EXHIBIT 10.9
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered into
as of November 5, 1999, by SPRINT SPECTRUM L.P. and its subsidiaries SPRINT
SPECTRUM EQUIPMENT COMPANY, L.P. and SPRINT SPECTRUM REALTY COMPANY, L.P., all
of which are Delaware limited partnerships (collectively, "Seller"), and
SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, a Virginia corporation ("Buyer").
Recitals
A. Seller owns or leases that certain property identified on the attached
Exhibit A (each a "Cell Site" and, collectively, the "Cell Sites"), the
longitude and latitude location of which are estimated and subject to variations
that customarily occur in building out cell sites under a radio frequency plan.
B. Buyer and Seller have entered into that certain Sprint PCS Management
Agreement dated November 5,1999 (the "Management Agreement"), to which this
Agreement is made an exhibit upon its execution by the parties and that
provides, among other things, that Buyer will purchase and Seller will sell the
Assets (as defined below), 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 each Cell Site and all assets, rights, benefits and
privileges (whether tangible or intangible) related to such Cell
Site (collectively, the "Assets"), free and clear from all liens
created by the Seller other than the Assumed Liabilities (as defined
below). The consummation of this transaction (the "Closing") will
occur, subject to the terms and conditions of this Agreement, on the
first to occur of either (a) January 31, 2000, or (b) the date on
which Manager obtains financing to acquire the Assets (the "Closing
Date").
2. Purchase Price. The purchase price for the Assets (the "Purchase
Price") will equal the sum of:
(i) $35,000 per cell site through lease execution;
(ii) $86,000 per cell site through notice to proceed (i.e., cell
site is construction ready); and
(iii) per cell site constructed as follows:
(a) $349,000 per cell site tower less than 100 feet tall,
(b) $396,000 per cell site tower between 100-200 feet tall,
(c) $357,000 per cell- site tower greater than 200 feet
tall,
(d) $282,000 per cell site co-locate,
(e) $297,000 per rooftop cell site, or
(f) $195,000 per build-to-suit cell site.
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 and will be priced accordingly.
The parties agree that, on or before the Closing Date, they
will determine the Purchase Price, based upon the then current stage
of development completion of each Cell Site as set forth above, and
will allocate the Purchase Price among the Assets accordingly, and
neither party will make any claim or treat any item on its tax
returns in a manner that is inconsistent with such allocation.
3. Review Period. (a) For a period of three weeks 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 of Seller under the contracts and
leases related to each and all of the Cell Sites, to the extent that
such liabilities, debts, expenses and obligations' relate to and
arise during the period after the Closing Date (the "Assumed
Liabilities"). Buyer agrees to pay and perform the Assumed
Liabilities when due. Buyer's assumption of the Assumed Liabilities
does not enlarge any rights of third parties under contracts or
arrangements with Buyer or Seller. Nothing in this Agreement
prevents Buyer from contesting in good faith any of the Assumed
Liabilities.
5. Condition of Assets. It is understood and agreed that 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 authority to convey the
Assets and Seller has not previously assigned, subleased or
otherwise conveyed that Asset 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 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.
6. Damage or Destruction. If prior to the Closing Date, any individual
Cell Site or Cell Sites are destroyed or substantially damaged by
fire, lightning or any other cause, or are taken by eminent domain
(or are 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 either (a) retaining any insurance proceeds or proceeds of
the taking by eminent domain, or (b) reducing the Purchase Price by
the amount thereof attributable to such Cell Site or Cell Sites by
delivering written notice thereof to Seller within twenty (20) days
after receiving written notice from Seller of such destruction,
damage or claim. The risk of loss will be borne by Seller until the
Closing Date.
7. Closing. On the Closing Date:
(a) Seller and Buyer shall execute and deliver to each other
an Assignment, Assumption and Bill of Sale in the form
attached hereto as Exhibit B;
(b) Buyer shall pay the Purchase Price to Seller in
immediately available funds;
(c) Buyer shall provide copies of all necessary consents; if
any, for the conveyance or assignment of the Assets.
If Buyer is unable to obtain from a landlord a release
of Seller from its obligations under a particular lease,
then Seller shall continue to administer the lease and
Buyer will pay to Seller, on a monthly basis, an amount
equal to $200 per month per lease until such time as the
landlord grants a release to Seller.
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 and Buyer's 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.
8. 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.
9. 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.
10. 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.
11. Severability. In the event anyone 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.
12. 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.
13. 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.
14. 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.
15. 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.
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IN WI1NESS 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: /S/ Bernie Bianchino
------------------------------
Name: Bernie Bianchino
Title: Chief Business Development
Officer
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P.
By: /S/ Bernie Bianchino
------------------------------
Name: Bernie Bianchino
Title: Chief Business Development
Officer
SPRINT SPECTRUM REALTY COMPANY, L.P.
By: /S/ Bernie Bianchino
------------------------------
Name: Bernie Bianchino
Title: Chief Business Development
Officer
BUYER: SHENANDOAH PERSONAL COMMUNICATIONS
COMPANY
By: /S/ Christopher E. French
------------------------------
Name: Christopher E. French
Title: President