SECOND SUPPLEMENTAL INDENTURE, dated as of the 18th day of November, 1998,
(herein called the "Supplement"), between VANGUARD CELLULAR SYSTEMS, INC., a
corporation duly organized and existing under the laws of the State of North
Carolina (hereinafter referred to as the "Company"), and THE BANK OF NEW YORK, a
banking corporation duly organized and existing under the laws of the State of
New York (hereinafter referred to as the "Trustee"), as Trustee under the
Indenture dated as of April 1, 1996, between the Company and the Trustee as
amended, modified and supplemented by the First Supplemental Indenture dated as
of April 1, 1996 between the Company and the Trustee (as so modified, the
"Indenture"). Capitalized terms used in this Supplement and not otherwise
defined herein shall have the meanings set forth in the Indenture.
WHEREAS, the Company has previously issued 9-3/8% Senior
Debentures Due 2006 (the "9-3/8% Debentures") in accordance with the terms of
the Indenture; and
WHEREAS, the 9-3/8% Debentures constitute the only series of
Debentures issued and outstanding under the Indenture; and
WHEREAS, in accordance with Section 12.2 of the Indenture, the
Company and the Trustee may amend the Indenture or the 9-3/8% Debentures with
the written consent of the holders of at least a majority in principal amount of
the 9-3/8% Debentures; provided, that no such amendment may, without the consent
of each holder of 9-3/8% Debentures, (1) reduce the amount of 9-3/8% Debentures
whose holders must consent to such amendment, (2) reduce the rate of or extend
the time for payment of interest on any 9-3/8% Debenture, (3) reduce the
principal of or extend the Stated Maturity of any 9-3/8% Debenture, (4) reduce
the redemption premium payable on any 9-3/8% Debenture or change the time at
which any 9-3/8% Debenture may be redeemed, (5) make any 9-3/8% Debenture
payable in money other than Dollars, (6) subordinate in any manner the 9-3/8%
Debentures to any other obligation of the Company or (7) make any change to
Sections 7.5, 7.6 or 7.7 of the Indenture or to the second sentence of Section
12.2 of the Indenture; and
WHEREAS, the Company has offered to purchase any and all of
the 9-3/8% Debentures and has solicited consents from Holders of the 9-3/8%
Debentures to certain amendments to the Indenture pursuant to an Offer to
Purchase and Consent Solicitation dated November 4, 1998 (as the same may be
amended or extended from time in accordance with its terms, the "Offer to
Purchase");
WHEREAS, holders of a majority in principal amount of the
9-3/8% Debentures have consented to the amendments to the Indenture contained
herein; and
WHEREAS, the Company desires to amend the Indenture in
accordance with Section 12.2 thereof and has determined that the requirements of
Section 12.2 of the Indenture have been satisfied and has requested the Trustee
to join with it in the execution and delivery of this Supplement; all
requirements necessary to make this Supplement a valid instrument, in accordance
with its terms, have been met; and the execution and delivery hereof have been
in all respects duly authorized.
NOW, THEREFORE, for good and valuable consideration the
sufficiency of which is hereby recognized, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
AMENDMENTS TO THE INDENTURE
Section 1.1 Deletion of Certain Sections. Upon and following the
acceptance by the Company of 9-3/8% Debentures validly tendered and not
withdrawn in accordance with the procedures described in the Offer to Purchase,
the Company and Trustee hereby amend the Indenture for purposes of the 9-3/8%
Debentures to delete the text of each of the following Sections in its entirety
and replace such text with the words "[Intentionally Omitted]":
Section 4.3 - (Corporate Existence);
Section 4.4 - (Restrictions on Mergers, Sales and
Consolidations);
Section 4.6 - (Reports to Trustee and SEC);
Section 4.9 - (Limitation on Indebtedness);
Section 4.10 - (Limitation on Restricted Payments);
Section 4.11 - (Limitation on Liens);
Section 4.12 - (Limitation on Asset Sales);
Section 4.13 - (Limitation on Restrictions on
Distributions from Restricted Subsidiaries);
Section 4.14 - (Limitation on Transactions with Affiliates);
Section 4.15 - (Ownership of Vanguard Cellular Financial
Corp.);
Section 4.16 - (SEC Reports);
Section 7.1(3) (Events of Default - Failure to comply with
Section 10.1);
Section 7.1(6) (Events of Default - Cross Default);
Section 7.1(9) (Events of Default - Unsatisfied Judgments);
Section 10.1 (When Company May Merge or Transfer
Property); and
Section 14.1 (Purchase of the Option of Holders
Upon a Change of Control).
