SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 4, 1996
VANGUARD CELLULAR SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
North Carolina 0-16560 56-1549590
(State or other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
2002 Pisgah Church Road, Suite 300, Greensboro, NC 27455
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (910) 282-3690
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
This report is being filed to provide the following exhibits:
1 Underwriting Agreement.
4 Form of Supplemental Indenture.
5 Opinion of Schell Bray Aycock Abel & Livingston L.L.P. as to
legality of Senior Debentures.
12 Calculation of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
- 2 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
VANGUARD CELLULAR SYSTEMS, INC.
By: /s/ Richard C. Rowlenson
Richard C. Rowlenson
Senior Vice President
Date: April 4, 1996
- 3 -
<PAGE>
EXECUTION COPY
Vanguard Cellular Systems, Inc.
$200,000,000 9 3/8% Senior Debentures Due 2006
Underwriting Agreement
New York, New York
April 3, 1996
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Vanguard Cellular Systems, Inc., a North Carolina
corporation (the "Company"), proposes to sell to the
underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are
acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture dated as of
April 1, 1996 (as supplemented by the supplemental indenture
dated as of April 1, 1996 the "Indenture"), between the
Company and The Bank of New York, as trustee (the
"Trustee"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives",
as used herein, shall each be deemed to refer to such firm
or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Under-
writer as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a
Delayed Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for
the use of Form S-3 under the Securities Act of
PAGE
<PAGE>
2
1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a
registration statement (the file number of which
is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration
under the Act of the offering and sale of the
Securities. The Company may have filed one or
more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has
previously been furnished to you. Such registra-
tion statement, as so amended, has become effec-
tive. The offering of the Securities is a Delayed
Offering and, although the Basic Prospectus may
not include all the information with respect to
the Securities and the offering thereof required
by the Act and the rules thereunder to be included
in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act
and the rules thereunder to be included therein as
of the Effective Date. The Company will next file
with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of
prospectus included in such registration statement
relating to the Securities and the offering
thereof. As filed, such final prospectus supple-
ment shall include all required information with
respect to the Securities and the offering thereof
and, except to the extent the Representatives
shall agree in writing to a modification, shall be
in all substantive respects in the form furnished
to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall
contain only such specific additional information
and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Pro-
spectus) as the Company has advised you, prior to
the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for
the use of Form S-3 under the Act and has filed
with the Commission a registration statement (the
file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospec-
tus, for registration under the Act of the offer-
ing and sale of the Securities. The Company may
have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of
PAGE
<PAGE>
3
which has previously been furnished to you. The
Company will next file with the Commission either
(x) a final prospectus supplement relating to the
Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effective-
ness of such registration statement, an amendment
to such registration statement, including the form
of final prospectus supplement. In the case of
clause (x), the Company has included in such
registration statement, as amended at the Effec-
tive Date, all information (other than Rule 430A
Information) required by the Act and the rules
thereunder to be included in the Final Prospectus
with respect to the Securities and the offering
thereof. As filed, such final prospectus supple-
ment or such amendment and form of final prospec-
tus supplement shall contain all Rule 430A Infor-
mation, together with all other such required
information, with respect to the Securities and
the offering thereof and, except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive respects
in the form furnished to you prior to the Execu-
tion Time or, to the extent not completed at the
Execution Time, shall contain only such specific
additional information and other changes (beyond
that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus is
first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Pro-
spectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements
of the Act, the Securities Exchange Act of 1934 (the
"Exchange Act") and the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or neces-
sary in order to make the statements therein not
misleading; on the Effective Date and on the Closing
Date the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture
PAGE
<PAGE>
4
Act and the rules thereunder; and, on the Effective
Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing
Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue
statement of a material fact or omit to state a mate-
rial fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
the Company makes no representations or warranties as
to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion
in the Registration Statement or the Final Prospectus
(or any supplement thereto).
(c) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term
"the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment
or amendments thereto became or become effective and
each date after the date hereof on which a document
incorporated by reference in the Registration Statement
is filed. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by
the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained
in the Registration Statement at the Effective Date
including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final
Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior
to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed
Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus
relating to the Securities, including the Basic
PAGE
<PAGE>
5
Prospectus, included in the Registration Statement at
the Effective Date. "Registration Statement" shall
mean the registration statement referred to in
paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution
Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any
Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Regulation S-
K" refer to such rules or regulation under the Act.
"Rule 430A Information" means information with respect
to the Securities and the offering thereof permitted to
be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. Any reference
herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under
the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. If the Company
files a registration statement to register a portion of
the Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration
Statement"), then any reference to the "Registration
Statement" shall be deemed to refer to both the
registration statement referred to above (and
identified on Schedule I hereto) and the Rule 462
Registration Statement, in each case as amended from
time to time. A "Non-Delayed Offering" shall mean an
PAGE
<PAGE>
6
offering of securities which is intended to commence
promptly after the effective date of a registration
statement, with the result that, pursuant to Rules 415
and 430A, all information (other than Rule 430A
Information) with respect to the securities so offered
must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall
mean an offering of securities pursuant to Rule 415
which does not commence promptly after the effective
date of a registration statement, with the result that
only information required pursuant to Rule 415 need be
included in such registration statement at the
effective date thereof with respect to the securities
so offered. Whether the offering of the Securities is
a Non-Delayed Offering or a Delayed Offering shall be
set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and war-
ranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as
set forth in Schedule II hereto less the respective amounts
of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Secur-
ities to be purchased pursuant to Delayed Delivery Contracts
as hereinafter provided are herein called "Contract Securi-
ties".
If so provided in Schedule I hereto, the Under-
writers are authorized to solicit offers to purchase Secu-
rities from the Company pursuant to delayed delivery con-
tracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as
the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation
therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal
amount of the Securities for which Delayed Delivery Con-
tracts are made. Delayed Delivery Contracts are to be with
PAGE
<PAGE>
7
institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The
Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except
as the Company may otherwise agree, each such Delayed
Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto and the
aggregate principal amount of Contract Securities may not
exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Secu-
rities to be purchased by each Underwriter as set forth in
Schedule II hereto shall be reduced by an amount which shall
bear the same proportion to the total principal amount of
Contract Securities as the principal amount of Securities
set forth opposite the name of such Underwriter bears to the
aggregate principal amount set forth in Schedule II hereto,
except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total prin-
cipal amount of Securities to be purchased by all Under-
writers shall be the aggregate principal amount set forth in
Schedule II hereto less the aggregate principal amount of
Contract Securities.
3. Delivery and Payment. Delivery of and payment
for the Underwriters' Securities shall be made on the date
and at the time specified in Schedule I hereto, which date
and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8
hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of
the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by a
New York Clearing House bank and payable in immediately
available funds. Delivery of the Underwriters' Securities
shall be made at such location as the Representatives shall
reasonably designate at least one business day in advance of
the Closing Date and payment for the Securities shall be
made at the office specified in Schedule I hereto.
Certificates for the Underwriters' Securities shall be
PAGE
<PAGE>
8
registered in such names and in such denominations as the
Representatives may request not less than two full business
days in advance of the Closing Date.
The Company agrees to have the Underwriters'
Securities available for inspection, checking and packaging
by the Representatives in New York, New York, not later than
1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to
cause the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, to
become effective. Prior to the termination of the
offering of the Securities, the Company will not file
any amendment of the Registration Statement or supple-
ment (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the
Final Prospectus, properly completed, and any supple-
ment thereto to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence
satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Repre-
sentatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the
Final Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to
Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Regis-
tration Statement shall have been filed or become
effective, (iv) of any request by the Commission for
any amendment of the Registration Statement or supple-
ment to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement or the institution or threaten-
ing of any proceeding for that purpose and (vi) of the
receipt by the Company of any notification with respect
to the suspension of the qualification of the Securi-
ties for sale in any jurisdiction or the initiation or
PAGE
<PAGE>
9
threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to
the Securities is required to be delivered under the
Act, any event occurs as a result of which the Final
Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state
any material fact necessary to make the statements
therein in the light of the circumstances under which
they were made not misleading, or if it shall be neces-
sary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the
Company promptly will (i) prepare and file with the
Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which
will correct such statement or omission or effect such
compliance and (ii) supply any supplemented Prospectus
to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of
the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158
under the Act.
(d) The Company will furnish to the Representa-
tives and counsel for the Underwriters, without charge,
copies of the Registration Statement as they may
reasonably request (including exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of
any Preliminary Final Prospectus and the Final Prospec-
tus and any supplement thereto as the Representatives
may reasonably request. The Company will pay the
expenses of printing or other production of the
Registration Statement of the Company on
Form S-3 filed on July 25, 1995 and any amendments and
exhibits thereto, the Prospectus dated October 4, 1995
and any amendments, supplements or exhibits thereto
including any post-effective amendments thereof and any
other documents for which professional printer's
expenses were incurred.
PAGE
<PAGE>
10
(e) The Company will arrange for the qualifica-
tion of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate,
will maintain such qualifications in effect so long as
required for the distribution of the Securities, will
arrange for the determination of the legality of the
Securities for purchase by institutional investors and
will pay the filing fee of the National Association of
Securities Dealers, Inc. (the "NASD"), in connection
with its review of the offering.
(f) Until the business date set forth on Sched-
ule I hereto, the Company will not, without the consent
of the Representatives, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly,
or announce the offering of, any debt securities issued
or guaranteed by the Company (other than the Securi-
ties).
(g) The Company confirms as of the date hereof
that it is in compliance with all provisions of
Section 1 of Laws of Florida, Chapter 92-198,
Section 517.075, An Act Relating to Disclosure of Doing
Business with Cuba, and the Company further agrees that
if it commences engaging in business with the
government of Cuba or with any person or affiliate
located in Cuba after the date the Registration
Statement becomes or has become effective with the
Commission or with the Florida Department of Banking
and Finance (the "Department"), whichever date is
later, or if the information reported in the
Prospectus, if any, concerning the Company's business
with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will
provide the Department notice of such business or
change, as appropriate, in a form acceptable to the
Department.
5. Conditions to the Obligations of the Under-
writers. The obligations of the Underwriters to purchase
the Underwriters' Securities shall be subject to the accu-
racy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and
the Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions
PAGE
<PAGE>
11
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 12:00 Noon on the
business day following the day on which the public
offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required
by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have furnished to the
Representatives the opinion of Richard C. Rowlenson,
Esq., Senior Vice President and General Counsel,
counsel for the Company, dated the Closing Date, to the
effect that:
(i) each of the Company, and the subsidiaries
that are corporations named in Schedule IV hereto
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power
and authority to own its properties and conduct
its business as described in the Final Prospectus,
and is duly qualified to do business as a foreign
corporation and is in good standing under the laws
of each jurisdiction wherein it owns or leases
material properties or conducts material business
so as to require such qualification other than
where the failure to be so qualified or in good
standing would not have a material adverse effect
on the Company and its Subsidiaries taken as a
whole; and each of the partnerships named in
Schedule IV hereto (each a "General Partnership"
PAGE
<PAGE>
12
and collectively the "General Partnerships") has
been properly established and is validly existing
as a general partnership under the laws of the
jurisdiction in which it is organized;
(ii) all the outstanding shares of capital
stock of each Subsidiary have been duly and
validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set
forth in Schedule IV of this Agreement, all
outstanding shares of capital stock of the
Subsidiaries and ownership interest in the General
Partnerships are owned by the Company either
directly or through wholly owned subsidiaries and,
to the knowledge of such counsel, are free and
clear of any perfected security interest and, to
the knowledge of such counsel, after due inquiry
of Company officers and review of appropriate
corporate agreements, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity
capitalization is as set forth in the Final
Prospectus; the Securities conform to the
description thereof contained in the Final
Prospectus;
(iv) the Indenture has been duly authorized,
executed and delivered, has been duly qualified
under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable
against the Company in accordance with its terms
(subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors'
rights generally from time to time in effect and
subject to general principles of equity, including
principles of commercial reasonableness, good
faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in
equity)); and the Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in
the case of any Contract Securities, will
PAGE
<PAGE>
13
constitute legal, valid and binding obligations of
the Company entitled to the benefits of the
Indenture (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in
effect and subject to general principles of
equity, including principles of commercial
reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a
proceeding at law or in equity));
(v) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental
agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries,
that is required to be disclosed in the
Registration Statement and is not adequately
disclosed in the Final Prospectus and there is no
contract or other document that is required to be
described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, and is
not described or filed as required; and the
statements included or incorporated in the Final
Prospectus describing any legal proceedings or
material contracts or agreements relating to the
Company fairly summarize such matters;
(vi) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company;
(vii) no consent, approval, authorization or
order of any court or governmental agency or body
is required for the consummation of the trans-
actions contemplated herein or in any Delayed
Delivery Contracts, except such as have been
obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of
the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been
obtained;
(viii) neither the execution and delivery of the
Indenture, the issue and sale of the Securities,
nor the consummation of any other of the transac-
PAGE
<PAGE>
14
tions herein contemplated nor the fulfillment of
the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach
or violation of, or constitute a default under the
articles of incorporation or by-laws of the
Company or the terms of any indenture or other
agreement or instrument known to such counsel and
to which the Company or any of its subsidiaries is
a party or bound or any law, judgment, order or
decree known to such counsel to be applicable to
the Company or any of its subsidiaries of any
court, regulatory body, administrative agency,
governmental body or arbitrator having
jurisdiction over the Company or any of its
subsidiaries; and
(ix) no holders of securities of the Company
have rights to the registration of such securities
under the Registration Statement.
(x) the Company and its subsidiaries have
been granted and presently hold the Federal
Communications Commission (the "FCC")
authorizations necessary for the Company and its
subsidiaries to conduct their respective
businesses as presently conducted or proposed to
be conducted; to the knowledge of such counsel
such FCC authorizations are in full force and
effect; and to the knowledge of such counsel,
except as set forth in a schedule to such opinion,
no proceedings to revoke such FCC authorizations
are pending or threatened;
(xi) to the knowledge of such counsel after
due inquiry of Company officers and review of
appropriate corporate agreements, such counsel is
of the opinion that the Company and its
subsidiaries are not, nor with the passage of time
or the giving of notice or both would be, in
violation of any judgment, injunction, order or
decree of the FCC relating specifically to the
Company or its subsidiaries or to any properties
of the Company or its subsidiaries;
(xii) the execution and delivery of this
Agreement and the issuance and sale of Securities
by the Company, and the performance by the Company
of its obligations under this Agreement and the
PAGE
<PAGE>
15
Securities, do not violate the Communications Act
of 1934, as amended, or any rules or the
regulation thereunder binding on the Company or
its subsidiaries or any order, writ, judgment,
injunction, decree or award of the FCC binding on
the Company or its subsidiaries of which such
counsel has knowledge after due inquiry;
(xiii) there is no proceeding or investigation
pending before the FCC, or, to the knowledge of
such counsel, any investigation pending or
threatened by the FCC against the Company or its
subsidiaries which, if adversely determined, could
have a material adverse effect on the Company and
its subsidiaries taken as a whole;
(xiv) the execution, delivery and performance
of this Agreement does not constitute the transfer
or assignment, directly or indirectly, of any
license or permit existing as of the Closing Date
issued by the FCC in connection with the
operations of the Company or its subsidiaries or
the transfer of control of the Company or its
subsidiaries within the meaning of Section 310(d)
of the Communications Act of 1934, as amended; and
(xv) to the extent they constitute matters of
law, the statements in the Prospectus under the
headings "Business--Regulation of Cellular
Systems," "Business--Cellular Telephone
Technology," "Business--Competition," "Certain
Risk Factors--Competition" and "Certain Risk
Factors--Regulation of the Cellular Industry"
fairly summarize the matters therein described.
Such counsel may limit such opinion to matters of
existing corporation laws of the states of Delaware,
Virginia and West Virginia, the existing partnership
laws of Delaware, Maryland, Pennsylvania and the
District of Columbia and the existing laws of the State
of North Carolina and the United States of America. In
rendering such opinion, such counsel may rely as to
matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and
public officials. References to the Final Prospectus
in this paragraph (b) include any supplements thereto
at the Closing Date.
PAGE
<PAGE>
16
Such counsel shall also state that he has no reason to
believe that at the Effective Date the Registration
Statement contained any untrue statement of a material
fact or omitted to state any material fact required to
be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) The Company shall have furnished to the
Representatives the opinion of Schell Bray Aycock
Abel & Livingston L.L.P., counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of North
Carolina, with full corporate power and authority
to own its properties and conduct its business as
described in the Final Prospectus;
(ii) the Company's authorized equity capital-
ization is as set forth in the Final Prospectus;
the Securities conform to the description thereof
contained in the Final Prospectus;
(iii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified
under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable
against the Company in accordance with its terms
(subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors'
rights generally from time to time in effect and
subject to general principles of equity, including
principles of commercial reasonableness, good
faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in
equity)); and the Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in
PAGE
<PAGE>
17
the case of any Contract Securities, will
constitute legal, valid and binding obligations of
the Company entitled to the benefits of the
Indenture (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in
effect and subject to general principles of
equity, including principles of commercial
reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a
proceeding at law or in equity));
(iv) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental
agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries,
that is required to be disclosed in the
Registration Statement and is not adequately
disclosed in the Final Prospectus and there is no
contract or other document that is required to be
described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, and is
not described or filed as required;
(v) the Registration Statement has become
effective under the Act; any required filing of
the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period
required by Rule 424(b); to the best knowledge of
such counsel, no stop order suspending the effec-
tiveness of the Registration Statement has been
issued, no proceedings for that purpose have been
instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the
financial statements and other financial and
statistical information contained therein as to
which such counsel need express no opinion) comply
as to form in all material respects with the
applicable requirements of the Act, the Exchange
Act and the Trust Indenture Act and the respective
rules thereunder;
PAGE
<PAGE>
18
(vi) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company; and
(vii) neither the execution and delivery of the
Indenture, the issue and sale of the Securities,
nor the consummation of any other of the transac-
tions herein contemplated nor the fulfillment of
the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach
or violation of, or constitute a default under the
articles of incorporation or by-laws of the
Company or the terms of any indenture or other
agreement or instrument known to such counsel and
to which the Company or any of its subsidiaries is
a party or bound or any law, judgment, order or
decree known to such counsel to be applicable to
the Company or any of its subsidiaries of any
court, regulatory body, administrative agency,
governmental body or arbitrator having
jurisdiction over the Company or any of its
subsidiaries.
