause (i) or (ii) above or Indebtedness having a scheduled maturity
prior to the Stated Maturity of the Notes.
(e) The definition of "Unrestricted Subsidiary" is hereby
amended to read in its entirety as follows:
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and
(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Restricted Subsidiary (including any newly
acquired or newly formed Subsidiary of the Company) to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock
of, or owns or holds any Lien
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on any property of, the Company or any Restricted Subsidiary; provided
that the Subsidiary to be so designated has total assets of $1,000 or
less. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that (i) no Default or Event
of Default shall have occurred and be continuing at the time of or
after giving effect to such designation and (ii) all Liens and
Indebtedness of such Unrestricted Subsidiary outstanding immediately
after such designation would, if Incurred at such time, have been
permitted to be Incurred for all purposes of this Indenture. Any such
designation by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing provisions.
(f) Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.19, 5.01 and 5.02 of the Original
Indenture, and all cross-references within the Original Indenture to such
Sections, are deleted in their entirety.
(g) Section 6.01 of the Original Indenture is hereby amended to
read in its entirety as follows:
"SECTION 6.01. Events of Default. An "Event of Default" shall
occur with respect to the Notes if:
(a) the Company defaults in the payment of principal of (or
premium, if any, on) any Note when the same becomes due and payable
at maturity, upon acceleration, redemption or otherwise;
(b) the Company defaults in the payment of interest
on any Note when the same becomes due and payable, which defaults
continue for a period of 30 days; provided that a failure to make any
of the first six scheduled interest payments on the Notes on the
applicable Interest Payment Date will constitute an Event of Default
with no grace or cure period;
(c) the Company defaults in the performance or breaches
Section 3.01(c), or the failure to make or consummate an Offer to
Purchase in accordance with Section 4.20;
(d) the Company defaults in the performance or breaches
Section 4.02 or Section 4.15 or any other covenant or agreement of the
Company in this Indenture or under the Notes relating to certain of the
Company's obligations to the Trustee (other than a default specified in
clause (a), (b) or (c) above), which default or breach continues for a
period of 30 consecutive days after written notice by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes
then outstanding;
(e) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
(B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially
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all of the property and assets of the Company or any Significant
Subsidiary or (C) the winding up or liquidation of the affairs of the
Company or any Significant Subsidiary and, in each case, such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days;
(f) the Company or any Significant Subsidiary (A) commences
a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors; or
(g) the Pledge Agreement shall cease to be in full force and
effect or enforceable in accordance with its terms, other than in
accordance with its terms."
(h) The lead-in paragraph of Section 8.03 of the Original
Indenture is hereby amended to read in its entirety as follows:
"SECTION 8.03. Defeasance of Certain Obligations. The
Company may omit to comply with any term, provision or condition set
forth in Section 4.15 and clause (d) of Section 6.01 with respect to
Section 4.15 shall be deemed not to be an Event of Default with
respect to the outstanding Notes if:"
(i) Exhibit A of the Original Indenture is hereby amended
to read in its entirety as set forth in Exhibit A attached hereto.
Section 202. Terms of Notes. The terms of the $250,000,000
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of Notes authorized pursuant and issued under the Original Indenture include the
terms in this First Supplemental Indenture and the Indenture as amended thereby.
The Notes are subject to all such terms and the Holders are referred to the
Indenture for a statement of all such terms. To the extent permitted by
applicable law, in the event of any inconsistency between the terms of the Notes
and the terms of the Indenture, the terms of the Indenture as amended hereby
shall control.
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ARTICLE 3
EFFECTIVENESS.
This First Supplemental Indenture shall become a binding
agreement between the parties hereto when executed by the parties hereto. The
amendments set forth in Article 2 shall become effective only upon the
acceptance of the Notes for purchase pursuant to the terms of the offer (the
"Tender Offer") to purchase the Notes for cash by Welsh, Carson, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇ VIII, L.P., a Delaware limited partnership, and BTI Investors LLC, a
Delaware limited liability company, and as set forth in the Offer to Purchase
and Consent Solicitation Statement dated October 12, 2001, as it may be amended
or supplemented.
ARTICLE FOUR
MISCELLANEOUS.
Section 401. Execution as Supplemental Indenture. This First
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Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof.
Section 402. Conflict With Trust Indenture Act. If any
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provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this First Supplemental Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 403. Effect of Headings. The Article and Section
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headings herein are for convenience only and shall not affect the construction
hereof.
