Exhibit 10.5
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered into
as of December __, 1999, by SPRINT SPECTRUM L.P., SPRINT SPECTRUM EQUIPMENT
COMPANY, L.P. and SPRINT SPECTRUM REALTY COMPANY, L.P., XXX COMMUNICATIONS PCS,
L.P., COX PCS LEASING CO., L.P., all of which are Delaware limited partnerships,
and XXX PCS ASSETS, LLC, a Delaware limited company (together "Seller"), and
UbiquiTel Holdings, Inc., a Delaware corporation ("Buyer").
Recitals
A. Seller or one of Seller's subsidiaries owns or leases those certain
property, equipment and contract rights identified as follows (collectively the
"Assets"):
1. That equipment and property of Seller located in the Spokane BTA and
identified on attached Exhibit A (the "Spokane Assets"); and
2. That equipment and property of Seller located in BTAs outside of the
Spokane BTA and identified on attached Exhibit B (the "Additional Assets").
B. Buyer and Seller have entered into that certain Addendum II dated
December __,, 1999 to the Sprint PCS Management Agreement dated October 15, 1998
(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, 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 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 or before
April 15, 2000 (the "Closing Date").
2. Purchase Price. The purchase price of the Assets (the "Purchase
Price") will be equal to the sum of the following: ****
**** Confidential material omitted and filed separately with the Commission.
The parties agree that, on or before the Closing Date, and insofar
as it has not been calculated as part of the Purchase Price, 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 treat any item on its tax returns in a manner that is
inconsistent with such allocation.
3. Review Period. For a period extending for thirty (30) days after
this Agreement has been executed by both parties ("Review Period"),
Buyer 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. If, in Buyer's reasonable
discretion, based upon the results of Buyer's inspections, Buyer
determines that the Assets are unsatisfactory to Buyer, Buyer may by
written notice to Seller within the Review Period, terminate this
Agreement, and upon such termination, neither party will have any
further rights or obligations under this Agreement. Any termination
notice provided to Seller must contain a specific description of the
condition on which Buyer bases such termination. If Buyer does not
terminate this Agreement by such notice within the Review Period,
this Agreement will remain in full force and effect in accordance
with its terms. Buyer may not elect to purchase less than all of the
Assets.
4. Assumption of Liabilities. Buyer agrees to assume all liabilities,
debts, expenses and obligations now existing or hereafter arising
in, to, under or pursuant to the Assets as of the Closing Date,
including, without limitation, all liabilities, debts, expenses and
obligations relating to all the Assets (the "Assumed Liabilities")
and 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 not previously conveyed, pledged, encumbered,
hypothecated or assigned 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
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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 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 by written notice
within twenty (20) days after receiving written notice from Seller
of such destruction, damage or claim. If this Agreement is
terminated, neither party will have any further obligation under
this Agreement. The risk of loss will be borne by Seller until the
Closing Date.
7. Closing. If Buyer does not terminate the Agreement pursuant to
Paragraph 3 or 6 of this Agreement, on the Closing Date:
(a) Seller and Buyer shall execute and deliver to each other an
Assignment of Leases and Xxxx of Sale in the form attached
hereto as Exhibit D
(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. Such consents
to be in the form of Consent and Release attached hereto as
Exhibit E.
For each cell site which is the subject of this Asset Purchase
Agreement and for which a release of Sprint PCS' obligations cannot
be obtained prior to the Closing Date, Sprint PCS, in its sole
discretion, may continue to be obligated under any existing leases
or purchase obligations for any such cell sites subject to (1)
receipt of a consent from the landlord or seller of the cell site
consenting to the
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assumption of the leasehold or purchase obligation by Manager and
(2) execution of an agreement setting forth the obligations of
Manager with respect to each such cell site for which a release
cannot be obtained and containing terms and conditions acceptable to
Sprint PCS.
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 conveyed 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.
Seller's obligations hereunder shall be subject to receipt of the
Consents and
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. AU exhibits attached hereto are
incorporated herein by this reference.
11. 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.
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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.
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__________________________________________
Xxxxxxx X. Xxxxxxxxx
Chief Business Development Officer
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P.
By__________________________________________
Name:___________________________________
Title:__________________________________
SPRINT SPECTRUM REALTY COMPANY, L.P.
By__________________________________________
Name:___________________________________
Title:__________________________________
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COX PCS COMMUNICATIONS, L.P.
By__________________________________________
Name:___________________________________
Title:__________________________________
PCS LEASING CO., L.P.
By__________________________________________
Name:___________________________________
Title:__________________________________
XXX PCS ASSETS, LLC
By__________________________________________
Name:___________________________________
Title:__________________________________
BUYER: UBIQUITEL HOLDINGS, INC.
By__________________________________________
Name:___________________________________
Title:__________________________________
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Exhibit A
The Spokane Assets
The following sets forth the Spokane Assets:
1. Cell site and base station assets:
Listed by Cascade Number and state of development as shown on the attached
Spokane District Inventory List Summary.' In summary, the status of
Spokane sites as of December 23, 1999 follows.
****
See attached inventory list for On Air sites.
2. Switch Assets listed as follows:
There is one switch in Spokane:
****
Spokane, WA
See attached inventory list for the switch.
3. Retail Assets listed as follows:
SPCS Retail Store:
00000 X. Xxxxxxx
Xxxxxxx, XX 00000
(000 000 0000)
SPCS Kiosk:
0000 X. Xxxxxxxx
Xxxxxxx, XX 00000
(000 000 0000)
SPCS Field Operations Office:
00000 X. Xxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Inventory list to be provided prior to Closing Date.
4. Spares, test equipment and tools.
See attached inventory list.
**** Confidential portions omitted and filed separately with the Commission.
5. Certain assets which may be physically located in the Spokane BTA but are
maintained by Sprint PCS as part of its national asset base are not
included in the transfer. These assets include, for example, the
following:
-Portable generators
-Any Cell on Wheels (COW)
6. The parties agree that the inventory lists provided by Sprint PCS under
and as part of this exhibit have not been confirmed by a physical
inventory of the assets by Sprint PCS but simply reflect the asset
inventories as maintained in the books and records of Sprint PCS. Buyer
shall assume all risk of any discrepancy between the inventory list as
provided by Sprint PCS and the actual assets, equipment and spares as may
be found in the Spokane BTA. Buyer shall have the right of inspection
prior to Closing as provided for under the Agreement to determine the
extent, if any, of this risk.
7. The parties agree that Sprint PCS shall retain ownership and control of
any cell site located in the Spokane BTA which is (a) owned in fee simple,
(b) for which Sprint PCS has a ground lease, or (c) for which Sprint PCS
has the right to co-locate any users of the site in addition to Sprint PCS
or Manager. For each such site Sprint PCS shall sell the equipment located
at the site as provided for under the terms of the Agreement and, after
Closing, Sprint PCS shall lease the site to Manager at market lease rates
for sites of a similar nature located in the Spokane BTA subject to the
execution of a Master Lease Agreement between Manager and Sprint Sites
USA.
**** Confidential portions omitted and filed separately with the Commission.