Such counsel may limit such opinion to matters of the
existing laws of the State of North Carolina and of the
United States of America, and such opinion may exclude
all matters relating to the Communications Act of 1934,
as amended, and the rules and regulations promulgated
by the FCC. In rendering such opinion, such counsel
may rely as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the
Company and public officials.
Such counsel shall state that it has no reason to
believe that at the Effective Date the Registration
Statement contained any untrue statement of a material
fact or omitted to state any material fact required to
be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
Such counsel may also state that although they have
made certain inquiries and investigations in connection
with the preparation of the Registration Statement and
the Prospectus, the limitations inherent in the role of
PAGE
<PAGE>
19
outside counsel are such that they cannot and do not
assume responsibility for the accuracy or completeness
of the statements made in the Registration Statement
and Prospectus, except insofar as such statements
relate to them and except to the extent set forth in
paragraph (ii) above.
(d) The Representatives shall have received from
Cravath, Swaine & Moore, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Regis-
tration Statement, the Final Prospectus (together with
any supplement thereto) and other related matters as
the Representatives may reasonably require, and the
Company shall have furnished to such counsel such
documents as they request for the purpose of enabling
them to pass upon such matters.
(e) The Company shall have furnished to the
Representatives a certificate of the Company, signed by
the Chairman of the Board or the President and the
principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in
all material respects on and as of the Closing
Date with the same effect as if made on the
Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the effective-
ness of the Registration Statement has been issued
and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threat-
ened; and
(iii) since the date of the most recent finan-
cial statements included in the Final Prospectus
(exclusive of any supplement thereto), there has
been no material adverse change in the condition
PAGE
<PAGE>
20
(financial or other), earnings, business or
properties of the Company and its subsidiaries,
whether or not arising from transactions in the
ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclu-
sive of any supplement thereto).
(f) At the Closing Date, Arthur Andersen LLP
shall have furnished to the Representatives a letter or
letters (which may refer to letters previously
delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satis-
factory to the Representatives, confirming that they
are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating
in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules
included or incorporated in the Registration
Statement and the Final Prospectus and reported on
by them comply in form in all material respects
with the applicable accounting requirements of the
Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by
the Company and its subsidiaries; carrying out
certain specified procedures (but not an examina-
tion in accordance with generally accepted audit-
ing standards) which would not necessarily reveal
matters of significance with respect to the
comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders,
directors and finance, compensation and audit
committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company
who have responsibility for financial and account-
ing matters of the Company and its subsidiaries as
to transactions and events subsequent to the date
of the most recent audited financial statements in
or incorporated in the Final Prospectus, nothing
PAGE
<PAGE>
21
came to their attention which caused them to
believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not
comply in form in all material respects with
applicable accounting requirements and with
the published rules and regulations of the
Commission with respect to financial state-
ments included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act;
and said unaudited financial statements are
not in conformity with generally accepted
accounting principles applied on a basis
substantially consistent with that of the
audited financial statements included or
incorporated in the Registration Statement
and the Final Prospectus;
(2) with respect to the period
subsequent to the date of the most recent
financial statements (other than any capsule
information), audited or unaudited, in or
incorporated in the Registration Statement
and the Final Prospectus, there were any
changes, at a specified date not more than
five business days prior to the date of the
letter, in the Long-Term Debt of the Company
and its subsidiaries or decreases in the
Total Shareholders' Equity of the Company as
compared with the amounts shown on the most
recent consolidated balance sheet included or
incorporated in the Registration Statement
and the Final Prospectus, or for the period
from the date of the most recent financial
statements included or incorporated in the
Registration Statement and the Final Pro-
spectus to such specified date there were any
decreases, as compared with the corresponding
period in the preceding year in Service
Revenue, Cellular Telephone Equipment
Revenue, Other Revenue, Income from
Operations or increases in Net Loss, except
in all instances for changes or decreases set
forth in such letter, in which case the
letter shall be accompanied by an explanation
by the Company as to the significance thereof
PAGE
<PAGE>
22
unless said explanation is not deemed
necessary by the Representatives; or
(3) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statement
and the Final Prospectus do not agree with
the amounts set forth in the unaudited
financial statements for the same periods or
were not determined on a basis substantially
consistent with that of the corresponding
amounts in the audited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus in
conformity with generally accepted accounting
principles or;
(4) the information included in the
Registration Statement and Final Prospectus
in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302
(Supplementary Financial Information) and
Item 402 (Executive Compensation), and
Item 503 (Ratio of Earnings to Fixed Charges)
is not in conformity with the applicable
disclosure requirements of Regulation S-K;
(iii) they have performed certain other speci-
fied procedures as a result of which they deter-
mined that certain information of an accounting,
financial or statistical nature (which is limited
to accounting, financial or statistical informa-
tion derived from the general accounting records
of the Company and its subsidiaries) set forth in
the Registration Statement and the Final
Prospectus, including the information included or
incorporated in Item 14 of the Company's Annual
Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the
information included in the "Management's Discus-
sion and Analysis of Financial Condition and
Results of Operations" included or incorporated in
the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries,
excluding any questions of legal interpretation;
and
PAGE
<PAGE>
23
(iv) if unaudited pro forma financial
statements are included or incorporated in the
Registration Statement and the Final Prospectus,
on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain
specified procedures, inquiries of certain
officials of the Company and the acquired company
who have responsibility for financial and
accounting matters, and proving the arithmetic
accuracy of the application of the pro forma
adjustments to the historical amounts in the pro
forma financial statements, nothing came to their
attention which caused them to believe that the
pro forma financial statements do not comply in
form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regula-
tion S-X or that the pro forma adjustments have
not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Prospectus in this para-
graph (f) include any supplement thereto at the date of the
letter.
In addition, except as provided in Schedule I
hereto, at the Execution Time, Arthur Andersen LLP shall
have furnished to the Representatives a letter or letters,
dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth
above.
(g) Subsequent to the Execution Time or, if
earlier, the dates as of which information is given in
the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters
referred to in paragraph (f) of this Section 5 or
(ii) any change, or any development involving a
prospective change, in or affecting the business or
properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of the Representa-
tives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment
PAGE
<PAGE>
24
thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(h) Subsequent to the Execution Time, there shall
not have been any decrease in the rating of any of the
Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such
rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall
have furnished to the Representatives such further
information, certificates and documents as the Repre-
sentatives may reasonably request.
(j) The Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been
approved by the Company.
If any of the conditions specified in this Sec-
tion 5 shall not have been fulfilled in all material re-
spects when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Repre-
sentatives and counsel for the Underwriters, this Agreement
and all obligations of the Underwriters hereunder may be
canceled at, or at any time prior to, the Closing Date by
the Representatives. Notice of such cancellation shall be
given to the Company in writing or by telephone or telegraph
confirmed in writing.
The documents required to be delivered by this
Section 5 shall be delivered at the office of Cravath,
Swaine & Moore, counsel for the Underwriters, at Worldwide
Plaza, 825 Eighth Avenue, New York, New York, on the Closing
Date.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not con-
summated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company to perform, in any material respect, any
PAGE
<PAGE>
25
agreement herein or comply with any provision hereof other
than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase
and sale of the Securities.
7. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each Under-
writer, the directors, officers and employees of each
Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or other-
wise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for
the registration of the Securities as originally filed or in
any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as in-
curred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives
specifically for inclusion therein, and provided further
with respect to any untrue statement or omission of a
material fact made in any Preliminary Final Prospectus, the
indemnity agreement contained in this Section 7(a) shall not
inure to the benefit of any Underwriter (or any of the
directors, officers and employees of such Underwriter or any
controlling person of such Underwriter) from whom the person
asserting any such loss, claim, damage or liability
purchased the Securities concerned, to the extent that any
PAGE
<PAGE>
26
such loss, claim, damage or liability of such Underwriter
occurs under the circumstances where it shall have been
determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously
furnished copies of the Final Prospectus to the
Representatives, (x) delivery of the Final Prospectus was
required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in
the Preliminary Final Prospectus was corrected in the Final
Prospectus and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale
of such Securities to such person, a copy of the Final
Prospectus. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indem-
nify and hold harmless the Company, each of its directors,
each of its officers who signs the Registration Statement,
and each person who controls the Company within the meaning
of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Under-
writer, but only with reference to written information
relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be
in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the state-
ments set forth in the last paragraph of the cover page of
the Final Prospectus, under the heading "Underwriting" or
"Plan of Distribution" and, if Schedule I hereto provides
for sales of Securities pursuant to delayed delivery
arrangements, in the last sentence under the heading
"Delayed Delivery Arrangements" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the Representa-
tives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of
any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writ-
ing of the commencement thereof; but the failure so to
notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the
PAGE
<PAGE>
27
extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemni-
fying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indem-
nified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to repre-
sent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such
action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are
different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified par-
ties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnifica-
tion or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemni-
fied party from all liability arising out of such claim,
action, suit or proceeding.
PAGE
<PAGE>
28
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters agree to contribute
to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in
connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more
of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the
Company and by the Underwriters from the offering of the
Securities; provided, however, that in no case shall (i) any
Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securi-
ties) be responsible for any amount in excess of the under-
writing discount or commission applicable to the Securities
purchased by such Underwriter hereunder or (ii) Salomon
Brothers Inc in its capacity as "qualified independent
underwriter" (within the meaning of Schedule E to the NASD's
By-laws) be responsible for any amount in excess of such
compensation received by Salomon Brothers Inc for acting in
such capacity. If the allocation provided by the
immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters shall contribute in
such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company
and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final
Prospectus. Benefits received by Salomon Brothers Inc in
its capacity as "qualified independent underwriter" shall be
deemed to be equal to the compensation received by Salomon
Brothers Inc for acting in such capacity. Relative fault
shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided
by the Company or the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation or
any other method of allocation which does not take account
of the equitable considerations referred to above. Notwith-
standing the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to
PAGE
<PAGE>
29
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each
director, officer and employee of an Underwriter shall have
the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) Without limitation and in addition to its
obligations under the other paragraphs of this Section 7,
the Company agrees to indemnify and hold harmless Salomon
Brothers Inc, its directors, officers and employees and each
person who controls Salomon Brothers Inc within the meaning
of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject, insofar as
such losses, claims, damages or liabilities (or action in
respect thereof) arise out of or are based upon Salomon
Brothers Inc's acting as a "qualified independent
underwriter" in connection with the offering contemplated by
this Agreement, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company
will not be liable in any such case to the extent that any
such loss, claim, damage or liability results from the gross
negligence or willful misconduct of Salomon Brothers Inc.
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to
the aggregate amount of Securities set forth opposite the
names of all the remaining Underwriters) the Securities
which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting
PAGE
<PAGE>
30
Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability
to any nondefaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any
other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject
to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if prior to such
time (i) trading in the Company's Common Stock shall have
been suspended by the Nasdaq Stock Market's National Market
or trading in securities generally on the New York Stock
Exchange or the Nasdaq Stock Market's National Market shall
have been suspended or limited or minimum prices shall have
been established on such Exchange or Market, (ii) a banking
moratorium shall have been declared either by Federal or New
York State authorities or (iii) there shall have occurred
any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets
is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed
with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any
supplement thereto).
10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties,
indemnities and other statements of the Company or its
officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7
PAGE
<PAGE>
31
hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will
be in writing and effective only on receipt, and, if sent to
the Representatives, will be mailed, delivered or tele-
graphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at
2002 Pisgah Church Road, Suite 300, Greensboro, North
Carolina 27455, attention Richard C. Rowlenson, Senior Vice
President and General Counsel.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York.
PAGE
<PAGE>
32
If the foregoing is in accordance with your under-
standing of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
VANGUARD CELLULAR SYSTEMS,
INC.
By: /s/ Haynes G. Griffin
Name: Haynes G. Griffin
Title: President and Chief
Executive Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Salomon Brothers Inc
Goldman, Sachs & Co.
NationsBanc Capital Markets Inc.
Smith Barney Inc.
Toronto Dominion Securities (USA) Inc.
By: SALOMON BROTHERS INC
By: /s/ Edward P. Biggins
Name: Edward P. Biggins
Title: Associate
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
PAGE
<PAGE>
33
SCHEDULE I
Underwriting Agreement dated April 3, 1996
Type of Offering: Delayed Offering
Registration Statement No. 33-61295
Representatives: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
NationsBanc Capital Markets Inc.
100 North Tryon Street 7th Floor
Charlotte, North Carolina 28255
Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
Toronto Dominion Securities (USA) Inc.
31 West 52nd Street
New York, New York 10019
Closing Date, Time and Location: April 10, 1996,
11:00 a.m., at the offices of Cravath, Swaine & Moore,
Worldwide Plaza, 825 Eighth Avenue, New York, New York
Sale, Purchase Price and Description of Purchased Debt
Securities:
Title: 9 3/8% Senior Debentures due 2006
Principal amount and currency: U.S. $200,000,000
Purchase price: 97.401% of principal amount, plus
accrued interest, if any, from April 10, 1996
Interest rate: 9 3/8%
Interest payment dates: Semiannually on October 15 and
April 15, commencing October 15, 1996
PAGE
<PAGE>
34
Maturity: April 15, 2006
Sinking fund provisions: None
Redemption provisions: Redeemable at the option of the
Company, in whole or in part, at any time on or after
April 15, 2001 at the purchase prices set forth in the Final
Prospectus
Bearer or registered: Registered book-entry form in
denominations of $1,000 and any integral multiple of $1,000
Other provisions: As set forth in the Prospectus
Supplement dated April 3, 1996
Date referred to in Section 4(f) after which the Company may
offer or sell debt securities issued or guaranteed by the
Company without the consent of the Representatives:
The earlier of the (i) Effective Date plus 30 days
or (ii) failure to consummate the transactions contemplated
by the Underwriting Agreement
PAGE
<PAGE>
35
SCHEDULE II
Underwriter Principal amount of
Purchased Securities
Salomon Brothers Inc . . . . . . $100,000,000
Goldman, Sachs & Co. . . . . . . 50,000,000
NationsBanc Capital
Markets Inc. . . . . . . . . . 15,000,000
Smith Barney Inc. . . . . . . . 20,000,000
Toronto Dominion Securities
(USA) Inc. . . . . . . . . . . 15,000,000
Total . . . . . . . . . . . . . $200,000,000
PAGE
<PAGE>
36
SCHEDULE III
* Intentionally Omitted *
<PAGE>
SCHEDULE IV
<TABLE>
<CAPTION>
Percentage Direct Or Jurisdiction
Indirect Ownership of
Subsidiary or General Partnership Type of Entity By Company Organization Cellular Licenses Owned
<S> <C> <C> <C> <C>
*Altoona CellTelCo General Partnership 100% DC Altoona, PA MSA
*Atlantic Cellular Telephone Corp. Corporation 100% NC Portland, ME MSA and
ME-4 RSA
*Binghamton Cellular Telephone Corp. Corporation 100% NC
*Binghamton CellTelCo General Partnership 100% DE Binghamton, NY, PA MSA
*Cellular Directory Corporation Corporation 100% NC
*Eastern North Carolina Cellular Joint Venture General Partnership 50% DE
**GTE Mobilnet of Jacksonville Incorporated Corporation 50% NC
**GTE Mobilnet of Jacksonville II Incorporated Corporation 47.34% NC Jacksonville, NC, MSA
**GTE Mobilnet of Wilmington Incorporated Corporation 50%
**GTE Mobilnet of Wilmington II Corporation 47.67% NC Wilmington, NC, MSA
*Harrisburg Cellular Telephone Company General Partnership 100% PA Harrisburg, PA MSA
**Jacksonville Cellular Partnership General Partnership 47.3% NC
*North Carolina Cellular Holding Corp. Corporation 100% NC
*Orange County Cellular Telephone Corp. Corporation 100% NC Orange County, NY MSA
*PA 10-East Partnership General Partnership 91.84% MD PA-10 East, RSA
*Pennsylvania Cellular Telephone Corp. Corporation 100% NC Allentown, PA/NJ;
Northeast Pennsylvania,
PA; Lancaster, PA;
York, PA; and Reading
PA MSAs and PA-5;
PA-11; PA-12; and PA-8
RSAs
*Piscataqua Cellular Telephone Corp. Corporation 100% NC Portsmouth, NH/ME MSA
*PLMRS Narrowband Corp. Corporation 100% NC
*State College CellTelCo General Partnership 96.99% DC State College, PA MSA
*Teleflex Information Systems, Inc. Corporation 100% NC
*Vanguard Binghamton, Inc. Corporation 100% DE Elmira, NY MSA
*Vanguard Cellular Corp. Corporation 100% NC
*Vanguard Cellular Financial Corp. Corporation 100% NC
*Vanguard Cellular Holding Corp. Corporation 100% DE
*Vanguard Cellular Operating Corp. Corporation 100% DE
*Vanguard Cellular Services, Inc. Corporation 100% DE
*Vanguard Cellular Systems of South Carolina, Inc. Corporation 100% NC SC-5 RSA
*Vanguard Communications, Inc. Corporation 100% DE
*Vanguard India, Inc. Corporation 100% DE
*Warren and Lewis, Ltd. Corporation 100% VA
*West Virginia Cellular Telephone Corp. Corporation 100% WV Charleston, WV and
Huntington, WV/OH/KY
MSAs and WV-1 East RSA
*Western Florida Cellular Telephone Corp. Corporation 100% NC Pensacola, FL and Fort
Walton Beach, FL MSAs
*Williamsport Cellular Telephone Company General Partnership 92.98% DE Williamsport, PA MSA
**Wilmington Cellular Partnership General Partnership 47.67% NC
</TABLE>
*The capital stock and partnership interests of these corporate subsidiaries
and general partnerships, respectively, have been pledged as security for the
Company's obligations under the Credit Facility (as defined in the Final
Prospectus).
