ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered into as
of May 19, 2000, by SPRINT SPECTRUM L.P., SPRINT SPECTRUM REALTY COMPANY, L.P.,
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P., PHILLIECO, L.P., all of which are
Delaware limited partnerships, SPRINTCOM, INC., a Kansas corporation, and
SPRINTCOM EQUIPMENT COMPANY, L.P., a Delaware limited partnership (collectively,
"Seller"), and Horizon Personal Communication, Inc., an Ohio corporation
("Buyer").
Recitals
A. Seller owns or leases those cell sites identified on the attached
Exhibit A (the "Cell Sites").
B. Buyer desires to acquire the Cell Sites and certain other assets of
Seller with respect to the Cell Sites, and assume the Assumed Liabilities (as
defined in Section 4 below), and Seller desires to sell such Cell Sites and
assets and have Buyer assume the Assumed Liabilities, upon the terms and
conditions set forth in this Agreement.
Agreements
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement the parties hereto agree as follows:
1. Transfer of Assets. Subject to the terms and conditions of this
Agreement, Seller agrees to sell, convey and assign to Buyer, and
Buyer agrees to purchase from Seller, all of Seller's right,
title and interest in the Cell Sites, and all contractual rights
and remedies of Seller (if any and to the extent transferable by
Seller) against service providers who have provided services for
which they have been compensated with respect to the Cell Sites
(collectively, the "Assets"), free and clear from all liens
created by Seller other than the Assumed Liabilities. The final
closing will occur on September 30, 2000; provided, however,
that, upon ten (10) business days prior written notice, Buyer
will have the right, from time to time, assuming the required
landlord consents have been obtained, to purchase clusters of
assets prior to September 30, 2000, by paying the full Purchase
Price for such assets to Seller (each closing being referred to
as the "Closing").
2. Purchase Price. The purchase price for the Assets (the "Purchase
Price") will equal the sum of:
(i) $41,475 per Cell Site through lease execution;
(ii) $100,725 per Cell Site through notice to proceed (i.e., Cell
Site is construction-ready);
(iii)per Cell Site constructed (without optimization) as follows:
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(a) $412,722 per Cell Site tower less than 100 feet tall,
(b) $471,177 per Cell Site tower between 100-200 feet tall,
(c) $461,366 per Cell Site tower greater than 200 feet
tall,
(d) $346,306 per Cell Site co-locate,
(e) $368,012 per rooftop Cell Site, or
(f) $230,483 per build-to-suit Cell Site;
(iv) per Cell Site constructed (with optimization) as follows:
(a) $421,610 per Cell Site tower less than 100 feet tall,
(b) $480,064 per Cell Site tower between 100-200 feet tall,
(c) $470,224 per Cell Site tower greater than 200 feet
tall,
(d) $355,194 per Cell Site co-locate,
(e) $376,900 per rooftop Cell Site, or
(f) $239,370 per build-to-suit Cell Site;
(v) per cell Site constructed (excluding any base transmission
station) as follows:
(a) $249,500 per Cell Site tower less than 100 feet tall,
(b) $295,361 per Cell Site tower between 100-200 feet tall,
(c) $274,273 per Cell Site tower greater than 200 feet
tall,
(d) $211,813 per Cell Site co-locate,
(e) $233,520 per rooftop Cell Site, or (f) $233,520 per
rooftop Cell Site; and
(vi) per Cell Site located on a tower retained by Seller as
follows:
(a) $137,952 per Cell Site tower less than 100 feet tall,
(b) $148,368 per Cell Site tower between 100-200 feet tall,
or
(c) $157,859 per Cell Site tower greater than 200 feet
tall.
Each Cell Site will be allocated to only one stage of development
completion, as described above. Cell Sites in a state of partial
stage completion will be brought to full completion of such stage
by Seller prior to Closing and will be priced accordingly.
The parties acknowledge that Seller may, in its sole discretion,
retain towers owned by it, and Buyer will locate its equipment on
such tower sites.
The parties agree that, on or before the Closing Date, they shall
determine an allocation of the Purchase Price among the Assets,
which allocation will be the result of arm's-length negotiations
between the parties as to the price of each item or category of
items of the Assets, and neither party will make any claim or
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treat any item on its tax returns in a manner that is
inconsistent with such allocation.
3. Review Period. For a period of 30 days commencing on the date
this Agreement is executed by both parties (the "Review Period"),
Buyer and its representatives may review such documents and make,
or cause to be made by agents or contractors of Buyer's choosing,
any and all physical, mechanical, environmental, structural or
other inspections of the Assets as Buyer deems appropriate and as
maintained in the ordinary course by Seller. For purposes of such
review and inspection, Seller will make available to Buyer and
Buyer's representatives, all documents and records relating to
the Assets and the Assumed Liabilities, and shall afford Buyer
and Buyer's representatives reasonable access to the Assets and
Assumed Liabilities, all during normal business hours.
