THIS DOCUMENT IS A COPY OF THE EXHIBIT 4(D)(1) TO FORM 10-Q
FILED ON MAY 15, 1996 PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
ASSIGNMENT, BILL OF SALE, AND ASSUMPTION AGREEMENT
THIS AGREEMENT, BILL OF SALE, AND ASSUMPTION AGREEMENT is made and
entered into by and between Vanguard Cellular Systems, Inc., a North Carolina
corporation (the "Parent Company"), and Vanguard Cellular Financial Corp., a
North Carolina corporation and a subsidiary of the Parent Company (the
"Financial Corp."), to evidence the transfer, effective on April 9, 1996, by the
Parent Company to the Financial Corp. of all of the Parent Company's assets,
subject to the Financial Corp.'s assumption of the Parent Company's current
liabilities and of its liabilities for deferred taxes and deferred compensation.
1. Definitions. As used herein, the following terms have the following
meanings unless the context otherwise required:
(a) "Assets" means all of the Parent Company's right, title
and interest in and to any and all of its corporate assets of every
kind and description, real, personal and mixed, tangible and
intangible, known and unknown, contingent or otherwise, including,
without limitation, all of its land, buildings, equipment, furniture
and fixtures, appliances, motor vehicles, agreements, leases, accounts
receivable and other evidences of indebtedness, securities, cash, cash
equivalents, bank accounts, deposits, refunds, claims, causes of
action, contract rights, customer orders, purchase orders, permits and
licenses. Without limiting the generality of the foregoing, Assets
shall include the machinery, equipment, furniture, fixtures and other
items of personal property described in the personal property list
attached hereto as Schedule A and the certain contractual rights
included in these assigned agreements on Schedule B.
(b) "Liabilities" means all of the Parent Company's current
liabilities as of the Effective Time, as determined in accordance with
generally accepted accounting principles, whether known or unknown and
whether accrued or contingent, and all of the Parent Company's
liabilities for deferred taxes and deferred compensation as of the
Effective Time.
(c) "Effective Time" means 12:01 a.m. on April 9, 1996.
2. Conveyances. The Parent Company hereby grants, bargains, sells,
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conveys, assigns, transfers and deliveries all of the Assets to the Financial
Corp., at and as of the Effective Time. TO HAVE AND TO HOLD all and singular the
said Assets hereby granted, bargained, sold, conveyed, assigned, transferred and
delivered unto the Financial Corp., its successors and assigns forever.
Notwithstanding the foregoing, if the conveyance and assignment attempted to be
made hereunder of any agreement, lease, permit, license, right, claim or other
Asset would be ineffective as between the Parent Company and the Financial Corp.
without the consent of a third party, or would serve as a cause for terminating
or invalidating any such agreement, lease, permit, license, right, claim or
other Asset or would cause or serve as a cause for the loss of ownership
thereof, then such Asset is excluded from the aforesaid conveyance and
assignment, and the Parent Company, shall, to the greatest extend permitted,
hold such Asset for the exclusive use and benefit of the Financial Corp. until
such consent has been obtained. Upon the obtaining of such consent, no further
conveyance or assignment shall be required, but full and complete title to such
Asset shall automatically become vested in the Financial Corp. by virtue of this
instrument.
3. Acceptance of Assets. The Financial Corp. accepts the Assets at and
as of the Effective Time and in consideration of the transfer thereof.
4. Assumption of Liabilities. The Financial Corp. hereby assumes and
agrees to pay, perform and fully discharge all of the Liabilities and to
indemnify, defend and hold harmless the Parent Company, its successors and
assigns, of and from any and all liabilities, costs and expenses, including
court costs and attorneys' fees, incurred by the Parent Company from and after
the Effective Time and based upon or arising out of the Liabilities hereby
assumed.
5. No Warranties. The Assets are conveyed to the Financial Corp. "AS
IS", and THE PARENT COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, CONDITION, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
6. Sales Taxes and Recording Fees. The parties agree that the Financial
Corp. shall pay all sales, use and similar taxes, if any, arising out of the
sales, conveyances, assignments, transfers and deliveries made hereunder or
pursuant hereto and shall pay all documentary, filing and recording fees
required in connection therewith.
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7. Employees. At and as of the Effective Time, all employees employed
by the Parent Company shall cease being employees of the Parent Company and
shall become employees of the Financial Corp. In connection therewith, the
Parent Company and the Financial Corp. shall take such action as may be
necessary in order for the Financial Corp. to adopt and continue in effect all
of the employee benefit plans and programs sponsored by the Parent Company
immediately prior to the Effective Time.
8. Further Assurances. From time to time after the Effective Time, and
without any further consideration, the Parent Company will execute and deliver
such instruments of conveyance, assignment, transfer and delivery, and take such
other action , as the Financial Corp. may reasonably request in order more
effectively to vest in the Financial Corp. beneficial and record title to the
Assets.
9. Power of Attorney. The Parent Company does hereby constitute and
appoint the Financial Corp., its successors and assigns, the true and lawful
attorney of the Parent Company with full power of substitution for it and in its
name, place and stead or otherwise but on behalf of the Parent Company, its
successors an assigns, and for the benefit of the Financial Corp., its
successors and assigns, to demand and receive from time to time any and all
property and assets, real, personal, and mixed, tangible and intangible, hereby
conveyed and assigned (or intended to be conveyed and assigned) and to execute
in the name of the Parent Company, its successors and assigns, deeds,
assignments and other instruments of further assurance and to give receipts and
releases in respect of the same, and from time to time to institute and
prosecute in the name of the Parent Company for the benefit of the Financial
Corp. any and all proceedings at law, in equity or otherwise which the Financial
Corp., its successors and assigns, may deem proper in order to collect, assert
or enforce any claims, rights or title of any kind in and to the Assets hereby
conveyed and assigned (or intended to be conveyed and assigned) and to defend
and compromise any and all actions, suits or proceedings in respect of any of
said Assets and to do any and all such other acts and things in furtherance of
this Assignment, Bill of Sale, and Assumption Agreement as the Financial Corp.,
its successors or assigns, shall deem advisable. The Parent Company hereby
declares that the appointment hereby made and the powers hereby granted are
coupled with an interest and are and shall be irrevocable and perpetual and
shall not be terminated by any act of the Parent Company or its successors or
assigns or by operation of law.
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10. Binding Effect. This Assignment, Bill of Sale, and Assumption
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
11. Integration. This instrument constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings with respect thereto.
12. Applicable Law. This instrument shall be governed by and construed
and enforced in accordance with the laws of the State of North Carolina.
IN WITNESS WHEREOF, the Parent Company and the Financial Corp. have
caused this instrument to be executed under seal by their duly authorized
officers.
ATTEST: VANGUARD CELLULAR SYSTEMS, INC.
By: /s/ Richard C. Rowlenson By: /s/ Haynes G. Griffin
Title: Assistant Secretary Title: President
ATTEST: VANGUARD CELLULAR FINANCIAL
CORP.
By: /s/ Richard C. Rowlenson By: /s/ Haynes G. Griffin
Title: Assistant Secretary Title: President
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