**The Company's interests in these subsidiaries and general partnerships are
owned directly or indirectly by Eastern North Carolina Cellular Joint Venture.
FIRST SUPPLEMENTAL INDENTURE, dated as
of April , 1996 (the "Supplement"), between
VANGUARD CELLULAR SYSTEMS, INC., a North
Carolina corporation (the "Company"), and THE
BANK OF NEW YORK, a New York banking
corporation (the "Trustee"), as Trustee under
an Indenture, dated as of April , 1996 (the
"Indenture").
RECITALS OF THE COMPANY
The Company has previously executed and delivered
to the Trustee the Indenture. Sections 2.1, 2.2 and 12.1 of
the Indenture provide, among other things, that the Company,
when authorized by its Board of Directors, and the Trustee
may at any time and from time to time enter into an
indenture supplemental to the Indenture for the purpose of
authorizing a series of Debentures and specifying the terms
and form of each series of Debentures. The Board of
Directors of the Company has duly authorized the creation,
issuance, execution and delivery of a series of Debentures
consisting of the __% Senior Debentures Due 2006 (the "__%
Debentures") in the aggregate principal amount of
$200,000,000. The Company and the Trustee are executing and
delivering this Supplement in order to provide for the __%
Debentures.
All things necessary to make this Supplement a
valid and legally binding agreement of the Company have been
done.
I. ADDITIONAL PROVISIONS RELATING TO THE __% DEBENTURES
The additional terms provided for herein apply
only to the __% Debentures and do not apply to any other
series of Debentures previously issued or to be issued under
the Indenture. Except as otherwise set forth herein, all
provisions of the Indenture apply to the __% Debentures.
1. Provisions Supplemental to Article I of the Indenture.
A. Terms Defined in the Indenture.
All capitalized terms used in this Supplement that
are defined in the Indenture have the meanings assigned to
them in the Indenture, except to the extent that such terms
PAGE
<PAGE>
2
are otherwise defined in this Supplement. To the extent
that a term is defined both in the Indenture and this
Supplement, the definition appearing in this Supplement
shall govern with respect to the __% Debentures.
B. Additional Definitions.
Section 1.1 of the Indenture is hereby
supplemented for purposes of the __% Debentures to provide
additional definitions in the appropriate alphabetical
sequence, as follows:
"Additional Assets" means (i) any Property (other
than cash, cash equivalents or securities) to be owned by
the Company or a Restricted Subsidiary and used in a Related
Business, (ii) the costs of improving or developing any
Property owned by the Company or a Restricted Subsidiary
which is used in a Related Business and (iii) Investments in
any other Person engaged primarily in a Related Business
(including the acquisition from third parties of Capital
Stock of such Person) as a result of which such other Person
becomes a Restricted Subsidiary or is merged or consolidated
with or into the Company or any Restricted Subsidiary.
"Affiliate" of any specified Person means (i) any
other Person, directly or indirectly, controlling or
controlled by or under direct or indirect common control
with such specified Person or (ii) any other Person who is a
director or executive officer (a) of such specified Person,
(b) of any Subsidiary of such specified Person or (c) of any
Person described in clause (i) above. For the purposes of
this definition, "control" when used with respect to any
Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. "Affiliate" shall also mean
any beneficial owner of shares representing 10% or more of
the total voting power of the Voting Stock (on a fully
diluted basis) of the Company or of rights or warrants to
purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any
such beneficial owner pursuant to the first sentence hereof.
"Annualized Pro Forma EBITDA" means, with respect
to any Person, the product of such Person's Pro Forma EBITDA
for the two most recent full fiscal quarters for which
financial statements are available multiplied by two.
PAGE
<PAGE>
3
"Asset Sale" means, with respect to any Person,
any transfer, conveyance, sale, lease or other disposition
(including, without limitation, dispositions pursuant to any
consolidation or merger or a Sale and Leaseback Transaction)
by such Person or any of its Restricted Subsidiaries in any
single transaction or series of transactions of (a) shares
of Capital Stock or other ownership interests in another
Person (including, with respect to the Company and its
Restricted Subsidiaries, Capital Stock of Unrestricted
Subsidiaries) or (b) any other Property of such Person or
any of its Restricted Subsidiaries; provided, however, that
the term "Asset Sale" shall not include: (i) the sale or
transfer of Temporary Cash Investments, inventory, accounts
receivable or other Property in the ordinary course of
business; (ii) the liquidation of Property received in
settlement of debts owing to such Person or any of its
Restricted Subsidiaries as a result of foreclosure,
perfection or enforcement of any Lien or debt, which debts
were owing to such Person or any of its Restricted
Subsidiaries in the ordinary course of business; (iii) when
used with respect to the Company, any asset disposition
permitted pursuant to Section 10.1 which constitutes a
disposition of all or substantially all of the Company's
Property; (iv) the sale or transfer of any Property by such
Person or any of its Restricted Subsidiaries to such Person
or any of its Restricted Subsidiaries; (v) a disposition in
the form of a Restricted Payment permitted to be made
pursuant to Section 4.10 or (vi) a disposition with a Fair
Market Value and a sale price of less than $5 million.
"Attributable Indebtedness" means (i) Indebtedness
deemed to be incurred in respect of a Sale and Leaseback
Transaction and shall be, at the date of determination, the
present value (discounted at the actual rate of interest
implicit in such transaction, compounded annually), of the
total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such
lease has been extended) and (ii) the amount of any
Indebtedness incurred by any special purpose company or
trust in connection with any Permitted Receivables Facility.
"Average Life" means, as of the date of
determination, with respect to any Indebtedness or Preferred
Stock, the quotient obtained by dividing (i) the sum of the
products of the numbers of years (rounded to the nearest
one-twelfth of one year) from the date of determination to
the dates of each successive scheduled principal payment of
PAGE
<PAGE>
4
such Indebtedness or redemption or similar payment with
respect to such Preferred Stock multiplied by the amount of
such payment by (ii) the sum of all such payments.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors,
to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Capital Expenditure Indebtedness" means
Indebtedness Incurred by any Person to finance a capital
expenditure so long as (i) such capital expenditure is or
should be included as an addition to "Property and
Equipment, at cost" in accordance with GAAP, and (ii) such
Indebtedness is Incurred within 180 days of the date such
capital expenditure is made.
"Capital Lease Obligations" means Indebtedness
represented by obligations under a lease that is required to
be capitalized for financial reporting purposes in
accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations
determined in accordance with GAAP. For purposes of
Section 4.11, a Capital Lease Obligation shall be deemed
secured by a Lien on the property being leased.
"Capital Stock" means, with respect to any Person,
any and all shares or other equivalents (however designated)
of corporate stock, partnership interests or any other
participation, right, warrant, option or other interest in
the nature of an equity interest in such Person, but
excluding any debt security convertible or exchangeable into
such equity interest.
"Capital Stock Sale Proceeds" means the aggregate
Net Cash Proceeds received by the Company from the issue or
sale (other than to a Subsidiary or an employee stock
ownership plan or trust established by the Company or any
Subsidiary) by the Company of any class of its Capital Stock
(other than Redeemable Stock) after the Issue Date.
"Change of Control" means the occurrence of any
of the following events: (i) any "person" or "group"
(within the meaning of Sections 13(d)(3) and 14(d)(2) of the
Exchange Act or any successor provision to either of the
foregoing, including any group acting for the purpose of
acquiring, holding or disposing of securities within the
PAGE
<PAGE>
5
meaning of Rule 13d-5(b)(1) under the Exchange Act) other
than one or more of the Permitted Holders is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 40% or more of the
total voting power of the Voting Stock (on a fully diluted
basis) of the Company, (ii) during any period of two
consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company
(together with any new directors whose election by the Board
of Directors of the Company or whose nomination for election
by the shareholders of the Company was approved by a vote of
66 2/3% of the directors of the Company then still in office
who were either directors at the beginning of such period or
whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of
the Board of Directors of the Company then in office,
(iii) the Company consolidates or merges with or into any
other Person (other than one or more Permitted Holders) or
any other Person (other than one or more Permitted Holders)
consolidates or merges with or into the Company, in either
case, other than a consolidation or merger (a) with a Wholly
Owned Subsidiary in which all of the Voting Stock of the
Company outstanding immediately prior to the effectiveness
thereof is changed into or exchanged for substantially the
same consideration or (b) pursuant to a transaction in which
the outstanding Voting Stock of the Company is changed into
or exchanged for cash, securities or other Property with the
effect that the "beneficial owners" (as defined in Rule 13d-
3 under the Exchange Act) of the outstanding Voting Stock
immediately prior to such transaction, beneficially own,
directly or indirectly, more than 50% of the total voting
power of the fully diluted Voting Stock of the Surviving
Corporation immediately following such transaction in
substantially the same proportions as owned prior to such
transaction or (iv) the Company sells, conveys, transfers or
leases, directly or indirectly, all or substantially all of
its assets (other than a transfer of such assets as an
entirety or virtually as an entirety to a Wholly Owned
Subsidiary or one or more Permitted Holders).
"Change of Control Triggering Event" means the
occurrence of both a Change of Control and a Rating Decline
with respect to the __% Debentures.
"Consolidated Interest Expense" means, for any
Person (or in the case of the Company, the Company and its
Restricted Subsidiaries), for any period, the amount of
interest in respect of Indebtedness (including amortization
PAGE
<PAGE>
6
of original issue discount, fees payable in connection with
financings, including commitment, availability and similar
fees, and amortization of debt issuance costs, non-cash
interest payments on any Indebtedness and the interest
portion of any deferred payment obligation and after taking
into account the effect of elections made under, and the net
costs associated with, any Interest Rate Agreement, however
denominated, with respect to such Indebtedness), the amount
of Redeemable Dividends, the amount of Preferred Stock
dividends in respect of all Preferred Stock of Subsidiaries
of such Person held other than by such Person or a
Subsidiary of such Person, commissions, discounts and other
fees and charges owed with respect to letters of credit and
bankers' acceptance financing, and the interest component of
rentals in respect of any Capital Lease Obligation or Sale
and Leaseback Transaction paid, accrued or scheduled to be
paid or accrued by such Person during such period,
determined on a consolidated basis in accordance with GAAP.
For purposes of this definition, interest on a Capital Lease
Obligation or a Sale and Leaseback Transaction shall be
deemed to accrue at an interest rate reasonably determined
by such Person to be the rate of interest implicit in such
Capital Lease Obligation or Sale and Leaseback Transaction
in accordance with GAAP consistently applied.
"Consolidated Net Income" of a Person means for
any period, the net income (loss) of such Person and its
Subsidiaries; provided, however, that there shall not be
included in such Consolidated Net Income (i) with respect to
the Company, any net income (loss) of any Person if such
Person is not a Restricted Subsidiary, except that (a)
subject to the limitations contained in clause (iv) below,
the Company's equity in the net income of any such Person
for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company
or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations
contained in clause (iii) below) and (b) the Company's
equity in a net loss of any such Person (other than an
Unrestricted Subsidiary) for such period shall be included
in determining such Consolidated Net Income, (ii) any net
income (loss) of any Person acquired by such Person or a
Subsidiary of such Person in a pooling of interests
transaction for any period prior to the date of such
acquisition, (iii) with respect to the Company, any net
income (loss) of any Restricted Subsidiary if such
PAGE
<PAGE>
7
Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of
distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that (a) subject to the
limitations contained in clause (iv) below, the Company's
equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash that could have
been distributed by such Restricted Subsidiary during such
period to the Company or another Restricted Subsidiary as a
dividend (subject, in the case of a dividend to another
Restricted Subsidiary, to the limitation contained in this
clause) and (b) the Company's equity in a net loss of any
such Restricted Subsidiary for such period shall be included
in determining such Consolidated Net Income, (iv) any gain
(but not loss) realized upon the sale or other disposition
of any Property of such Person or its consolidated
Subsidiaries (including pursuant to any Sale and Leaseback
Transaction) which is not sold or otherwise disposed of in
the ordinary course of business, (v) any extraordinary gain
or loss and (vi) the cumulative effect of a change in
accounting principles.
Notwithstanding the provisions of clause (iii) in
the proceeding paragraph, in the event that Consolidated Net
Income is being calculated with respect to the Company or
any Surviving Entity (a) for purposes of determining whether
the Company or any Surviving Entity could incur at least
$1.00 of additional Indebtedness pursuant to clause (i) of
Section 4.9(a) for purposes of (i) clause (ii) of the first
sentence of Section 4.10(a), (ii) clause (iv) under
Section 10.01 or (iii) the definition of "Unrestricted
Subsidiary" or (b) for purposes of calculating Cumulative
EBITDA pursuant to clause (iii) of the first sentence of
Section 4.10(a), restrictions on the payment of dividends or
the making of distributions to the Company by Vanguard
Cellular Financial Corp. referred to in clause (1)(iii) of
the second sentence of Section 4.13 shall be disregarded.
Notwithstanding the provisions of clause (iii) in
the first paragraph of this definition, in the event that
Consolidated Net Income is being calculated with respect to
the Company for purposes of determining whether the
Incurrence of Indebtedness proposed to be Incurred is
permissible under clause (i) of Section 4.9(a), then (i) if
such proposed Indebtedness is proposed to be Incurred by
Vanguard Cellular Financial Corp. or any Subsidiary thereof
that is a Restricted Subsidiary, restrictions on the payment
PAGE
<PAGE>
8
of dividends or the making of distributions to the Company
by Vanguard Cellular Financial Corp. referred to in
clause (1)(iii) of the second sentence of Section 4.13 shall
be disregarded and (ii) if such proposed Indebtedness is
proposed to be Incurred by the Company or any Subsidiary of
the Company (other than Vanguard Cellular Financial Corp.
and its Subsidiaries) that is a Restricted Subsidiary,
restrictions on the payment of dividends or the making of
distributions to the Company by Vanguard Cellular Financial
Corp. referred to in clause (1)(iii) of the second sentence
of Section 4.13 shall be disregarded, provided that the
lenders pursuant to the Credit Facility modify the Credit
Facility to allow for the payment of dividends or the making
of distributions to the Company in amounts sufficient to pay
the scheduled principal and interest payments on such
proposed Indebtedness when due and payable or, in the case
of a proposed Incurrence of Indebtedness by a Subsidiary, in
an amount sufficient to fund capital contributions or other
Investments to or in such Subsidiary in amounts sufficient
to pay the scheduled principal and interest payments on such
proposed Indebtedness when due and payable so long as there
does not exist an event which after notice or passage of
time or both would permit the lenders under the Credit
Facility to declare all amounts thereunder due and payable.
"Credit Facility" means the $675 million credit
facility pursuant to the Amended and Restated Loan Agreement
dated as of December 23, 1994 among the Company, various
lenders, and The Toronto-Dominion Bank and The Bank of New
York and any extensions, revisions, refinancings or
replacements thereof by a lender or syndicate of lenders.
"Cumulative EBITDA" means at any date of
determination the cumulative EBITDA of the Company from and
after the last day of the fiscal quarter of the Company
immediately preceding the Issue Date to the end of the
fiscal quarter immediately preceding the date of
determination or, if such cumulative EBITDA for such period
is negative, the amount (expressed as a negative number) by
which such cumulative EBITDA is less than zero.
"Cumulative Interest Expense" means at any date of
determination the aggregate amount of Consolidated Interest
Expense paid, accrued or scheduled to be paid or accrued by
the Company and its Restricted Subsidiaries from the last
day of the fiscal quarter of the Company immediately
preceding the Issue Date to the end of the fiscal quarter
immediately preceding the date of determination.
PAGE
<PAGE>
9
"Default" means any event which is, or after
notice or passage of time or both would be, an Event of
Default.
"Dollar Equivalent" means, with respect to any
monetary amount in a currency other than U.S. dollars, at
any time for the determination thereof, the amount of U.S.
dollars obtained by converting such foreign currency
involved in such computation into U.S. dollars at the spot
rate for the purchase of U.S. dollars with the applicable
foreign currency as quoted by Bankers Trust Company in
New York City at approximately 11:00 a.m. (New York time) on
the date two Business days prior to such determination.