(b) If, in Buyer's reasonable discretion, based upon the results of
Buyer's review and inspection of the Assets, Buyer determines
that up to, but no more than, three individual Cell Sites are
unsatisfactory to Buyer, Buyer may by written notice delivered to
Seller within the Review Period, which notice contains a specific
description of the unsatisfactory condition, request that such
unsatisfactory condition as to such Cell Site(s) be rectified by
Seller. Seller will, within 30 days after receiving Buyer's
written notice described above, at Seller's election as to each
unsatisfactory Cell Site individually, either (i) correct the
unsatisfactory condition, (ii) renegotiate with Buyer the
Purchase Price only as attributable to such unsatisfactory Cell
Site, or (iii) remove the unsatisfactory Cell Site from the
Assets, with a corresponding reduction in the Purchase Price in
proportion to the amount thereof attributable to the
unsatisfactory Cell Site. If Buyer does not provide the above
described notice to Seller within the Review Period, Buyer will
be deemed to have waived its rights under this Paragraph 3. In no
event will Buyer be relieved of its obligations under this
Agreement, with regard to more than three Cell Sites.
4. Assumption of Liabilities. Buyer agrees to assume all
liabilities, debts, expenses and obligations arising after the
Closing Date in, to, under or pursuant to the Assets as of the
Closing Date (the "Assumed Liabilities") and to pay and perform
the Assumed Liabilities when due. Nothing in this Agreement
prevents Buyer from contesting in good faith any of the Assumed
Liabilities.
5. Representations and Warranties. The Seller entities, jointly
and severally, represent and warrant to Buyer as follows (which
representations and warranties shall survive the Closing):
(a) Organization. SprintCom, Inc. is a corporation duly
organized, validly existing and in good standing under the
laws of the state of Kansas. Each other Seller entity is a
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limited partnership duly organized, validly existing and in
good standing under the laws of the state of Delaware. Each
Seller entity is qualified to conduct business in all states
where such respective entity conducts business through the
use of the Assets. (b) Authorization. Each Seller entity has
the full power and authority (i) to own and operate the
Assets to enter into and perform their obligations under
this Agreement and the documents, instruments and
certificates to be executed and delivered by such entities
pursuant to this Agreement. The execution, delivery and
performance of this Agreement by each Seller entity and all
documents, instruments and certificates made or delivered by
each such entity pursuant to this Agreement, and the
transactions contemplated hereby, have been duly authorized
by all requisite action on the part of each respective
Seller entity. (c) Enforceability. The terms and provisions
of this Agreement and all documents, instruments and
certificates made or delivered by the Seller entities
hereunder constitute valid and legally binding obligations
of the respective Seller entities, enforceable against the
respective Seller entities in accordance with the terms
hereof and thereof, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting generally the enforcement of
creditors' rights and by general principles of equity.
6. Condition of Assets. It is understood and agreed that, except as
provided in this Agreement, Seller is not making and specifically
disclaims any warranties or representations of any kind or
character, express or implied, with respect to the Assets,
including, but not limited to, warranties or representations as
to matters of title (except that Seller represents and warrants
that Seller has not previously conveyed or assigned any of the
Assets to any other party), zoning, tax consequences, physical or
environmental conditions, availability of access, operating
history or projections, valuation, governmental approvals,
governmental regulations or any other matter or thing relating to
or affecting the Assets including, without limitation: (i) the
value, condition, merchantability, marketability, profitability,
suitability or fitness for a particular use or purpose of the
Assets; (ii) the manner or quality of the construction or
materials incorporated into any of the Assets and (iii) the
manner, quality, state of repair or lack of repair of the Assets.
Buyer agrees that with respect to the Assets, Buyer has not
relied upon and will not rely upon, either directly or
indirectly, any representation or warranty of Seller or any agent
of Seller other than as specifically set forth in this Agreement.
Buyer represents that it is a knowledgeable purchaser and that it
is relying solely on its own expertise and that of Buyer's
consultants, and that Buyer will conduct such inspections and
investigations of the Assets, including, but not limited to, the
physical and environmental conditions thereof, and shall rely
upon same, and, upon closing, shall assume the risk that adverse
matters, including, but not limited to, adverse physical and
environmental conditions, may not have been revealed by Buyer's
inspections and investigations. Buyer acknowledges and agrees
that upon closing, Seller shall sell and convey to Buyer and
Buyer shall accept the Assets "as is, where is" with all faults,
and Buyer further acknowledges and agrees that there are no oral
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agreements, warranties or representations, collateral to or
affecting the Assets by Seller, any agent of Seller or any third
party. The terms and conditions of this paragraph shall expressly
survive the Closing.
7. Damage or Destruction. If prior to the Closing Date, any of the
Assets are destroyed or substantially damaged by fire, lightning
or any other cause, or all or any part of the Assets is taken by
eminent domain (or is the subject of a pending or contemplated
taking which has not been consummated), Seller will immediately
deliver to Buyer written notice of such event or condition, and
Buyer will have the option of (a) enforcing this Agreement and
retaining any insurance proceeds or proceeds of the taking by
eminent domain, or (b) terminating this Agreement with respect to
the Assets that were destroyed or substantially changed by
written notice within twenty (20) days after receiving written
notice from Seller of such destruction, damage or claim. If this
Agreement is terminated with respect to any Asset destroyed or
substantially damaged, neither party will have any further
obligation under this Agreement with respect to such Asset. The
risk of loss will be borne by Seller until the Closing Date.