Section 1.2 Definitions. Upon and following the acceptance by the
Company of 9- 3/8% Debentures validly tendered and not withdrawn in accordance
with the procedures described in the Offer to Purchase, the Company and Trustee
hereby amend the Indenture for purposes of the 9-3/8% Debentures to delete each
defined term in the Indenture that is used only in the Sections of the Indenture
the text of which has been deleted pursuant to Section 1.1 hereof.
Section 1.3 Amendment of Certain Sections. Upon and following the
acceptance by the Company of 9-3/8% Debentures validly tendered and not
withdrawn in accordance with the procedures described in the Offer to Purchase,
the Company and Trustee hereby amend the Indenture for purposes of the 9-3/8%
Debentures to modify Section 7.1(4) of the Indenture to delete references to the
Sections listed in Section 1.1 of this Supplement. The Company and the Trustee
further amend the Indenture to delete each reference to a Section the text of
which has been deleted pursuant to Section 1.1 of this Supplement.
2
ARTICLE II
MISCELLANEOUS
Section 2.1 Effectiveness of Provisions. This Supplement shall be
effective and binding upon the Company, the Trustee and the Holders of 9-3/8%
Debentures as of the day and year first written above. If the Offer (as defined
in the Offer to Purchase) is withdrawn or terminated or if validly tendered (and
not withdrawn) Debentures are not accepted for payment or the Consent Payments
are not made on the Payment Date (each, as defined in the Offer to Purchase), in
each case in accordance with the terms and provisions of the Offer to Purchase,
the provisions of this Supplement shall be null and void and of no force or
effect whatsoever.
Section 2.2 Execution of Supplement. This Supplement is executed and
shall be construed as an indenture supplemental to the Indenture and, as
provided in the Indenture, this Supplement forms a part thereof.
Section 2.3 Conflict with Trust Indenture Act. If and to the extent
that any provision hereof limits, qualifies or conflicts with the duties imposed
by Sections 310 through 317, inclusive, of the Trust Indenture Act of 1939, as
amended, such imposed duties shall control.
Section 2.4 Successors and Assigns. All covenants and agreements in
this Supplement by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 2.5 Separability Clause. In case any one or more of the
provisions contained in this Supplement, the Indenture or in the Debentures of
any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Supplement, the Indenture or of such Debentures,
but this Supplement, the Indenture and such Debentures shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
Section 2.6 Benefits of Supplement. Nothing in this Supplement or in
the Indenture, express or implied, shall give to any person, other than the
parties hereto and their successors hereunder and the holders of Debentures (to
the extent specified herein or therein), any benefit or any legal or equitable
right, remedy or claim under this Supplement.
Section 2.7 Governing Law. This Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required thereby.
Section 2.8 Execution and Counterparts. This Supplement may be executed
in any number of counterparts, each of which shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 2.9 Miscellaneous. Except as expressly supplemented by this
Supplement, the Indenture shall remain unchanged and in full force and effect.
3
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: /s/ Stephen R. Leeolou
--------------------------------
Stephen R. Leeolou
President
By:/s/ Richard C. Rowlenson
--------------------------------
Richard C. Rowlenson
Secretary
THE BANK OF NEW YORK, as TRUSTEE
By: /s/ Mary Beth Lewicki
--------------------------------
Mary Beth Lewicki
Title: Assistant Vice President