"EBITDA" means, for any Person, for any period, an
amount equal to (A) the sum of (i) Consolidated Net Income
for such period, plus (ii) the provision for taxes for such
period based on income or profits to the extent such income
or profits were included in computing Consolidated Net
Income and any provision for taxes utilized in computing net
loss under clause (i) hereof, plus (iii) Consolidated
Interest Expense for such period, plus (iv) depreciation for
such period on a consolidated basis, plus (v) amortization
of intangibles for such period on a consolidated basis, plus
(vi) any other non-cash items reducing Consolidated Net
Income for such period, minus (B) all non-cash items
increasing Consolidated Net Income for such period, all for
such Person and its Subsidiaries determined in accordance
with GAAP consistently applied, except that with respect to
the Company each of the foregoing items shall be determined
on a consolidated basis with respect to the Company and its
Restricted Subsidiaries only.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Fair Market Value" means with respect to any
Property, the price which could be negotiated in an arm's-
length free market transaction, for cash, between a willing
seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair
Market Value will be determined, except as otherwise
provided, (i) if such property or asset has a Fair Market
Value of less than $15 million, by any Officer of the
Company or (ii) if such property or asset has a Fair Market
Value in excess of $15 million, by a majority of the Board
of Directors of the Company and evidenced by a Board
PAGE
<PAGE>
10
Resolution, dated within 30 days of the relevant
transaction.
"GAAP" means United States generally accepted
accounting principles as in effect on the Issue Date, unless
stated otherwise.
"Geotek Management Consulting Agreement" means the
management consulting agreement between the Company and
Geotek Communications, Inc. as in effect on the Issue Date
and renewals or extensions thereof on terms no less
favorable to the Company and its Restricted Subsidiaries.
"Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing
any Indebtedness of any other Person and any obligation,
direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such other
Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to
maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other
manner the obligee against loss in respect thereof (in whole
or in part); provided, however, that the term "Guarantee"
shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guarantee" used
as a verb has a corresponding meaning.
"Hedging Obligation" of any Person means any
obligation of such Person pursuant to any Interest Rate
Agreement, foreign exchange contract, currency swap
agreement, currency option or any other similar agreement or
arrangement.
"Holder" or "Securityholder" means the Person in
whose name a __% Debenture is registered on the Registrar's
books.
"Incur" means, with respect to any Indebtedness or
other obligation of any Person, to create, issue, incur (by
merger, conversion, exchange or otherwise), extend, assume,
Guarantee or become liable in respect of such Indebtedness
or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or obligation
on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings
PAGE
<PAGE>
11
correlative to the foregoing); provided, however, that a
change in GAAP that results in an obligation of such Person
that exists at such time, and is not theretofore classified
as Indebtedness, becoming Indebtedness shall not be deemed
an Incurrence of such Indebtedness; provided further, that
solely for purposes of determining compliance with
Section 4.9, amortization of debt discount shall not be
deemed to be the Incurrence of Indebtedness, provided that
in the case of Indebtedness sold at a discount, the amount
of such Indebtedness Incurred shall at all times be the
aggregate principal amount at Stated Maturity.
"Indebtedness" means (without duplication), with
respect to any Person, any indebtedness, secured or
unsecured, contingent or otherwise, which is for borrowed
money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or
similar instruments or representing the balance deferred and
unpaid of the purchase price of any property (excluding any
balances that constitute customer advance payments and
deposits, accounts payable or trade payables, and other
accrued liabilities arising in the ordinary course of
business) if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, and
shall also include, to the extent not otherwise included (i)
any Capital Lease Obligations, (ii) Indebtedness of other
Persons secured by a Lien to which the Property owned or
held by such first Person is subject, whether or not the
obligation or obligation secured thereby shall have been
assumed (the amount of such Indebtedness being deemed to be
the lesser of the value of such property or assets or the
amount of the Indebtedness so secured), (iii) Guarantees of
Indebtedness of other Persons, (iv) any Redeemable Stock
(provided, however, that Redeemable Stock of the Company
shall not constitute Indebtedness if such Redeemable Stock
may not be redeemed prior to the first anniversary of the
Stated Maturity of the __% Debentures), (v) any Attributable
Indebtedness, (vi) all reimbursement obligations of such
Person in respect of letters of credit, bankers' acceptances
or other similar instruments or credit transactions issued
for the account of such Person, (vii) in the case of the
Company, Preferred Stock of its Restricted Subsidiaries and
(viii) to the extent not otherwise included in clauses (i)
through (vii) of this paragraph, any payment obligations of
any such Person at the time of determination under any
Hedging Obligation. For purposes of this definition, the
PAGE
<PAGE>
12
maximum fixed repurchase price of any Redeemable Stock that
does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Redeemable Stock as if
such Redeemable Stock were repurchased on any date on which
Indebtedness shall be required to be determined pursuant to
the Indenture; provided, however, that if such Redeemable
Stock is not then permitted to be repurchased, the
repurchase price shall be the book value of such Redeemable
Stock. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum
liability of any contingent obligations in respect thereof
at such date. For purposes of this definition, the amount
of the payment obligation with respect to any Hedging
Obligation shall be an amount equal to (i) zero, if such
obligation is an Interest Rate Obligation permitted pursuant
to clause (vi) of Section 4.9(b) or (ii) the notional amount
of such Hedging Obligation, if such Hedging Obligation is
not an Interest Rate Agreement so permitted.
"Interest Rate Agreement" means, for any Person,
any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement or other similar
agreement.
"Investment" by any Person means any direct or
indirect loan, advance or other extension of credit or
capital contribution (by means of transfers of cash or other
Property to others or payments for Property or services for
the account or use of others, or otherwise) to, or
Incurrence of a Guarantee of any obligation of, or purchase
or acquisition of Capital Stock, bonds, notes, debentures or
other securities or evidence of Indebtedness issued by, any
other Person. In determining the amount of any Investment
made by transfer of any Property other than cash, such
Property shall be valued at its Fair Market Value at the
time of such Investment.
"Investment Grade Rating" means a rating equal to
or higher than Baa3 (or the equivalent) by Moody's Investors
Service, Inc. (or any successor to the rating agency
business thereof) and BBB- (or the equivalent) by Standard &
Poor's Ratings Group (or any successor to the rating agency
business thereof).
"Issue Date" means the date on which the __%
Debentures are initially issued.
PAGE
<PAGE>
13
"Leverage Ratio" is defined as the ratio of
(i) the outstanding Indebtedness of a Person and its
Subsidiaries (or in the case of the Company, its Restricted
Subsidiaries) divided by (ii) the Annualized Pro Forma
EBITDA of such Person.
"Lien" means, with respect to any Property of any
Person, any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability),
encumbrance, preference, priority, or other security
agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such Property (including
any Capital Lease Obligation, conditional sale or other
title retention agreement having substantially the same
economic effect as any of the foregoing or any Sale and
Leaseback Transaction).
"Net Available Cash" from an Asset Sale means cash
payments received therefrom (including any cash payments
received by way of deferred payment of principal pursuant to
a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration
received in the form of assumption by the acquiring person
of Indebtedness or other obligations relating to such
Properties or assets or received in any other noncash form)
in each case net of all legal, title and recording tax
expenses, commissions and other fees and expenses incurred,
and all Federal, state, provincial, foreign and local taxes
required to be accrued as a liability under GAAP, as a
consequence of such Asset Sale, and in each case net of all
payments made on any Indebtedness which is secured by any
assets subject to such Asset Sale, in accordance with the
terms of any Lien upon or other security agreement of any
kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such
Asset Sale, or by applicable law be repaid out of the
proceeds from such Asset Sale, and net of all distributions
and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of
such Asset Sale.
"Net Cash Proceeds" with respect to any issuance
or sale of Capital Stock, means the cash proceeds of such
issuance or sale, net of attorney's fees, accountants' fees,
underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees
PAGE
<PAGE>
14
actually incurred in connection with such issuance or sale
and net of taxes paid or payable as a result thereof.
"Officer" means the Chief Executive Officer, the
President, the Chief Financial Officer or any Executive Vice
President of the Company.
"Permitted Holders" means Haynes G. Griffin,
Stephen R. Leeolou, L. Richardson Preyer, Jr., Stuart S.
Richardson, their estates, spouses, ancestors, and lineal
descendants, the legal representatives of any of the
foregoing and the trustee of any bona fide trust of which
the foregoing are the sole beneficiaries or the grantors, or
any Person of which the foregoing "beneficially owns" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act)
voting securities representing at least 66 % of the total
voting power of all classes of Capital Stock of such Person
(exclusive of any matters as to which class voting rights
exist) and the Richardson Family.
"Permitted Investment" means an Investment by the
Company or any Restricted Subsidiary in (i) a Restricted
Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted
Subsidiary is a Related Business; (ii) another Person if as
a result of such Investment such other Person is merged or
consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted
Subsidiary; provided, however, that such Person's primary
business is a Related Business; (iii) Temporary Cash
Investments; (iv) receivables owing to the Company or any
Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in
accordance with customary trade terms; (v) payroll, travel
and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the
ordinary course of business; (vi) loans and advances to
employees made in the ordinary course of business consistent
with past practice of the Company or such Restricted
Subsidiary, as the case may be, provided that such loans and
advances do not exceed $15 million at any one time
outstanding; and (vii) stock, obligations or securities
received in settlement of debts created in the ordinary
course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments.
PAGE
<PAGE>
15
"Permitted Liens" means (i) Liens on the Property
of the Company or any Restricted Subsidiary existing on the
Issue Date; (ii) Liens to secure Indebtedness permitted to
be Incurred under clause (ii) of Section 4.9(b); (iii) Liens
on the Property of the Company or any Restricted Subsidiary
to secure any extension, renewal, refinancing, replacement
or refunding (or successive extensions, renewals,
refinancings, replacements or refundings), in whole or in
part, of any Indebtedness secured by Liens referred to in
any of clauses (i), (ii), (vii) or (x); provided, however,
that any such Lien will be limited to all or part of the
same Property that secured the original Lien (plus
improvements on such Property) and the aggregate principal
amount of Indebtedness that is secured by such Lien will not
be increased to an amount greater than the sum of (A) the
outstanding principal amount, or, if greater, the committed
amount, of the Indebtedness secured by Liens described under
clauses (i), (ii), (vii) or (x) at the time the original
Lien became a Permitted Lien under the Indenture and (B) an
amount necessary to pay any premiums, fees and other
expenses incurred by the Company in connection with such
refinancing, refunding, extension, renewal or replacement;
(iv) Liens for taxes, assessments or governmental charges or
levies on the Property of the Company or any Restricted
Subsidiary if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings;
(v) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens and other similar Liens on the Property
of the Company or any Restricted Subsidiary arising in the
ordinary course of business and securing payment of
obligations which are not more than 60 days past due or are
being contested in good faith and by appropriate
proceedings; (vi) Liens on the Property of the Company or
any Restricted Subsidiary Incurred in the ordinary course of
business to secure performance of obligations with respect
to statutory or regulatory requirements, performance or
return-of-money bonds, surety bonds or other obligations of
a like nature and Incurred in a manner consistent with
industry practice; (vii) Liens on Property at the time the
Company or any Restricted Subsidiary acquired such Property,
including any acquisition by means of a merger or
consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that such Lien shall not have
been Incurred in anticipation or in connection with such
transaction or series of related transactions pursuant to
which such Property was acquired by the Company or any
Restricted Subsidiary; (viii) other Liens on the Property of
PAGE
<PAGE>
16
the Company or any Restricted Subsidiary incidental to the
conduct of their respective businesses or the ownership of
their respective Properties which were not created in
connection with the Incurrence of Indebtedness or the
obtaining of advances or credit and which do not in the
aggregate materially detract from the value of their
respective Properties or materially impair the use thereof
in the operation of their respective businesses;
(ix) pledges or deposits by the Company or any Restricted
Subsidiary under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other
than for the payment of Indebtedness) or leases to which the
Company or any Restricted Subsidiary is party, or deposits
to secure public or statutory obligations of the Company, or
deposits for the payment of rent, in each case Incurred in
the ordinary course of business; (x) Liens on the Property
of a Person at the time such Person becomes a Restricted
Subsidiary; provided, however, that any such Lien may not
extend to any other Property of the Company or any other
Restricted Subsidiary which is not a direct Subsidiary of
such Person; provided further, however, that any such Lien
was not Incurred in anticipation of or in connection with
the transaction or series of related transactions pursuant
to which such Person became a Restricted Subsidiary, or
(xi) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character.
"Permitted Receivables Facility" means a
receivables financing facility pursuant to which any
Restricted Subsidiary sells accounts receivable to a special
purpose company or trust and in connection therewith such
company or trust incurs Indebtedness secured by, or issues
interests supported by, such accounts receivable.
"Permitted Refinancing Indebtedness" means any
renewals, extensions, substitutions, refinancings or
replacements of any Indebtedness, including any successive
extensions, renewals, substitutions, refinancings or
replacements so long as (i) the aggregate amount of
Indebtedness represented thereby is not increased by such
renewal, extension, substitution, refinancing or replacement
(other than to finance fees and expenses, including any
premium and defeasance costs), (ii) the Average Life of such
Indebtedness is equal to or greater than the Average Life of
the Indebtedness being refinanced, (iii) the Stated Maturity
PAGE
<PAGE>
17
of such Indebtedness is no earlier than the Stated Maturity
of the Indebtedness being refinanced and (iv) the new
Indebtedness shall not be senior in right of payment to the
Indebtedness that is being extended, renewed, substituted,
refinanced or replaced; provided that Permitted Refinancing
Indebtedness shall not include (a) Indebtedness of a
Subsidiary that refinances Indebtedness of the Company or
(b) Indebtedness of the Company or a Restricted Subsidiary
that refinances Indebtedness of an Unrestricted Subsidiary.
"Person" means any individual, corporation,
company (including any limited liability company),
partnership, joint venture, trust, unincorporated
organization or government or any agency or political
subdivision thereof.
"Preferred Stock" means any Capital Stock of a
Person, however designated, which entitles the holder
thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such Person over
the holders of other Capital Stock issued by such Person.
"Pro Forma EBITDA" means for any Person, for any
period, the EBITDA of such Person as determined on a
consolidated basis in accordance with GAAP consistently
applied after giving effect to the following: (i) if,
during or after such period, such Person or any of its
Subsidiaries shall have made any disposition of any Person
or business, Pro Forma EBITDA of such Person and its
Subsidiaries shall be computed so as to give pro forma
effect to such disposition and (ii) if, during or after such
period, such Person or any of its Subsidiaries completes an
acquisition of any Person or business which immediately
after such acquisition is a Subsidiary of such Person or
whose assets are held directly by such Person or a
Subsidiary of such Person, Pro Forma EBITDA shall be
computed so as to give pro forma effect to the acquisition
of such Person or business; provided, however, that, with
respect to the Company, all of the foregoing references to
"Subsidiary" or "Subsidiaries" shall be deemed to refer only
to the "Restricted Subsidiaries" of the Company.
"Property" means, with respect to any Person, any
interest of such Person in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible,
including, without limitation, Capital Stock in, and other
securities of, any other Person (but excluding Capital Stock
or other securities issued by such first mentioned Person).
PAGE
<PAGE>
18
"Rating Agencies" mean Standard & Poor's Ratings
Group, a division of McGraw Hill, Inc., and Moody's
Investors Service, Inc. or any successor to the respective
rating agency businesses thereof.
"Rating Date" means the date which is 90 days
prior to the earlier of (i) a Change of Control and
(ii) public notice of the occurrence of a Change of Control
or of the intention of the Company to effect a Change of
Control.
"Rating Decline" means, with respect to the __%
Debentures, the occurrence of the following on, or within
90 days after, the date of public notice of the occurrence
of a Change of Control or of the intention by the Company to
effect a Change of Control (which period shall be extended
so long as the rating of such __% Debentures is under
publicly announced consideration for possible downgrade by
any of the Rating Agencies): (a) in the event the __%
Debentures are assigned an Investment Grade Rating by both
Rating Agencies on the Rating Date, the rating of the __%
Debentures by one of the Rating Agencies shall be below an
Investment Grade Rating; or (b) in the event the __%
Debentures are rated below an Investment Grade Rating by at
least one of the Rating Agencies on the Rating Date, the
rating of the __% Debentures by at least one of the Rating
Agencies shall be decreased by one or more gradations
(including gradations within rating categories as well as
between rating categories).
"Redeemable Dividend" means, for any dividend with
regard to Redeemable Stock, the quotient of the dividend
divided by the difference between one and the maximum
statutory federal income tax rate (expressed as a decimal
number between 1 and 0) then applicable to the issuer of
such Redeemable Stock.
"Redeemable Stock" means, with respect to any
Person, any Capital Stock that by its terms (or by the terms
of any security into which it is convertible or for which it
is exchangeable) or otherwise (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or
otherwise, (ii) is or may become redeemable or
repurchaseable at the option of the holder thereof, in whole
or in part, or (iii) is convertible or exchangeable for
Indebtedness.
PAGE
<PAGE>
19
"Registrar" means the office or agency established
pursuant to Section 4.2 where __% Debentures may be
presented for registration of transfer or for exchange.
"Related Business" means any business directly
related to the ownership, development, operation and
acquisition of telecommunications systems.
"Related Entity" means a Person substantially all
of whose Property consists of Subsidiaries and Investments
in Persons, the primary businesses of which are Related
Businesses.