8. Closing. If Buyer does not terminate the Agreement pursuant to
Paragraph 7 of this Agreement, on the Closing Date:
(a) Seller and Buyer shall execute and deliver to each other an
Assignment of Leases and Bill of Sale;
(b) Buyer shall pay the Purchase Price to Seller in immediately
available funds; and
(c) Seller shall provide copies of all necessary consents, if
any, for the conveyance or assignment of the Assets. Seller
will assist Buyer in obtaining consents and releases from
landlords.
Buyer is responsible for paying or causing to be paid all
transfer, stamp, recording, sales, use, excise or similar taxes,
fees or duties payable in connection with the sale, assignment or
conveyance of Seller's interest in and to the Assets or the
assumption of the Assumed Liabilities.
Buyer is also responsible for reporting all taxable property to
the appropriate taxing authority for ad valorem tax purposes.
Buyer will pay as and when due all taxes, assessments, liens,
encumbrances, levies and other charges against the real estate,
personal property and intangible property that is sold,
transferred, assigned or otherwise conveyer to Buyer pursuant to
this agreement.
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9. Further Assurances. Seller will from time to time at the request
of Buyer, do, make, execute, acknowledge and deliver all such
other instruments of conveyance, assignment, and transfer, in
form and substance satisfactory to Seller, as Buyer may
reasonably require for the more effective conveyance and transfer
of any of the Assets.
10. Indemnification. Breaches of this Agreement by either Buyer or
Seller will be a breach for which the non-breaching party is
entitled to indemnification in accordance with the terms and
conditions and utilizing the procedures set forth in the
Management Agreement.
11. Entire Agreement and Binding Effect. This Agreement and the
exhibits and schedules attached to this Agreement (which are
incorporated by this reference) and the Management Agreement,
including all addenda thereto, contain the entire agreement
between the parties hereto with respect to the acquisition of the
Assets and the other transactions contemplated herein, and
supersedes all prior agreements or understandings between the
parties hereto relating to the subject matter hereof. All
exhibits attached hereto are incorporated herein by this
reference.
12. Severability. In the event any one or more of the provisions
contained in this Agreement or any application thereof is
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this
Agreement and any other application thereof will not in any way
be affected or impaired thereby. Paragraph headings herein or in
any exhibit hereto have no legal significance and are used solely
for convenience of reference.
13. No Other Representations and Warranties. Seller makes no
representation or warranty to Buyer with respect to the Assets,
except as expressly set forth in this Agreement.
14. Waivers and Notices. Any term or condition of this Agreement may
be waived at any time by the party entitled to the benefit
thereof by a written instrument. No delay or failure on the part
of any party in exercising any rights hereunder, and no partial
or single exercise thereof, will constitute a waiver of such
rights or of any other rights hereunder. All notices, consents,
requests, instructions, approvals and other communications
provided for herein will be validly given, made or served if
given, made or served in accordance with the Management
Agreement.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will constitute an original but all
of such counterparts taken together will constitute only one
Agreement.
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16. Governing Law. The internal laws of the State of Missouri
(without regard to principles of conflicts of law) govern the
validity of this agreement, the construction of its terms, and
the interpretation of the rights and duties of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
SELLER: SPRINT SPECTRUM L.P.
By:_____________________________________
Bernard A. Bianchino,
Senior Vice President and Chief Business
Development Officer - Sprint PCS
SPRINT SPECTRUM REALTY COMPANY, L.P.
By:_____________________________________
Bernard A. Bianchino,
Senior Vice President and Chief Business
Development Officer - Sprint PCS
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P.
By:_____________________________________
Bernard A. Bianchino,
Senior Vice President and Chief Business
Development Officer - Sprint PCS
PHILLIECO, L.P.
By: PhillieCo Sub, L.P.,
its General Partner
By: PhillieCo Partners I, L.P.,
its General Partner
By: Sprint Enterprises, L.P.,
its General Partner
By: US Telecom, Inc.
its General Partner
By:_____________________________________
Don A. Jensen,
Vice President and Secretary
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SPRINTCOM, INC.
By:_____________________________________
Bernard A. Bianchino,
Senior Vice President and Chief Business
Development Officer - Sprint PCS
SPRINTCOM EQUIPMENT COMPANY, L.P.
By:_____________________________________
Bernard A. Bianchino,
Senior Vice President and Chief Business
Development Officer - Sprint PCS
BUYER: HORIZON PERSONAL COMMUNICATIONS, INC.
By:_____________________________________
Name:______________________________
Title:_____________________________
LIST OF SCHEDULES AND EXHIBITS
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Exhibit or Attachment Description
- --------------------- -----------
2.1 Asset Purchase Agreement
Exhibit A List of Cell Sites
Exhibit B Assignment of Leases and Bill of Sale
Exhibit C Consent and Release