Section 404. Successors and Assigns. All covenants and
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agreements in the Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
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Section 405. Separability Clause. In case any provision in
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this First Supplemental Indenture shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 406. Benefits of First Supplemental Indenture.
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Nothing in this First Supplemental Indenture or in the Notes, express or
implied, shall give to any person, other than the parties hereto and their
successors hereunder and the holders, any benefit or any legal or equitable
right, remedy or claim under this First Supplemental Indenture.
Section 407. Governing Law. This First Supplemental Indenture
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and each Note shall be deemed to be a contract made under the laws of the State
of New York, and for all purposes shall be governed by and construed in
accordance with the laws of said State.
Section 408. Execution and Counterparts. This First
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Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective seals to be
hereunto affixed and attested, all as of the day and year first above written.
BTI TELECOM CORP.
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
Attest
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: EVP/General Counsel
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Trust Officer
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
[FACE OF NOTE]
BTI TELECOM CORP.
10 1/2% Senior Note due 2007
[CUSIP] [CINS] [__________]
No. $
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BTI TELECOM CORP., a North Carolina corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to _____________, or its registered assigns, the
principal sum of ____________ ($____) on September 15, 2007.
Interest Payment Dates: March 15 and September 15.
Regular Record Dates: March 1 and September 1.
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.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date:
BTI TELECOM CORP.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 10 1/2% Senior Notes due 2007 described in the
within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
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Authorized Signatory
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[REVERSE SIDE OF NOTE]
BTI TELECOM CORP.
10 1/2% Senior Note due 2007
1. Principal and Interest.
The Company will pay the principal of this Note on September 15,
2007.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per annum
shown above.
Interest will be payable semiannually (to the holders of record of
the Notes at the close of business on the March 1 or September 1 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
March 15, 1998.
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 September 22,
1997; provided that, if there is no existing default in the payment of interest
and this Note is authenticated between a Regular Record Date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such Interest Payment Date. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum that is 2% in excess of the rate otherwise payable.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes as provided above on each March 15 and September
15 commencing March 15, 1998 to the persons who are Holders (as reflected in the
Security Register at the close of business on the March 1 or September 1
immediately preceding the Interest Payment Date), in each case, even if the Note
is cancelled on registration of transfer or registration of exchange after such
record date; provided that, with respect to the payment of principal, the
Company will make payment to the Holder that surrenders this Note to a Paying
Agent on or after September 15, 2007.
The Company will pay principal, premium, if any, and as provided
above, 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, premium, if any, and interest by its check payable in such money.
It may mail an interest check to a Holder's registered address (as reflected in
the Security Register). If a payment date is a date other than a Business Day at
a place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent, Paying Agent
and Registrar. The Company may change any authenticating agent, Paying Agent or
Registrar without notice. The Company, any Subsidiary or any Affiliate of any of
them may act as Paying Agent, Registrar or co-Registrar.
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4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
September 22, 1997 (the "Original Indenture"), among BTI Telecom, BTI and First
Trust of New York, National Association, trustee (the "Trustee"), as amended by
the First Supplemental Indenture dated as of October 26, 2001 (the "First
Supplemental Indenture" and together with the Original Indenture, the
"Indenture") between the Company and the Trustee. Capitalized terms herein are
used as defined in the Indenture unless otherwise indicated. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act. The Notes are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture Act for
a statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are general obligations of the Company.
5. Optional Redemption.
The Notes will be redeemable, at the Company's option, in whole or in part, at
any time or from time to time, on or after September 15, 2002 and prior to
maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last address, as it appears in the Security
Register, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
that is prior to the Redemption Date to receive interest due on an Interest
Payment Date), if redeemed during the 12-month period commencing September 15,
of the years set forth below:
Year Redemption
Price
2002 ...................... 105.250%
2003 ...................... 102.625%
2004 and thereafter ....... 100.000%
At any time prior to September 15, 2000, the Company may redeem
up to 35% of the aggregate principal amount of the Notes from the proceeds of
one or more Public Equity Offerings following which a Public Market occurs, at
any time or from time to time in part, at a Redemption Price (expressed as a
percentage of principal amount) of 110.50%, plus accrued interest to the
Redemption Date (subject to the rights of Holders of record on the relevant
Regular Record Date that is prior to the Redemption Date to receive interest due
on an Interest Payment Date); provided that after any such redemption at least
$162.5 million aggregate principal amount of Notes remains outstanding.