"Restricted Payment" means (i) any dividend or
distribution (whether made in cash, property or securities)
declared or paid on or with respect to any shares of Capital
Stock of the Company or Capital Stock of any Restricted
Subsidiary except for any dividend or distribution which is
made solely to the Company or a Restricted Subsidiary (and,
if such Restricted Subsidiary is not a Wholly Owned
Subsidiary, to the other shareholders of such Restricted
Subsidiary on a pro rata basis) or dividends or
distributions payable solely in shares of Capital Stock
(other than Redeemable Stock) of the Company; (ii) a payment
made by the Company or any Restricted Subsidiary to
purchase, redeem, acquire or retire any Capital Stock of the
Company or Capital Stock of any Affiliate of the Company
(other than a Restricted Subsidiary) or any warrants, rights
or options to directly or indirectly purchase or acquire any
such Capital Stock or any securities exchangeable for or
convertible into any such Capital Stock; (iii) a payment
made by the Company or any Restricted Subsidiary to redeem,
repurchase, defease or otherwise acquire or retire for
value, prior to any scheduled maturity, scheduled sinking
fund or mandatory redemption payment (other than the
purchase, repurchase, or other acquisition of any
Indebtedness subordinate in right of payment to the __%
Debentures purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in
each case due within one year of the date of acquisition),
Indebtedness of the Company which is subordinate (whether
pursuant to its terms or by operation of law) in right of
payment to the __% Debentures; or (iv) an Investment (other
than Permitted Investments) in any Person.
"Restricted Subsidiary" means (i) any Subsidiary
of the Company after the Issue Date unless such Subsidiary
shall have been designated an Unrestricted Subsidiary as
PAGE
<PAGE>
20
permitted or required pursuant to the definition of
"Unrestricted Subsidiary" and (ii) an Unrestricted
Subsidiary which is redesignated as a Restricted Subsidiary
as permitted pursuant to the definition of "Unrestricted
Subsidiary".
"Richardson Family" means, collectively, the
descendants of Lunsford Richardson, Sr., and any of their
respective spouses, estates, lineal descendants, heirs,
executors, personal representatives, administrators, trusts
for any of their benefit and charitable foundations to which
shares of the Company's Capital Stock beneficially owned by
any of the foregoing have been transferred.
"Sale and Leaseback Transaction" means, with
respect to any Person, any direct or indirect arrangement
pursuant to which Property is sold or transferred by such
Person or a Subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such
Person or one of its Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Stated Maturity" means, with respect to any
security, the date specified in such security as the fixed
date on which the payment of principal of such security is
due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing
for the repurchase of such security at the option of the
holder thereof upon the happening of any contingency beyond
the control of the issuer unless such contingency has
occurred).
"Subsidiary" of any specified Person means any
corporation, partnership, joint venture, association or
other business entity, whether now existing or hereafter
organized or acquired, (i) in the case of a corporation, of
which at least 50% of the total voting power of the Voting
Stock is held by such first-named Person or any of its
Subsidiaries and such first-named Person or any of its
Subsidiaries has the power to direct the management,
policies and affairs thereof; or (ii) in the case of a
partnership, joint venture, association, or other business
entity, with respect to which such first-named Person or any
of its Subsidiaries has the power to direct or cause the
direction of the management and policies of such entity by
contract or otherwise if in accordance with generally
accepted accounting principles such entity is consolidated
PAGE
<PAGE>
21
with the first-named Person for financial statement
purposes.
"Temporary Cash Investments" means any of the
following: (i) Investments in U.S. Government Obligations
maturing within 90 days of the date of acquisition thereof,
(ii) Investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 90 days of
the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the
United States of America or any state thereof having
capital, surplus and undivided profits aggregating in excess
of $500,000,000 and whose long-term debt is rate "A-3" or
"A-" or higher according to Moody's Investors Service, Inc.
or Standard & Poor's Ratings Group (or such similar
equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436
under the Securities Act)), (iii) repurchase obligations
with a term of not more than 7 days for underlying
securities of the types described in clause (i) entered into
with a bank meeting the qualifications described in clause
(ii) above, and (iv) Investments in commercial paper,
maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under
the laws of the United States of America with a rating at
the time as of which any Investment therein is made of "P-1"
(or higher) according to Moody's Investors Service, Inc. or
"A-1" (or higher) according to Standard & Poor's Ratings
Group (or such similar equivalent rating by at least one
"nationally recognized statistical rating organization" (as
defined in Rule 436 under the Securities Act)).
"TIA" means the Trust Indenture Act of 1939
(15 U.S.C. ss. 77aaa-77bbbb) as in effect on the date of this
Indenture; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "TIA"
means, to the extent required by any such amendment, the
Trust Indenture Act of 1939, as so amended.
"Trustee" means the party named as such in this
Indenture until a successor replaces it in accordance with
the provisions of this Indenture and, thereafter, means the
successor.
"Unrestricted Subsidiary" means (a) Vanguard
Cellular Services, Inc. and any other Subsidiary of the
Company in existence on the Issue Date that is not a
PAGE
<PAGE>
22
Restricted Subsidiary and (b) any Subsidiary of an
Unrestricted Subsidiary. The Company's Board of Directors
may designate any Subsidiary of the Company or any
Restricted Subsidiary to be an Unrestricted Subsidiary if
(i) the Subsidiary to be so designated does not own any
Capital Stock or Indebtedness of, or own or hold any Lien on
any Property of, the Company or any other Restricted
Subsidiary, (ii) the Subsidiary to be so designated is not
obligated under any Indebtedness or other obligation that,
if in default, would result (with the passage of time or
notice or otherwise) in a default on any Indebtedness of the
Company or any Restricted Subsidiary and (iii) either
(A) the Subsidiary to be so designated has total assets of
$1,000 or less or (B) such designation is effective
immediately upon such entity becoming a Subsidiary of the
Company or any Restricted Subsidiary. Unless so designated
as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Company or of any Restricted Subsidiary
will be classified as a Restricted Subsidiary; provided,
however, that such Subsidiary shall not be designated a
Restricted Subsidiary and shall be automatically classified
as an Unrestricted Subsidiary if the Company would be unable
to Incur at least $1.00 of additional Indebtedness pursuant
to clause (i) of Section 4.9(a). Except as provided in the
second sentence of this paragraph, no Restricted Subsidiary
may be redesignated as an Unrestricted Subsidiary. The
Company's Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately
after giving pro forma effect to such designation, (x) the
Company could Incur at least $1.00 of additional
indebtedness pursuant to clause (i) of Section 4.9(a) and
(y) no Default or Event of Default shall have occurred and
be continuing or would result therefrom. Any such
designation by the Company's Board of Directors will be
evidenced to the Trustee by filing with the Trustee a copy
of the Board Resolution giving effect to such designation
and an Officers' Certificate certifying (i) that such
designation complies with the foregoing provisions and
(ii) giving the effective date of such designation, such
filing with the Trustee to occur within 75 days after the
end of the fiscal quarter of the Company in which such
designation is made (or in the case of a designation made
during the last fiscal quarter of the Company's fiscal year,
within 120 days after the end of such fiscal year).
"U.S. Government Obligations" means direct
obligations (or certificates representing an ownership
interest in such obligations) of the United States of
PAGE
<PAGE>
23
America (including any agency or instrumentality thereof)
for the payment of which the full faith and credit of the
United States of America is pledged and which are not
callable or redeemable at the issuer's option.
"Voting Stock" of a corporation means all classes
of Capital Stock of such corporation then outstanding and
normally entitled to vote in the election of directors.
"Wholly Owned Subsidiary" means a Restricted
Subsidiary of the Company all the Capital Stock of which
(other than directors' qualifying shares) is owned by the
Company and/or one or more other Wholly Owned Subsidiaries.
C. Other Definitions.
The following terms are defined in this Supplement
in the Sections indicated:
Defined in
Term Section
Affiliate Transaction 4.14
Bankruptcy Law 7.1
covenant defeasance option 6.1(b)
Custodian 7.1
__% Debentures Recitals
Depository I2E
DTC I2E
Event of Default 7.1
Excess Proceeds 4.12(c)
Global Securities I2E
Indenture Preliminary Statement
Interest Payment Date I2E
legal defeasance option 6.1(b)
Notice of Default 7.1
Prepayment Date 4.12(c)
Purchase Offer 4.12(c)
Record Date I2F
Successor Company 10.1
PAGE
<PAGE>
24
2. Terms of the __% Debentures.
A. Designation.
The __% Debentures are hereby created and shall be
issuable in one series. The __% Debentures shall be
designated as the "__% Senior Debentures Due 2006".
B. Dating of the __% Debentures.
All __% Debentures shall be dated the date of
authentication.
C. Maximum Aggregate Outstanding Amount.
The maximum aggregate principal amount of the __%
Debentures that may be authenticated and delivered under
this Supplement is limited to $200,000,000, except for __%
Debentures authenticated and delivered upon transfer of, or
in exchange for, or in lieu of, other __% Debentures
pursuant to Sections 2.6, 2.8, 2.9, 2.10, 2.11, 2.17, 5.2 or
12.5 of the Indenture.
D. Stated Maturity.
The principal amount of the __% Debentures shall
be due and payable on April , 2006.
E. Denomination of __% Debentures.
The __% Debentures shall initially be represented
by one or more global securities (the "Global Securities")
deposited with The Depository Trust Company ("DTC"), as
depositary, and registered in the name of a nominee of DTC.
Except as set forth in the Indenture, the __% Debentures
will be available for purchase in denominations of $1,000
and integral multiples thereof in book-entry form only. The
term "Depository" refers to DTC or any successor depository,
as depositary.
F. Payments of Principal and Interest, Record Dates
Each __% Debenture shall bear interest on its
outstanding principal balance from , 1996 at
% per annum until payment of the principal thereof has
been made or duly provided for. Interest on the __%
Debentures shall be paid semi-annually on and
, commencing on , 1996 (each an "Interest
PAGE
<PAGE>
25
Payment Date"). Interest on the __% Debentures shall be
computed on the basis of a 360-day year of twelve 30-day
months, from the later of: (1) , 1996 or (2) the
most recent Interest Payment Date to which interest has been
paid or duly provided for to the end of the next Interest
Payment Date. Interest on the __% Debentures shall be
payable in lawful money of the United States of America.
The principal of each __% Debenture shall be
payable on the date due upon delivery and surrender of such
__% Debenture to the Trustee at the principal office of the
Trustee in lawful money of the United States of America by
check or by wire transfer of immediately available funds.
The record date ("Record Date") for each Interest
Payment Date shall be the close of business on the
and next preceding each Interest Payment Date,
whether or not such date shall be a Business day.
G. Form of __% Debentures.
The __% Debentures shall all be issued in global
form. The form of the __% Debentures and the Trustee's
certificate of authentication are attached hereto as
Exhibit A, which is hereby incorporated in and expressly
made a part of the Indenture. Each of the __% Debentures
shall be numbered consecutively from A-1 upward. The __%
Debentures shall bear a CUSIP number, but any failure to
indicate or any error in such CUSIP number shall not in any
way affect the validity of the __% Debentures. The terms of
the __% Debentures set forth in Exhibit A are part of the
terms of this Indenture.
H. Ranking.
The __% Debentures shall constitute unsecured and
unsubordinated indebtedness of the Company and shall rank
pari passu with any other unsecured and unsubordinated
indebtedness of the Company.
I. Sinking Fund.
There will be no mandatory sinking fund payments
for the __% Debentures.
3. Provisions Supplemental to Article II of Indenture.
PAGE
<PAGE>
26
A. Article II of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the final sentence of Section 2.6, the following:
The __% Debentures shall be issued in registered
form and shall be transferable only upon the surrender
of a __% Debenture for registration of transfer. When
a __% Debenture is presented to the Registrar or a co-
registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if
the requirements of Section 8-401(1) of the Uniform
Commercial Code are met. When __% Debentures are
presented to the Registrar or a co-registrar with a
request to exchange them for an equal principal amount
of __% Debentures of other denominations, the Registrar
shall make the exchange as requested if the same
requirements are met. To permit registration of
transfers and exchanges, the Company shall execute and
the Trustee shall authenticate __% Debentures at the
Registrar's or co-registrar's request.
B. Article II of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the phrase "of evidence" in the first sentence of
Section 2.9, the phrase "that the requirements of Section 8-
405 of the Uniform Commercial Code have been met and
evidence".
C. Article II of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the first sentence of Section 2.11, the following:
The Company may not issue new __% Debentures to
replace __% Debentures it has redeemed, paid or
delivered to the Trustee for cancellation.
D. Article II of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the final sentence of Section 2.13, the following:
SECTION 2.14. Registrar and Paying Agent.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar
not a party to this Indenture, which shall incorporate the
terms of the TIA. The agreement shall implement the provi-
sions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of
PAGE
<PAGE>
27
any such agent. If the Company fails to maintain a Regis-
trar or Paying Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor
pursuant to Section 11.2. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act
as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as
Registrar and Paying Agent in connection with the __% De-
bentures.
SECTION 2.15. Securityholder Lists. The Trustee
shall preserve in as current a form as is reasonably prac-
ticable the most recent list available to it of the names
and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in
writing at least five Business days before each interest
payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date
as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.16. Outstanding __% Debentures. __%
Debentures outstanding at any time are all __% Debentures
authenticated by the Trustee except for those canceled by
it, those paid pursuant to Section 2.9, those delivered to
it for cancellation and those described in this Section as
not outstanding. A __% Debenture does not cease to be
outstanding because the Company or an Affiliate of the
Company holds the __% Debenture.
If a __% Debenture is replaced pursuant to Sec-
tion 2.9, it ceases to be outstanding unless the Trustee and
the Company receive proof satisfactory to them that the
replaced __% Debenture is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust,
in accordance with this Indenture, on a redemption date or
maturity date money sufficient to pay all principal and
interest payable on that date with respect to the __%
Debentures (or portions thereof) to be redeemed or maturing,
as the case may be, then on and after that date such __%
Debentures (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.17. Temporary __% Debentures. Until
definitive __% Debentures are ready for delivery, the
Company may prepare and the Trustee shall authenticate
PAGE
<PAGE>
28
temporary __% Debentures. Temporary __% Debentures shall be
substantially in the form of definitive __% Debentures but
may have variations that the Company considers appropriate
for temporary __% Debentures. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate
definitive __% Debentures and deliver them in exchange for
temporary __% Debentures.
SECTION 2.18. Record Date. The Company may set a
record date for purposes of determining the identity of
Securityholders entitled to vote or to consent to any action
by vote of consent authorized or permitted by Sections 3.15,
7.5 and 7.6. Unless this Indenture provides otherwise, such
record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent
list of Holders furnished to the Trustee pursuant to
Section 2.15 prior to such solicitation.
4. Provisions Supplemental to Article III of the
Indenture.
A. For purposes of the __% Debentures only,
Section 3.12 of the Indenture is hereby superseded in its
entirety and replaced by the following:
SECTION 3.12. Governing Law. The Indenture and
each __% Debenture issued hereunder shall be governed by,
and construed in accordance with, the laws of the State of
New York but without giving effect to applicable conflicts
of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
B. Article III of the Indenture is hereby
supplemented with respect to the __% Debentures by
inserting, following the final sentence of Section 3.13, the
following:
SECTION 3.14. Communication by Holders with Other
Holders. Securityholders may communicate pursuant to TIA
s. 312(b) with other Securityholders with respect to their
rights under this Indenture or the __% Debentures. The
Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA s. 312(c).
SECTION 3.15. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action
PAGE
<PAGE>
29
by or a meeting of Securityholders. The Registrar and the
Paying Agent may make reasonable rules for their functions.
5. Provisions Supplemental to Article IV of the Indenture.
A. For purposes of the __% Debentures, Section 4.4 of
the Indenture is hereby superseded in its entirety and shall
not apply to the __% Debentures.
B. Article IV of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the final sentence of Section 4.8, the following:
SECTION 4.9. Limitation on Indebtedness. (a) The
Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any
Indebtedness unless after giving pro forma effect to the
application of the proceeds thereof, no Default or Event of
Default would occur as a consequence of such Incurrence or
be continuing following such Incurrence and either (i) after
giving effect to the Incurrence of such Indebtedness and the
receipt and application of the proceeds thereof, the
Leverage Ratio of the Company and the Restricted
Subsidiaries (on a consolidated basis) would not exceed
(1) 8.5 from the Issue Date until March 31, 1998 and (2) 7.5
after March 31, 1998 or (ii) such Indebtedness is Permitted
Indebtedness.
(b) Permitted Indebtedness is defined to include
any and all of the following: (i) Indebtedness pursuant to
the revolving loan portion of the Credit Facility in an
aggregate amount outstanding at any time not to exceed $75
million; (ii) Indebtedness in respect of Capital Lease
Obligations and/or Capital Expenditure Indebtedness,
provided, that (a) the aggregate principal amount of such
Indebtedness does not exceed the Fair Market Value (on the
date of such Incurrence) of the property or asset acquired
or constructed and (b) the aggregate principal amount of all
Indebtedness Incurred under this clause (ii) during any
calendar year does not exceed $25 million;
(iii) Indebtedness of the Company evidenced by the __%
Debentures; (iv) Indebtedness of the Company owing to and
held by a Restricted Subsidiary and Indebtedness of a
Restricted Subsidiary owing to and held by the Company or
any Restricted Subsidiary; provided, however, that any event
that results in any such Restricted Subsidiary ceasing to be
a Restricted Subsidiary or any subsequent transfer of any
such Indebtedness (except to the Company or a Restricted
PAGE
<PAGE>
30
Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the issuer thereof;
(v) Indebtedness (other than Indebtedness permitted by the
immediately preceding paragraph or elsewhere in this
paragraph) in an aggregate principal amount outstanding at
any time not to exceed $25 million; (vi) Indebtedness under
Interest Rate Agreements entered into for the purpose of
limiting interest rate risks, provided, that the obligations
under such agreements are related to payment obligations on
Indebtedness otherwise permitted by the terms of this
covenant; (vii) Indebtedness in connection with one or more
standby letters of credit or performance bonds issued in the
ordinary course of business or pursuant to self-insurance
obligations and not in connection with the borrowing of
money or the obtaining of advances or credit;
(viii) Indebtedness outstanding on the Issue Date not
otherwise described in clauses (i) through (vii) above; and
(ix) Permitted Refinancing Indebtedness Incurred in respect
of Indebtedness Incurred pursuant to clause (i) of
Section 4.9(a) and clauses (ii), (iii) and (viii) of this
Section 4.9(b).
SECTION 4.10. Limitation on Restricted Payments.
(a) The Company shall not make, and shall not permit any
Restricted Subsidiary to make, any Restricted Payment if at
the time of, and after giving effect to, such proposed
Restricted Payment, (i) a Default or Event of Default shall
have occurred and be continuing, (ii) the Company could not
Incur at least $1.00 of additional Indebtedness pursuant to
clause (i) of Section 4.9(a) or (iii) the aggregate amount
of such Restricted Payment and all other Restricted Payments
made since the Issue Date (the amount of any Restricted
Payment, if made other than in cash, to be based upon Fair
Market Value) would exceed an amount equal to the sum of
(1) the excess of (A) Cumulative EBITDA over (B) the product
of 1.5 and Cumulative Interest Expense, (2) Capital Stock
Sale Proceeds, (3) the amount by which Indebtedness of the
Company or any Restricted Subsidiary is reduced on the
Company's balance sheet upon the conversion or exchange
(other than by a Subsidiary) subsequent to the Issue Date of
any Indebtedness of the Company or any Restricted Subsidiary
convertible or exchangeable for Capital Stock (other than
Redeemable Stock) of the Company (less the amount of any
cash or other Property distributed by the Company or any
Restricted Subsidiary upon conversion or exchange) and
(4) an amount equal to the net reduction in Investments made
by the Company and its Restricted Subsidiaries subsequent to
the Issue Date in any Person resulting from (A) dividends,
PAGE
<PAGE>
31
repayment of loans or advances, or other transfers or
distributions of Property (but only to the extent the
Company excludes such transfers or distributions from the
calculation of EBITDA for purposes of clause (iii)(1)
above), in each case to the Company or any Restricted
Subsidiary from any Person or (B) the redesignation of any
Unrestricted Subsidiary as a Restricted Subsidiary, not to
exceed, in the case of (A) or (B), the amount of such
Investments previously made by the Company and its
Restricted Subsidiaries in such Person or such Unrestricted
Subsidiary, as the case may be, which were treated as
Restricted Payments.
(b) Notwithstanding Section 4.10(a), the Company
may (i) pay dividends on its Capital Stock within 60 days of
the declaration thereof if, on the declaration date, such
dividends could have been paid in compliance with the
Indenture, (ii) redeem, repurchase, defease, acquire or
retire for value, any Indebtedness subordinate (whether
pursuant to its terms or by operation of law) in right of
payment to the __% Debentures with the proceeds of any
Permitted Refinancing Indebtedness, (iii) acquire, redeem or
retire Capital Stock of the Company or Indebtedness
subordinate (whether pursuant to its terms or by operation
of law) in right of payment to the __% Debentures in
exchange for, or in connection with a substantially
concurrent issuance of, Capital Stock of the Company (other
than Redeemable Stock and other than Capital Stock issued or
sold to a Subsidiary or an employee stock ownership plan or
other trust established by the Company or any Subsidiary),
(iv) consummate an exchange of Investments in Persons, the
primary businesses of which are Related Businesses, but only
if such exchange complies with clauses (i) and (ii)(B) of
Section 4.12(a), (v) receive Capital Stock of Geotek
Communications, Inc. pursuant to the Geotek Management
Consulting Agreement and (vi) make Investments in Persons
the primary businesses of which are Related Businesses
(other than Investments in the Capital Stock of the Company)
in an amount at any time outstanding not to exceed in the
aggregate for all such Investments made in reliance upon
this clause (vi), the sum of (1) $50 million and (2) an
amount equal to the net reduction in Investments made by the
Company and its Restricted Subsidiaries subsequent to the
Issue Date in any Person resulting from payments of
dividends, repayment of loans or advances, or other
transfers or distributions of Property to the Company or any
Restricted Subsidiary from any Person (but only to the
extent such net reduction in Investments has not been
PAGE
<PAGE>
32
utilized to permit a Restricted Payment pursuant to clause
(iii)(1) or (iii)(4) in Section 4.10(a)) not to exceed, in
the case of clause (vi)(2), the amount of such Investments
previously made by the Company and its Restricted
Subsidiaries in such Person which were treated as Restricted
Payments; provided, however, that no more than $25 million
of the aggregate Investments permitted to be made pursuant
to this clause (vi) may be utilized to make Investments in
Inter-Act Systems, Inc.
(c) Any payments made pursuant to clauses (ii),
(iii), (iv) and (v) of Section 4.10(b) shall be excluded
from the calculation of the aggregate amount of Restricted
Payments made after the Issue Date; provided, however, that
the proceeds from the issuance of Capital Stock pursuant to
clause (iii) of Section 4.10(b) shall not constitute Capital
Stock Sale Proceeds for purposes of clause (iii)(2) of
Section 4.10(a).
SECTION 4.11. Limitation on Liens. The Company
shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, Incur or suffer to exist, any
Lien (other than Permitted Liens) upon any of its Property,
whether now owned or hereafter acquired, including any Lien
on any interest in, or any income or profits from, its
Property unless (a) with respect to any Restricted
Subsidiary, such Lien secures Indebtedness other than
Guarantees of Indebtedness of the Company or (b) effective
provision has been or will be made whereby the __%
Debentures will be secured by such Lien; provided, however,
that no Lien may be granted with respect to Indebtedness of
the Company that is subordinated to the __% Debentures.
SECTION 4.12. Limitation on Asset Sales. (a) The
Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset
Sale after the Issue Date unless (i) the Company or such
Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal
to the Fair Market Value of the Property subject to such
Asset Sale and (ii) (A) at least 80% of the consideration
paid to the Company or such Restricted Subsidiary in
connection with such Asset Sale is in the form of cash or
cash equivalents or (B) the consideration paid to the
Company or such Restricted Subsidiary is determined in good
faith by the Board of Directors of the Company, as evidenced
by a Board Resolution, to be substantially comparable in
type to the assets being sold.
PAGE
<PAGE>
33
(b) The Net Available Cash (or any portion
thereof) from Asset Sales may be applied by the Company or a
Restricted Subsidiary, to the extent the Company or such
Restricted Subsidiary elects, (i) to prepay, repay or
purchase Indebtedness under the Credit Facility or
Indebtedness of a Restricted Subsidiary (excluding
Indebtedness owed to the Company or an Affiliate of the
Company); or (ii) to reinvest in Additional Assets
(including by means of an Investment in Additional Assets by
a Restricted Subsidiary with Net Available Cash received by
the Company or another Restricted Subsidiary). Any Net
Available Cash from an Asset Sale not applied in accordance
with the first sentence of this Section 4.12(b) within one
year from the date of such Asset Sale or the receipt of such
Net Available Cash shall constitute "Excess Proceeds". When
the aggregate amount of Excess Proceeds exceeds $15 million
(taking into account income earned on such Excess Proceeds),
the Company will be required to make an offer to purchase
(the Prepayment Offer ) the __% Debentures, on a pro rata
basis according to principal amount, at a purchase price
equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon (if any) to the date of purchase
in accordance with the procedures (including prorating in
the event of oversubscription) set forth in the Indenture.
If the aggregate principal amount of __% Debentures
surrendered for purchase by holders thereof exceeds the
amount of Excess Proceeds, then the Trustee shall select the
__% Debentures to be purchased pro rata according to
principal amount or by lot with such adjustments as may be
deemed appropriate by the Company so that only __%
Debentures in denominations of $1,000, or integral multiples
thereof, shall be purchased. To the extent that any portion
of the amount of Net Available Cash remains after compliance
with the preceding sentence and provided that all holders of
__% Debentures have been given the opportunity to tender
their __% Debentures for purchase as described in
Section 4.12(c), the Company or such Restricted Subsidiary
may use such remaining amount for general corporate purposes
and the amount of Excess Proceeds will be reset to zero.
(c) Within five Business days after one year from
the date of an Asset Sale or the receipt of Net Available
Cash therefrom, the Company shall, if it is obligated to
make a Prepayment Offer, send a written notice, by first-
class mail, to the holders of the __% Debentures (the
"Prepayment Offer Notice"), accompanied by such information
regarding the Company and its Subsidiaries as the Company in
good faith believes will enable such holders of the __%
PAGE
<PAGE>
34
Debentures to make an informed decision with respect to the
Prepayment Offer. The Prepayment Offer Notice will state,
among other things, (i) that the Company is offering to
purchase __% Debentures pursuant to the provisions of this
Section 4.12, (ii) that any Debenture (or any portion
thereof) accepted for payment (and duly paid on the Purchase
Date) pursuant to the Prepayment Offer shall cease to accrue
interest after the Purchase Date, (iii) the purchase price
and purchase date, which shall be, subject to any contrary
requirements of applicable law, no less than 30 days nor
more than 60 days from the date the Prepayment Offer Notice
is mailed (the "Purchase Date"), (iv) the aggregate
principal amount of __% Debentures (or portions thereof) to
be purchased and (v) a description of the procedure which
holders of __% Debentures must follow in order to tender
their __% Debentures (or portions thereof) and the
procedures that holders of __% Debentures must follow in
order to withdraw an election to tender their __% Debentures
(or portions thereof) for payment.
SECTION 4.13 Limitation on Restrictions on
Distributions from Restricted Subsidiaries. The Company
shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective, or enter into
any agreement with any Person that would cause to become
effective, any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends,
in cash or otherwise, or make any other distributions on or
in respect of its Capital Stock, or pay any Indebtedness or
other obligation owed, to the Company or any other
Restricted Subsidiary, (b) make any loans or advances to the
Company or any other Restricted Subsidiary or (c) transfer
any of its Property to the Company or any other Restricted
Subsidiary. Such limitation will not apply (1) with respect
to clauses (a), (b) and (c), to encumbrances and
restrictions (i) in existence under or by reason of any
agreements (not otherwise described in clause (iii)) in
effect on the Issue Date, (ii) relating to Indebtedness of a
Restricted Subsidiary and existing at such Restricted
Subsidiary at the time it became a Restricted Subsidiary if
such encumbrance or restriction was not created in
connection with or in anticipation of the transaction or
series of related transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was
acquired by the Company, (iii)(a) any encumbrance or
restriction pursuant to the Credit Facility, provided that
such restrictions or encumbrances are no less favorable to
PAGE
<PAGE>
35
the holders of the __% Debentures than those restrictions or
encumbrances pursuant to the Credit Facility as in effect on
the date of the Indenture; provided further, however, that
the provisions of the Credit Facility permit distributions
to the Company for the purpose of, and in an amount
sufficient to fund, the payment of principal due at maturity
and interest in respect of the __% Debentures (provided, in
either case, that such payment is due or to become due
within 30 days from the date of such distribution) at a time
when there does not exist an event which after notice or
passage of time or both would permit the lenders under the
Credit Facility to declare all amounts thereunder due and
payable or (iv) which result from the renewal, refinancing,
extension or amendment of an agreement referred to in the
immediately preceding clauses (1)(i) and (ii) above and in
clauses (2)(i) and (ii) below, provided, such encumbrance or
restriction is no more restrictive to such Restricted
Subsidiary and is not materially less favorable to the
holders of __% Debentures than those under or pursuant to
the agreement evidencing the Indebtedness so extended,
renewed, refinanced or replaced, and (2) with respect to
clause (c) only, to (i) any encumbrance or restriction
relating to Indebtedness that is permitted to be Incurred
and secured pursuant to the provisions under Section 4.9 and
Section 4.11 that limits the right of the debtor to dispose
of the assets or Property securing such debt, (ii) any
encumbrance or restriction in connection with an acquisition
of Property, so long as such encumbrance or restriction
relates solely to the Property so acquired and was not
created in connection with or in anticipation of such
acquisition, (iii) customary provisions restricting
subletting or assignment of leases and customary provisions
in other agreements that restrict assignment of such
agreements or rights thereunder or (iv) customary
restrictions contained in asset sale agreements limiting the
transfer of such assets pending the closing of such sale.
SECTION 4.14. Limitation on Transactions with
Affiliates. (a) The Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly,
conduct any business or enter into or suffer to exist any
transaction or series of transactions (including the
purchase, sale, transfer, lease or exchange of any Property
or the rendering of any service) with, or for the benefit
of, any Affiliate of the Company (an "Affiliate
Transaction") unless (i) the terms of such Affiliate
Transaction are (1) set forth in writing, (2) in the best
interest of the Company or such Restricted Subsidiary, as
PAGE
<PAGE>
36
the case may be, and (3) no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those
that could be obtained in a comparable arm's-length
transaction with a Person that is not an Affiliate of the
Company or such Restricted Subsidiary, (ii) with respect to
an Affiliate Transaction involving aggregate payments or
value in excess of $15 million, the Board of Directors of
the Company (including a majority of the disinterested
members of the Board of Directors of the Company) approves
such Affiliate Transaction and, in its good faith judgment,
believes that such Affiliate Transaction complies with
clauses (i)(2) and (3) of this paragraph as evidenced by a
Board Resolution and (iii) with respect to an Affiliate
Transaction involving aggregate payments or value in excess
of $25 million, the Company obtains a written opinion from
an independent appraisal firm to the effect that such
Affiliate Transaction is fair, from a financial point of
view.
(b) Notwithstanding Section 4.14(a), the Company
may enter into or suffer to exist the following: (i) any
transaction pursuant to any contract in existence on the
Issue Date; (ii) any transaction or series of transactions
between the Company and one or more of its Restricted
Subsidiaries or between two or more of its Restricted
Subsidiaries; (iii) any Restricted Payment permitted to be
made pursuant to Section 4.10; (iv) the payment of
compensation (including, amounts paid pursuant to employee
benefit plans) for the personal services of officers,
directors and employees of the Company or any of its
Restricted Subsidiaries, so long as the Board of Directors
of the Company in good faith shall have approved the terms
thereof and deemed the services theretofore or thereafter to
be performed for such compensation or fees to be fair
consideration therefor; and (v) loans and advances to
employees made in the ordinary course of business and
consistent with past practice of the Company or such
Restricted Subsidiary, as the case may be, provided that
such loans and advances do not exceed $15 million at any one
time outstanding.
SECTION 4.15. Ownership of Vanguard Cellular
Financial Corp. The Company will at all times maintain its
direct 100% ownership of the Capital Stock of Vanguard
Cellular Financial Corp., the primary obligor with respect
to the Credit Facility, and any other Subsidiary serving as
primary obligor with respect to the Credit Facility prior to
PAGE
<PAGE>
37
the assumption of the Credit Facility by Vanguard Cellular
Financial Corp.
SECTION 4.16. SEC Reports. The Company shall
file with the Trustee and provide Securityholders, within 15
days after it files them with the SEC, copies of its annual
report and the information, documents and other reports
which the Company is required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act. Notwithstanding
that the Company may not be required to remain subject to
the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall continue to file with the
SEC and provide the Trustee and Securityholders with the
annual reports and the information, documents and other
reports which are specified in Sections 13 and 15(d) of the
Exchange Act. The Company also shall comply with the other
provisions of TIA s. 314(a).
6. Provisions Supplemental to Article V of the Indenture.
A. Article V of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the final sentence of Section 5.7, the following (which, to
the extent inconsistent therewith, shall supersede Section
5.2 of the Indenture with respect to the __% Debentures):
SECTION 5.8. Notices to Trustee. If the Company
elects to redeem __% Debentures pursuant to paragraph 5 of
the __% Debentures, it shall notify the Trustee in writing
of the redemption date, the principal amount of __%
Debentures to be redeemed and the paragraph of the __%
Debentures pursuant to which the redemption will occur.
The Company shall give each notice to the Trustee
provided for in this Section at least 60 days before the
redemption date unless the Trustee consents to a shorter
period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to
the effect that such redemption will comply with the
conditions herein. If fewer than all the __% Debentures are
to be redeemed, the record date relating to such redemption
shall be selected by the Company and given to the Trustee,
which record date shall be not less than 15 days after the
date of notice to the Trustee.
PAGE
<PAGE>
38
7. Provisions Supplemental to Article VI of the Indenture.
A. For purposes of the __% Debentures only,
Section 6.1 of the Indenture is hereby superseded in its
entirety and replaced by the following:
SECTION 6.1. Discharge of Liability on __%
Debentures; Defeasance. (a) When (i) the Company delivers
to the Trustee all outstanding __% Debentures (other than
__% Debentures replaced pursuant to Section 2.9) for
cancellation or (ii) all outstanding __% Debentures have
become due and payable, whether at maturity or as a result
of the mailing of a notice of redemption pursuant to
Article V of the Indenture, and the Company irrevocably
deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding __% Debentures,
including interest thereon (other than __% Debentures
replaced pursuant to Section 2.9), and if in either case the
Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Sections
6.1(c) and 6.5, cease to be of further effect with respect
to the __% Debentures. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of
the Company accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the
Company.