Notes in original denominations larger than $1,000 may be
redeemed in part. On and after the Redemption Date, interest ceases to accrue on
Notes or portions of Notes called for redemption, unless the Company defaults in
the payment of the Redemption Price.
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6. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations
of $1,000 of principal amount and multiples of $1,000 in excess thereof. A
Holder may register the transfer or exchange of Notes in accordance with the
Indenture. The Registrar may require a Holder, 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 register
the transfer or exchange of any Notes selected for redemption. Also, it need not
register the transfer or exchange of any Notes for a period of 15 days before
the day of mailing of a notice of redemption of Notes selected for redemption.
7. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for all
purposes.
8. Unclaimed Money.
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After that, Holders
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.
9. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest on the Notes (a) to redemption or maturity, the
Company will be discharged from the Indenture and the Notes, except in certain
circumstances for certain sections thereof, and (b) to the Stated Maturity, the
Company will be discharged from certain covenants set forth in the Indenture.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing default or
compliance with any provision may be waived with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding. Without
notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not materially
and adversely affect the rights of any Holder.
11. Successor Persons.
When a successor person or other entity assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
12. Defaults and Remedies.
The following events constitute "Events of Default" under the
Indenture: (a) default in the payment of principal of (or premium, if any, on)
any Note when the same becomes
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due and payable at maturity, upon acceleration, redemption or otherwise; (b)
default in the payment of interest on any Note when the same becomes due and
payable, and such default continues for a period of 30 days; provided that a
failure to make any of the first six scheduled interest payments on the Notes on
the applicable Interest Payment Date will constitute an Event of Default with no
grace or cure period; (c) default in the performance or breach of Section
3.01(c) of the Indenture or the failure to make or consummate an Offer to
Purchase in accordance with Section 4.20 of the Indenture; (d) default in the
performance of or breach of Section 4.02 or Section 4.15 or any other covenant
or agreement of the Company in the Indenture or under the Notes relating to
certain of the Company's obligations to the Trustee (other than a default
specified in clause (a), (b) or (c) above), and such default or breach continues
for a period of 30 consecutive days after written notice by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding; (e) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any Significant Subsidiary in
an involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, (B) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Company or
any Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; (f) the Company or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors; or (g) the Pledge Agreement shall cease
to be in full force and effect or enforceable in accordance with its terms,
other than in accordance with its terms.
If an Event of Default, as defined in the Indenture, occurs and
is continuing, the Trustee may, and at the direction of the Holders of at least
25% in aggregate principal amount of the Notes then outstanding shall, declare
all the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Company occurs and is continuing, the Notes automatically become
due and payable. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of at least a majority in principal amount of the Notes then outstanding
may direct the Trustee in its exercise of any trust or power.
13. Collateral.
The payment of principal, interest and premium on the Notes will
be secured by the Pledged Securities, in accordance with the provisions of the
Pledge Agreement, until the first six scheduled interest payments on the Notes
are made. Once the first six scheduled interest payments are made, the Notes
will be unsecured.
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14. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
15. No Recourse Against Others.
No incorporator or any past, present or future partner, stockholder,
other equity holder, officer, director, employee or controlling person as such,
of the Company or of any successor Person shall have any liability for any
obligations of the Company under the Pledge Agreement, the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
16. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
17. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish a copy of the Indenture to any Holder upon
written request and without charge. Requests may be made to BTI Telecom Corp.,
BTI Corporate Center, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
Attention: Chief Financial Officer.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
________________________________
________________________________
________________________________
________________________________
(Please print or typewrite name and address
including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________ attorney to transfer said Note on the books of
the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
PERMANENT OFFSHORE GLOBAL NOTES AND
PERMANENT OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) September 22, 1999, the undersigned confirms that
without utilizing any general solicitation or general advertising that:
[Check One]
[_] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933 provided by Rule 144A
thereunder. or
[_] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other
Registrar shall not be obligated to register this Note in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.08 of the Indenture
shall have been satisfied.
Date: _________________________ ________________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:_________________________ ____________________________________
NOTICE: To be executed by an
executive officer
-9-
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.20 of the Indenture, check the Box: [_]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.20 of the Indenture, state the amount: $________________.
Date: _________________
Your Signature: ________________________________________________________________
(Sign exactly as your name appears on the other side of this
Note)
Signature Guarantee: ______________________________
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