(b) Subject to Sections 6.1(c), 6.1A and 6.5, the
Company at any time may terminate (i) all its obligations
under the __% Debentures and this Indenture with respect to
the __% Debentures ("legal defeasance option") or (ii) its
obligations under Sections 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16 (to the extent that failure to comply with
such Section 4.16 shall not violate the TIA), and
Section 10.1(a)(iv) and the related operation of
Section 7.1(4) and the operation of Sections 7.1(6), 7.1(7)
(with respect to Restricted Subsidiaries), 7.1(8) (with
respect to Restricted Subsidiaries) and 7.1(9) ("covenant
defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Company exercises its legal defeasance
option, payment of the __% Debentures may not be accelerated
because of an Event of Default. If the Company exercises
its covenant defeasance option, payment of the __%
Debentures may not be accelerated because of an Event of
Default specified in Sections 7.1(4), 7.1(5) (with respect
<PAGE>
<PAGE>
39
to Section 10.1(a)(iv)), 7.1(6), 7.1(7) (with respect to
Restricted Subsidiaries), 7.1(8) (with respect to Restricted
Subsidiaries) and 7.1(9) (except to the extent covenants or
agreements referenced in such Sections remain applicable).
Upon satisfaction of the conditions set forth
herein and upon request of the Company, the Trustee shall
acknowledge in writing the discharge of those obligations
that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above,
the Company's obligations in Sections 2.7, 2.9, 2.10, 2.14,
2.15, 4.8, 6.2, 6.4, 6.5, 11.2 and 11.6 shall survive until
the __% Debentures have been paid in full. Thereafter, the
Company's obligations in Sections 6.2, 6.4 and 11.2 shall
survive.
SECTION 6.1A. Conditions to Defeasance. The
Company may exercise its legal defeasance option or its
covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with
the Trustee money or U.S. Government Obligations for
the payment of principal and interest on the __%
Debentures to maturity or redemption, as the case may
be;
(2) the Company delivers to the Trustee a
certificate from a nationally recognized firm of
independent accountants expressing their opinion that
the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment
will provide cash at such times and in such amounts as
will be sufficient to pay principal and interest when
due on all the __% Debentures to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and
during the 123-day period no Default specified in
Section 7.1(7) or (8) with respect to the Company
occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on
the date of such deposit and after giving effect
thereto;
PAGE
<PAGE>
40
(5) the deposit does not constitute a default
under any other agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion
of Counsel to the effect that the trust resulting from
the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment
Company Act of 1940;
(7) in the case of the legal defeasance option,
the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the
Securityholders will not recognize income, gain or loss
for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same
times as would have been the case if such defeasance
had not occurred;
(8) in the case of the covenant defeasance option,
the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss
for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
and discharge of the __% Debentures as contemplated by
this Article VI have been complied with.
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption
of __% Debentures at a future date in accordance with
Article V.
B. Article VI of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the final sentence of Section 6.3, the following:
PAGE
<PAGE>
41
SECTION 6.4. Indemnity for Government
Obligations. The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government
Obligations.
SECTION 6.5. Reinstatement. If the Trustee or
Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article VI by reason of
any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the __%
Debentures shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VI until such
time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance
with this Article VI.
8. Provisions Supplemental to Article VII of the
Indenture.
A. For purposes of the __% Debentures only,
Section 7.1 of the Indenture is hereby superseded in its
entirety and replaced by the following:
SECTION 7.1. Events of Default. An "Event of
Default" occurs if:
(1) the Company fails to make any payment of
interest on any __% Debenture when the same becomes due
and payable, and such failure continues for a period of
30 days;
(2) the Company (i) fails to make the payment of
the principal of any __% Debenture when the same
becomes due and payable at its Stated Maturity, upon
redemption, upon declaration, or otherwise, or
(ii) fails to redeem or purchase __% Debentures when
required pursuant to this Indenture or the __%
Debentures;
(3) the Company fails to comply with Section 10.1;
(4) the Company fails to comply with Section 4.2,
4.3, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
PAGE
<PAGE>
42
4.14, 4.15 or 4.16 (other than a failure to purchase
__% Debentures when required under Section 4.12 or
14.1) and such failure continues for 30 days after the
notice specified below, or the Company fails to give
the notice specified below;
(5) the Company fails to comply with any of its
agreements in the __% Debentures or this Indenture
(other than those referred to in (1), (2), (3) or (4)
above) and such failure continues for 60 days after the
notice specified below or the Company fails to give the
notice specified below;
(6) Indebtedness for borrowed money of the Company
or any Restricted Subsidiary is not paid within any
applicable grace period after final maturity or is
accelerated by the holders thereof, the total amount of
such Indebtedness unpaid or accelerated exceeds
$15,000,000 or its Dollar Equivalent at the time and
such default or acceleration continues for 10 days
after notice specified below;
(7) the Company or any Restricted Subsidiary
pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for
relief against it in an involuntary case;
(C) consents to the appointment of a
Custodian of it or for any substantial part of its
property; or
(D) makes a general assignment for the
benefit of is creditors;
or takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Restricted Subsidiary in an involuntary case;
PAGE
<PAGE>
43
(B) appoints a Custodian of the Company or
any Restricted Subsidiary or for any substantial
part of its property; or
(C) orders the winding up or liquidation of
the Company or any Restricted Subsidiary;
or any similar relief is granted under any foreign
laws, and any order or decree described in this Section
7.1(8) remains unstayed and in effect for 60 days; or
(9) any judgment or decree for the payment of
money in excess of $15,000,000 or its Dollar Equivalent
at the time is entered against the Company or any
Restricted Subsidiary and is not discharged and either
(A) an enforcement proceeding has been commenced by any
creditor upon such judgment or decree or (B) there is a
period of 30 consecutive days following the entry of
such judgment or decree during which, in the case of
(A) or (B), such enforcement proceeding, judgment or
decree is not discharged, waived or the execution
thereof stayed and such default continues for 10 days
after the notice specified below.
The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and
whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body.
The term "Bankruptcy Law" means Title 11, United
States Code, or any similar Federal or state law for the
relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4), (5), (6) or (9) is not
an Event of Default until the Trustee or the Holders of at
least 25% in principal amount of the __% Debentures notify
the Company of the Default and the Company does not cure
such Default within the time specified after receipt of such
notice. Such notice must specify the Default, demand that
it be remedied and state that such notice is a "Notice of
Default".
The Company shall deliver to the Trustee, within
30 days after the occurrence thereof, written notice in the
PAGE
<PAGE>
44
form of an Officers' Certificate of any event which with the
giving of notice and the lapse of time would become an Event
of Default under clause (4), (5), (6) or (9), its status and
what action the Company is taking or proposes to take with
respect thereto.
B. For purposes of the __% Debentures only, the first
two sentences of Section 7.2 of the Indenture are hereby
superseded in their entirety and replaced by the following:
If an Event of Default (other than an Event of
Default specified in Section 7.1(7) or (8) with respect to
the Company) occurs and is continuing, the Trustee by notice
to the Company, or the Holders of at least 25% in principal
amount of the __% Debentures by notice to the Company and
the Trustee, may declare the principal of and accrued
interest on all the __% Debentures to be due and payable.
Upon such a declaration, such principal and interest shall
be due and payable immediately. If an Event of Default
specified in Section 7.1(7) or (8) with respect to the
Company occurs, the principal of and interest on all the __%
__% Debentures shall become and be immediately due and
payable without any declaration or other action the part of
the Trustee or any Securityholders. The Holders of a
majority in principal amount of the __% Debentures by 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 acceleration.
No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
C. Article VII of the Indenture is hereby
supplemented with respect to the __% Debentures by
inserting, following the final sentence of Section 7.2, the
following:
The Trustee may fix a record date and payment date for
any payment to Securityholders pursuant to this
Section. At least 15 days before such record date, the
Company shall mail to each Securityholder and the
Trustee a notice that states the record date, the
payment date and amount to be paid.
D. Article VII of the Indenture is hereby
supplemented with respect to the __% Debentures by
PAGE
<PAGE>
45
inserting, following the final word of the first sentence of
the second paragraph of Section 7.5, the following:
or a Default in respect of a provision that under
Section 12.2 cannot be amended without the consent of
each Securityholder affected
E. For purposes of the __% Debentures only, the term
"a majority" in the first sentence of Section 7.7 of the
Indenture is hereby superseded and replaced by the phrase
"at least 25%".
F. Article VII of the Indenture is hereby
supplemented with respect to the __% Debentures by
inserting, following the final sentence of Section 7.9, the
following:
SECTION 7.10. Undertaking for Costs. In any suit
for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion
may require the filing by any party litigant in the suit of
an undertaking to pay the costs of the suit, and the court
in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 7.7 or a
suit by Holders of more than 10% in principal amount of the
__% Debentures.
9. Provisions Supplemental to Article X of the Indenture.
A. For purposes of the __% Debentures only,
Section 10.1 of the Indenture is hereby superseded in its
entirety and replaced by the following:
SECTION 10.1. When Company May Merge or Transfer
Property. (a) The Company shall not consolidate with or
merge with or into any Person, or convey, transfer or lease
all or substantially all its Property, unless: (i) either
(a) the Company shall be the continuing Person in the case
of a merger or consolidation or (b) the resulting, surviving
or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and
existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor
<PAGE>
46
Company shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the
Company under the __% Debentures and this Indenture; (ii) in
the case of a sale, transfer, assignment, lease, conveyance
or other disposition of all or substantially all of the
Company's Property, such Property shall have been
transferred as an entirety or virtually as an entirety to
the Successor Company; (iii) immediately before and after
giving effect to such transaction on a pro forma basis (and
treating any Indebtedness which becomes an obligation of the
Successor Company or any Restricted Subsidiary as a result
of such transaction as having been Incurred by the Successor
Company or such Restricted Subsidiary at the time of such
transaction), no Default or Event of Default shall have
occurred and be continuing; (iv) immediately after giving
effect to such transaction on a pro forma basis (and
treating any Indebtedness which becomes an obligation of the
Company, the Successor Company or any Restricted Subsidiary
as a result of such transaction as having been Incurred by
the Company, the Successor Company or such Restricted
Subsidiary at the time of such transaction), the Company or
the Successor Company, as the case may be, could incur an
additional $1.00 of Indebtedness pursuant to clause (i) of
Section 4.9(a); and (v) the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture (if any) comply
with this Indenture.
(b) The Successor Company shall succeed to, and be
substituted for, and may exercise every right and power of,
the Company under this Indenture, but the predecessor
Company in the case of a lease shall not be released from
the obligation to pay the principal of and interest on the
__% Debentures.
(c) Notwithstanding clauses (ii), (iii) and (iv)
of Section 10.1(a), any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its
Property to the Company.
PAGE
<PAGE>
47
10. Provisions Supplemental to Article XI of the Indenture.
A. Article XI of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the final sentence of the first paragraph of Section 11.1,
the following:
Every provision of this Indenture relating to the
conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the
provisions of this Section and to the provisions of the
TIA.
B. Article XI of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the penultimate sentence of Section 11.5, the following:
The Trustee shall at all times satisfy the
requirements of TIA s. 310(a). No obligor upon the __%
Debentures or Person directly controlling, controlled
by, or under common control with such obligor shall
serve as Trustee upon the __% Debentures. The Trustee
shall comply with TIA s. 310(b); provided, however, that
there shall be excluded from the operation of
TIA s. 310(b)(1) any indenture or indentures under which
other securities or certificates of interest or
participation in other securities of the Company are
outstanding if the requirements for such exclusion set
forth in TIA s. 310(b)(1) are met.
C. Article XI of the Indenture is hereby supplemented
with respect to the __% Debentures by inserting, following
the final sentence of Section 11.14, the following:
SECTION 11.15. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA
s. 311(a), excluding any creditor relationship listed in TIA
s. 311(b). A Trustee who has resigned or been removed shall
be subject to TIA s. 311(a) to the extent indicated.
11. Provisions Supplemental to Article XII of the
Indenture.
A. Article XII of the Indenture is hereby
supplemented with respect to the __% Debentures by
inserting, following the final sentence of Section 12.1, the
following:
PAGE
<PAGE>
48
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a
notice briefly describing such amendment. The failure
to give such notice to all Securityholders, or any
defect therein, shall not impair or affect the validity
of an amendment under this Section.
B. For purposes of the __% Debentures only,
Section 12.2 of the Indenture is hereby superseded in its
entirety and replaced by the following:
SECTION 12.2. Modification of Indenture With
Consent of Holders. The Company and the Trustee may amend
this Indenture or the __% Debentures without notice to any
Securityholders but with the written consent of the Holders
of at least a majority in principal amount of the __%
Debentures. However, without the consent of each
Securityholder affected, an amendment may not:
(1) reduce the amount of __% Debentures whose
Holders must consent to an amendment;
(2) reduce the rate of or extend the time for
payment of interest on any __% Debenture;
(3) reduce the principal of or extend the Stated
Maturity of any __% Debenture;
(4) reduce the premium payable upon the redemption
of any __% Debenture or change the time at which any
__% Debenture may be redeemed in accordance with
Article V;
(5) make any __% Debenture payable in money other
than that stated in the __% Debenture;
(6) subordinate in right of payment, or otherwise
subordinate, the __% Debentures to any other obligation
of the Company; or
(7) make any change in Section 7.5, 7.6 or 7.7 or
the second sentence of this Section.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of
any proposed amendment, but it shall be sufficient if such
consent approves the substance thereof.
PAGE
<PAGE>
49
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a
notice briefly describing such amendment. The failure to
give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an
amendment under this Section.
C. Article XII of the Indenture is hereby
supplemented with respect to the __% Debentures by
inserting, following the final sentence of Section 12.5, the
following:
SECTION 12.6. Revocation and Effect of Consents
and Waivers. A consent to an amendment or a waiver by a
Holder of a __% Debenture shall bind the Holder and every
subsequent Holder of that __% Debenture or portion of the
__% Debenture that evidences the same debt as the consenting
Holder's __% Debenture, even if notation of the consent or
waiver is not made on the __% Debenture. However, any such
Holder or subsequent Holder may revoke the consent or waiver
as to such Holder's __% Debenture or portion of the __%
Debenture if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall
bind every Securityholder.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the
Securityholders entitled to give their consent or take any
other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is
fixed, then notwithstanding the immediately preceding
paragraph, those Persons, who were Securityholders at such
record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 12.7. Trustee To Sign Amendments. The
Trustee shall sign any amendment authorized pursuant to this
Article XII if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In
signing such amendment the Trustee shall be entitled to
receive indemnity reasonably satisfactory to it and to
PAGE
<PAGE>
50
receive, and (subject to Section 11.1) shall be fully
protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that such (i) amendment is
authorized or permitted by this Indenture and that all
conditions precedent to execution, delivery and performance
of such amendment have been satisfied; (ii) the Company has
all necessary corporate power and authority to execute and
deliver the amendment and that the execution, delivery and
performance of such amendment has been duly authorized by
all necessary corporate action; (iii) the execution,
delivery and performance of the amendment do not conflict
with, or result in the breach of or constitute a default
under any of the terms, conditions or provisions of (a) the
Indenture, (b) the Articles of Incorporation or ByLaws of
the Company, (c) any law or regulation applicable to the
Company, (d) any material order, writ, injunction or decree
of any court or governmental instrumentality applicable to
the Company or (e) any material agreement or instruments to
which the Company is subject; (iv) such amendment has been
duly and validly executed and delivered by the Company, and
the Indenture together with such amendment constitutes a
legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and general
equitable principles; and (v) the Indenture together with
such amendment complies with the TIA. Any opinion of
counsel with respect to the foregoing may be based upon such
counsel's knowledge of the Company and may contain such
other qualifications as shall be reasonably acceptable to
the Trustee.
SECTION 12.8. Payment for Consent. Neither the
Company nor any Affiliate of the Company shall, directly or
indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment
of any of the terms or provisions of this Indenture or the
__% Debentures unless such consideration is offered to be
paid to all Holders that so consent, waive or agree to amend
in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
PAGE
<PAGE>
51
D. The Indenture is hereby supplemented with respect
to the __% Debentures by inserting, following the final
sentence of Section 13.12, the following:
ARTICLE XIV
Right to Require Repurchase
SECTION 14.1. Purchase of the Option of Holders
Upon a Change of Control. (a) Upon a Change of Control
Triggering Event, each Holder shall have the right to
require that the Company repurchase such Holder's __%
Debentures at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of
holders of record on the relevant record date to receive
interest due on the related interest payment date), in
accordance with the terms contemplated in Section 14.1(b).
(b) Within 30 days following any Change of
Control Triggering Event, the Company shall cause a notice
of the offer required by this Section 14.1 to be sent at
least once to the Dow Jones News Service or similar business
news service in the United States and send, by first-class
mail to each Holder, a notice to each Holder with a copy to
the Trustee stating:
(1) that a Change of Control Triggering Event has
occurred and that such Holder has the right to require
the Company to purchase such Holder's __% Debentures at
a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if
any, to the date of purchase;
(2) the circumstances and relevant facts regarding
such Change of Control Triggering Event which the
Company in good faith believes will enable Holders to
make an informed decision (which at a minimum will
include (i) the most recently filed Annual Report on
Form 10-K (including audited financial statements) of
the Company, the most recent subsequently filed
Quarterly Report on Form 10-Q and any Current Report on
Form 8-K of the Company filed subsequent to such
Quarterly Report, (ii) a description of material
business developments in the Company's business
subsequent to the date of the latest of such Reports
and (iii) information with respect to pro forma
PAGE
<PAGE>
52
historical income, cash flow and capitalization, each
after giving effect to the Change of Control;
(4) the date such Change of Control Triggering
Event is deemed to have occurred;
(3) the purchase date (which shall be no earlier
than 30 days nor later than 60 days from the date such
notice is mailed); and
(4) the instructions determined by the Company,
consistent with this Section, that a Holder must follow
in order to have its __% Debentures purchased, together
with the information contained in Section 14.1(c) (and
including any related materials).
(c) Not later than the date upon which written
notice required by Section 14.1(b) is delivered to the
Trustee, the Company shall irrevocably deposit with the
Trustee or with a paying agent (or, if the Company is acting
as its own paying agent, segregate and hold in trust) in
Temporary Cash Investments an amount equal to the purchase
price plus accrued and unpaid interest, if any, to the
Holders entitled thereto, to be held for payment in
accordance with the provisions of this Section. Holders
electing to have a __% Debenture purchased will be required
to surrender the __% Debenture, with an appropriate form
duly completed, to the Company at the address specified in
the notice at least five Business days prior to the purchase
date. Holders will be entitled to withdraw their election
if the Trustee or the Company receives not later than three
Business days prior to the purchase date, a facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of the __% Debenture which was
delivered for purchase by the Holder, the certificate number
of such __% Debenture and a statement that such Holder is
withdrawing his election to have such __% Debenture
purchased.
(d) On the purchase date, the Company shall
deliver to the Trustee the __% Debentures or portions
thereof which have been properly tendered to and are to be
accepted by the Company. The Trustee shall, on the purchase
date, mail or deliver payment of the purchase price to each
tendering Holder. In the event that the aggregate purchase
price of the __% Debentures delivered by the Company to the
Trustee is less than the amount deposited with the Trustee,
PAGE
<PAGE>
53
the Trustee shall deliver the excess to the Company
immediately after the end of the payment date.
SECTION 14.2. Covenant to Comply with Securities
Laws upon Purchase of __% Debentures. In connection with
any purchase of securities under Section 4.12 or
Section 14.1 by the Company, the Company shall, to the
extent then applicable and required by law, (i) comply with
Rule 14e-1 (which term, as used herein, includes any
successor provisions thereto) under the Exchange Act and
(ii) otherwise comply with all Federal and state securities
laws so as to permit the rights and obligations under
Section 4.12 or Section 14.1 to be exercised in the time and
in the manner specified in such Sections. To the extent
that the provisions of any such securities laws or
regulations conflict with the provisions of Section 4.12 or
Section 14.1, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to
have breached its obligations described in such Section 4.12
or Section 14.1 by virtue thereof.
II. GENERAL PROVISIONS OF THIS SUPPLEMENT
A. Governing Law
THIS SUPPLEMENT AND EACH __% DEBENTURE ISSUED
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING
EFFECT TO APPLICABLE CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
B. Counterparts
This Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but both of which shall together constitute
but one and the same instrument.
C. Miscellaneous
(a) Except as expressly supplemented by this
Supplement, the Indenture shall remain unchanged and in full
force and effect.
PAGE
<PAGE>
54
(b) This Supplement shall be construed as
supplemental to the Indenture and shall form a part thereof
with respect to the __% Debentures.
(c) All references in the Indenture to any
Section of the Indenture shall be deemed, for purposes of
the __% Debentures, to refer to such Section of the
Indenture as supplemented by the relevant provisions of this
Supplement.
PAGE
<PAGE>
55
IN WITNESS WHEREOF, the Company and the Trustee
have caused this Supplement to be duly executed by their
respective officers thereunto duly authorized as of the day
and year first above written.
VANGUARD CELLULAR SYSTEMS,
INC.,
by
Name:
Title:
THE BANK OF NEW YORK,
AS TRUSTEE
by
Name:
Title:
PAGE
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
No. $
% Senior Debenture Due 2006
CUSIP No.
Vanguard Cellular Systems, Inc., a North Carolina corporation,
promises to pay to , or registered assigns, the principal
sum of Dollars on
.
Interest Payment Dates: and .
Record Dates: and .
Additional provisions of this Security are set forth on the
other side of this Security.
VANGUARD CELLULAR
SYSTEMS, INC.,
by
-----------------------
Name:
Title:
-----------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
[SEAL] THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
<PAGE>
2
[FORM OF REVERSE SIDE OF SECURITY]
% Senior Debenture Due 2006
1. Interest
Vanguard Cellular Systems, Inc., a North Carolina corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. The Company will pay interest semiannually on and of each year. Interest
on the Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from . 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 at the rate borne by the Securities plus 1% per
annum, and it shall pay interest on overdue installments of interest at the same
rate to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the or next preceding the interest payment date even if
Securities are canceled after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States of America 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
Initially, The Bank of New York, a New York
banking corporation (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any
<PAGE>
3
Paying Agent, Registrar or co-registrar without notice. The Company or any of
its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of , 1996 (as supplemented by a First Supplemental Indenture dated as of April ,
1996 between the Company and the Trustee, the "Indenture"), between the Company
and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "Act"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms.
The Securities are general unsecured obligations of the
Company limited to $200,000,000 aggregate principal amount (subject to Section
2.9 of the Indenture). The Indenture imposes certain limitations on the ability
of the Company and its Restricted Subsidiaries to, among other things, make
certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
enter into or permit certain transactions with Affiliates, create or incur Liens
and make Asset Sales. The Indenture also imposes limitations on the ability of
the Company to consolidate or merge with or into any other Person or permit any
other Person to merge with or into the Company, or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the Property
of the Company.
5. Optional Redemption
The Securities may not be redeemed prior to __________, 2001.
On and after that date, the Company may redeem the Securities in whole at any
time or in part from time to time at the following redemption prices (expressed
in percentages of principal amount), plus accrued interest
<PAGE>
4
to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the related interest payment
date):
if redeemed during the 12-month period beginning
- -----------,
Period Percentage
2001 %
2002 %
2003 %
2004 and thereafter at 100%.
6. Notice of Redemption
At least 30 calendar days but not more than 60 calendar days
before a Redemption Date, the Company will send a notice of redemption,
first-class mail, postage prepaid, to Holders of Securities to be redeemed at
the addresses of such Holders as they appear in the Security Register.
If less than all of the Securities are to be redeemed at any
time, the Securities to be redeemed will be chosen by the Trustee in accordance
with the Indenture. If any Security 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 on such Interest
Payment Date to the Holder of the Security at the close of business on such
Record Date. If money in an amount sufficient to pay the Redemption Price of all
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent on or before the applicable Redemption Date and
certain other conditions are satisfied, interest on the Securities to be
redeemed on the applicable Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
<PAGE>
5
7. Repurchase of Securities at the Option of Holders upon
Change of Control
Upon the occurrence of a Change of Control Triggering Event
with respect to the Securities, each Holder of Securities shall have the right
to require the Company to purchase such Holder's Securities, in whole, or in
part in a principal amount that is an integral multiple of $1,000, pursuant to a
Change of Control Offer, at a purchase price in cash equal to 101% of the
principal amount thereof on any Change of Control Payment Date plus accrued and
unpaid interest, if any, to the Change of Control Payment Date.
Within 30 calendar days following any Change of Control
Triggering Event, the Company shall send, or cause to be sent, by first-class
mail, postage prepaid, a notice regarding the Change of Control Offer to the
Trustee and each Holder of Securities. The Holder of this Security may elect to
have this Security or a portion hereof in an authorized denomination purchased
by completing the form entitled "Option of Holder to Elect Purchase" appearing
below and tendering this Security pursuant to the Change of Control Offer.
Unless the Company defaults in the payment of the Change of Control Purchase
Price with respect thereto, all Securities or portions thereof accepted for
payment pursuant to the Change of Control Offer will cease to accrue interest
from and after the Change of Control Payment Date.
8. Repurchase of Securities at the Option of Holders upon
Asset Sale
If at any time the Company or any Restricted Subsidiary
engages in any Asset Sale, as a result of which the aggregate amount of Excess
Proceeds exceeds $15,000,000, the Company shall, within five Business days of
the date the amount of Excess Proceeds exceeds $15,000,000, use the
then-existing Excess Proceeds to make an offer to purchase from all Holders, on
a pro rata basis, Securities in an aggregate principal amount equal to the
maximum principal amount that may be purchased out of the then-existing Excess
Proceeds, at a purchase price in cash equal to 100% of the principal amount
thereof on any Purchase Date plus accrued and unpaid interest thereon, if any,
to the Purchase Date. Upon completion of a Prepayment Offer (including payment
for accepted Securities), any surplus Excess Proceeds that were the subject of
such offer shall cease to be Excess Proceeds,
<PAGE>
6
and the Company may then use such amounts for general
corporate purposes.
Within five Business days of the date the amount of Excess
Proceeds exceeds $15,000,000, the Company shall send, or cause to be sent, by
first-class mail, postage prepaid, a notice regarding the Prepayment Offer to
each Holder of Securities. The Holder of this Security may elect to have this
Security or a portion hereof in an authorized denomination purchased by
completing the form entitled "Option of Holder to Elect Purchase" appearing
below and tendering this Security pursuant to the Prepayment Offer. Unless the
Company defaults in the payment of the purchase price with respect thereto, all
Securities or portions thereof selected for payment pursuant to the Prepayment
Offer will cease to accrue interest from and after the Purchase Date.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
<PAGE>
7
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities and (ii) any past
Default and its consequences may be waived with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Company and the Trustee may amend
the Indenture or the Securities (i) to add additional covenants or to surrender
rights and powers conferred on the Company; (ii) to provide for uncertificated
Securities in addition to or in place of certificated Securities; (iii) to
secure the Securities; (iv) to cure any ambiguity, omission, defect or
inconsistency; (v) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or (vi) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA.
14. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities, subject to
certain limitations, may declare all the Securities to be immediately due and
payable. Certain events of bankruptcy or insolvency are Events of Default and
shall result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Securities may not enforce the
Indenture or the Securities except as provided in the
<PAGE>
8
Indenture. The Trustee may refuse to enforce the Indenture or the Securities
unless it receives reasonable indemnity or security. Subject to certain
limitations, Holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power under the Indenture.
The Holders of a majority in principal amount of the outstanding Securities, by
written notice to the Company and the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree, and if all Events of Default have been cured or waived
except nonpayment of principal and interest that has become due solely because
of the acceleration.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
<PAGE>
9
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. Governing Law
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security. Requests may be made to:
Vanguard Cellular Systems, Inc.
2002 Pisgah Church Road, Suite 300
Greensboro, North Carolina 27455
Attention: General Counsel
20. Ranking
The Securities will rank pari passu in right of payment with
all existing and future Senior Indebtedness of the Company and principal,
premium (if any) and interest with respect to the Securities will be senior in
right of payment with all future subordinated indebtedness of the Company.
<PAGE>
10
21. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers
in notices of redemption as a convenience to Securityholders. No representation
is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
<PAGE>
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The
agent may substitute another to act for him.
- ------------------------------------------------------------
- ---------
Date: ________________ Your Signature: _____________________
- ------------------------------------------------------------
- ---------
Sign exactly as your name appears on the other side of this Security.
Signature Guarantee:________________________________
(Signature must be guaranteed)
<PAGE>
12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security
purchased by the Company pursuant to Section 4.12 or 14.1 of
the Indenture, check the box: ( )
If you want to elect to have only part of
this Security purchased by the Company pursuant to
Section 4.12 or 14.1 of the Indenture, state the amount:
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:_______________________________________
(Signature must be guaranteed)
<PAGE>
April 4, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Vanguard Cellular Systems, Inc.
Registration Statement on Form S-3
File No. 33-61295
Gentlemen:
We have represented Vanguard Cellular Systems, Inc. (the
"Corporation"), a North Carolina corporation, in connection with the offer for
sale under the Securities Act of 1933, as amended (the "Act") of $200,000,000
aggregate principal amount of the Corporation's Senior Debentures due 2006 (the
"Debentures").
In such connection, we have examined the Corporation's Articles of
Incorporation, including all amendments thereto, its Bylaws, including all
amendments thereto, such of its other corporate records as we deemed necessary
or advisable for purposes of rendering this opinion, the Registration Statement
on Form S-3 relating to the Debentures and other securities of the Corporation
(the "Registration Statement") filed with the Securities and Exchange Commission
(the "Commission") on July 25, 1995, as amended by Amendments No. 1, 2 and 3 to
the Registration Statement filed with the Commission on September 11, 1995,
September 22, 1995 and October 2, 1995, respectively, including the Prospectus
therein (the "Prospectus"), the form of Senior Debenture Indenture included as
an exhibit to the Registration Statement as revised and supplemented by the form
of Senior Debenture Indenture and form of Supplemental Indenture included as
exhibits to the Corporation's current Report on Form 8-K filed today with the
Commission (the "Indenture"), and the Prospectus Supplement filed today with the
Commission relating to the Debentures (the "Prospectus Supplement").
<PAGE>
Securities and Exchange Commission
April 4, 1996
Page 2
Based on the foregoing, we are of the following opinions:
(1) The Indenture has been duly authorized by the Corporation and, when
duly executed and delivered by the parties thereto, will constitute a
valid and legally binding instrument of the Corporation;
(2) When the Debentures have been duly authorized, executed,
authenticated, issued, and delivered in accordance with the Indenture,
against payment therefor in accordance with the applicable underwriting
agreement, such Debentures will constitute valid and binding
obligations of the Corporation.
The opinions set forth hereinabove are subject to the following
limitations and qualifications:
(a) The enforceability of any obligation of the Corporation is
subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, and any similar laws
generally affecting creditors' rights and remedies and is also
subject to general principles of equity, including commercial
reasonableness, good faith, and fair dealing (regardless of
whether enforcement is sought at law or in equity).
(b) The Indenture contains a provision to the effect that the
acceptance by the Trustee or the holders of Debentures of a past
due installment by the Corporation shall not be deemed a waiver
of its or their right to accelerate. The North Carolina Court of
Appeals has held that, when a holder of an obligation regularly
accepts late payments, it is deemed to waive its right to
accelerate the debt because of late payments until it notifies
the maker of the obligation that prompt payments are again
required.
(c) North Carolina General Statute Section 6-21.2 sets forth
certain procedures and limitations applicable to the collection
of attorneys' fees, and our opinions are conditioned upon the
application of and compliance with those provisions.
(d) We express no opinion as to any provision of the Indenture
purporting to relieve the Trustee of the exercise of reasonable
diligence.
(e) We express no opinion (i) as to, and assume compliance with,
any applicable federal or state securities law or (ii) with
respect to the enforceability
<PAGE>
Securities and Exchange Commission
April 4, 1996
Page 3
of any provision of the Indenture pursuant to which any party is
indemnified against a liability arising under applicable
securities laws.
(f) We express no opinion as to the effectiveness of any of the
provisions of the Indenture whereby the Company purports to
waive procedural, substantive or constitutional rights or
provisions.
(g) The opinions set forth herein are limited to the laws of the
State of North Carolina as applied by courts located in North
Carolina. Pursuant to its terms, the Indenture is governed by
the laws of the State of New York; for purposes of this opinion
we have assumed, without independent investigation, that the
laws of the State of New York governing the Indenture are the
same as those which would govern the Indenture if it were
governed by the law of the State of North Carolina,
notwithstanding the choice of law provisions therein.
We hereby consent to the use of this opinion as an exhibit to the Form
8-K referred to hereinabove and filed with the Commission as required by the Act
and to any reference to this opinion or to our firm under the heading "Legal
Opinions" in the Prospectus Supplement. We do not, however, thereby admit that
we are within the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
SCHELL BRAY AYCOCK ABEL & LIVINGSTON L.L.P.
<PAGE>
<PAGE>
EXHIBIT 12
VANGUARD CELLULAR SYSTEMS, INC.
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
1990 1991 1992 1993 1994 1995 1994 1995
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net Loss....................... $(29,312) $(32,713) $(26,659) $(18,998) $(22,347) $ (7,013) $(4,298) $(8,484)
Add/(deduct):
Extraordinary item........... -- -- -- 3,715 8,402 -- -- --
Minority interest............ (359) (309) (304) 154 153 3 42 175
Interest expense............. 19,754 19,292 16,177 15,389 22,126 38,293 9,121 17,982
Interest component of rental
expense.................... 840 1,007 1,081 1,154 1,393 2,202 627 991
Equity method losses of less
than fifty percent owned
investees.................. -- -- -- -- -- 2,545 -- --
(9,077) (12,723) (9,705) 1,414 9,727 36,030 5,492 10,664
Fixed Charges (1):
Interest expense............... 19,754 19,292 16,177 15,389 22,126 38,293 9,121 17,982
Capitalized interest........... 1,046 716 188 188 684 1,300 369 623
Interest component of rental
expense...................... 840 1,007 1,081 1,154 1,393 2,202 627 991
21,640 21,015 17,446 16,731 24,203 41,795 10,117 19,596
Fixed charges in excess of
earnings..................... $(30,717) $(33,738) $(27,151) $(15,317) $(14,476) $ (5,765) $(4,625) $(8,932)
Ratio (2)........................ (N/A) (N/A) (N/A) (N/A) (N/A) (N/A) (N/A) (N/A)
</TABLE>
(1) The Company has no shares of preferred stock outstanding.
(2) Earnings for all periods were inadequate to cover fixed charges.
<PAGE>
