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Exhibit 10.23
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into this 14th day of August,
1998 by and among AIRADIGM COMMUNICATIONS, INC., a Wisconsin corporation
("Airadigm") and SPECTRASITE COMMUNICATIONS, INC., a Delaware corporation
("SpectraSite").
WHEREAS, Airadigm is a wireless communications company which provides
PCS service;
WHEREAS, Airadigm leases real property ("Site" or collectively "Sites")
upon which Airadigm has constructed certain improvements including, but not
limited to towers and related facilities;
WHEREAS, Airadigm desires to assign, sell and convey to SpectraSite
certain leases, towers and related facilities in conjunction with the forty
seven (47) Sites;
WHEREAS, Airadigm desires to lease space on the Sites from SpectraSite
subsequent to the sale of the Sites to SpectraSite;
WHEREAS, SpectraSite desires to purchase, and Airadigm desires to sell
certain towers and related facilities, contract rights, property rights and
leasehold interests.
NOW THEREFORE, Airadigm and SpectraSite do hereby agree as follows:
1. ASSETS PURCHASED. Airadigm agrees to grant, bargain, sell, convey and
assign to SpectraSite and SpectraSite agrees to purchase from Airadigm, on the
terms and conditions set forth in this Agreement Airadigm's entire right, title
and interest in and to the following:
(a) those ground leases specified in Schedule I attached hereto
("Prime Leases") together with any and all easements for ingress, egress and
utilities which are attendant to the Prime Leases;
(b) those towers, tower foundations, utilities, fences, landscaping
and other improvements owned by Airadigm which are constructed upon the real
property described in the Prime Leases (collectively "Tower Facilities")
specified in Schedule III attached hereto;
(c) those subleases, licenses and other agreements which grant others
a right to use or occupy a portion of the real property described in the Prime
Leases or grant a right to use or occupy space on the Tower Facilities owned by
Airadigm which are located on the real property described in the Prime Leases
("Collocation Agreements"). Said Collocation Agreements are specified in
Schedule IV attached hereto;
(d) the following items for each Site (to the extent available and
assignable):
(i) the Federal Aviation Administration application,
responses, approvals and registration numbers submitted or received
by Airadigm;
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(ii) the zoning permits and approvals, variances, building
permits and such other federal, state or local governmental approvals
which have been gained or for which Airadigm has made application;
(iii) the construction, engineering and architectural drawings
and related site plan and surveys pertaining to the construction of
the Tower Facilities;
(iv) the geotechnical report which has been commissioned by
Airadigm;
(v) the title reports, commitments for title insurance,
ownership and encumbrance reports, title opinion letters, copies of
instruments in the chain of title or any other information which may
have been produced regarding title to the Site;
(vi) the environmental assessments including phase I reports
and any environmental reports involving contemporaneous or subsequent
intrusive testing, the "FCC Checklist" performed pursuant to NEPA
requirements and any other information which may have been produced
regarding the environmental condition of the Sites or neighboring
real property; and
(vii) any other information written or otherwise regarding the
due diligence investigation made by Airadigm or its agents,
independent contractors or employees regarding the Site.
The items described in paragraphs 1(d) may hereinafter be collectively referred
to as "Due Diligence Items" and shall be more particularly described in the
Assignment of Prime Lease for each Site, a copy of the prototype Assignment of
Prime Leases is attached hereto as Attachment A. The Prime Leases, Tower
Facilities, Collocation Agreements and Due Diligence Items may hereinafter be
collectively referred to in this Agreement as the "Assets". Between the date of
this Agreement and the Closing Date, Airadigm will promptly disclose to
SpectraSite in writing any information set forth in the representations,
warranties, covenants and Schedules herein that is no longer materially accurate
for any reason or any such information that would render such representations,
warranties, covenants or Schedules materially inaccurate if made or delivered on
any date between the date hereof and the Closing Date. On and after the Closing
Date Airadigm agrees to give such further assurances and to execute, acknowledge
and deliver such bills of sale, deeds, assignments, acknowledgements and other
instruments of conveyance and transfer and other documents and do such other
acts and things as in the judgment of SpectraSite shall be necessary and
reasonable to effectively vest in SpectraSite the full legal and equitable title
of the Assets that are transferred to SpectraSite under this Agreement, free and
clear of all liens and encumbrances.
2. LIABILITIES ASSUMED.
(a) Except as otherwise provided below, SpectraSite agrees at Closing to
assume and pay, discharge or perform, as appropriate, only the liabilities and
obligations of Airadigm specifically itemized on Schedule V hereto ("Assumed
Liabilities").
(b) SpectraSite shall not be obligated to assume, agree to pay,
discharge or perform, or incur, as the case may be, any liability other than the
Assumed Liabilities.
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3. PURCHASE PRICE.
(a) The purchase price for the Assets shall be Eleven Million Seven
Hundred Fifty Thousand and No/100 Dollars ($11,750,000.00) ("Purchase Price").
The purchase price for the Assets shall be paid by SpectraSite at Closing
subject to any sums placed in escrow for towers which remain uncompleted as of
the date of this Agreement as set forth below. The operation of Airadigm's Tower
Facilities, Prime Leases and Collocation Agreements to the close of business
through the Closing Date shall be for the account of Airadigm and thereafter for
the account of SpectraSite. Expenses, including but not limited to utilities,
personal property taxes, rents, and real property taxes, shall be prorated
between Airadigm and SpectraSite as of the close of business on the Closing
Date, the proration to be made and paid, insofar as reasonably possible, on the
Closing Date, with settlement of any remaining items to be made within sixty
(60) days following the Closing Date.
(b) At closing, Airadigm will identify in writing those Sites as to
which a Tower has not yet been completed. A portion of the purchase price shall
be deposited into escrow with U.S. Bank National Association, Milwaukee,
Wisconsin ("Bank"). The amount deposited shall equal the product of the number
of Sites so identified times $100,000. Airadigm shall be responsible at its own
cost for the completion of the Tower Facilities at each such Site on or before
September 30, 1998. At such time as SpectraSite certifies to the Bank that all
such Sites have been completed in accordance herewith, the Bank shall release
the escrow to Airadigm; if such certification has not been given before
September 30, 1998, SpectraSite will certify to the Bank the number and identity
of the Sites as to which the Tower Facilities have been completed in accordance
herewith, and the Bank shall release the portion of the escrow related to such
Sites to Airadigm, and shall return the remainder to SpectraSite, whereupon such
Sites shall be deemed removed from this Agreement, and the parties will execute
such documents as are reasonably required by counsel in order to remove such
incomplete Sites from this Agreement nunc pro tunc, with appropriate settlement
of accounts for amounts advanced during such interim period. Notices shall be in
writing and a copy shall simultaneously be given to Airadigm. If SpectraSite
fails to give any notice, all Sites deemed approved. The escrow shall be
deposited into an interest bearing account, and the interest with respect to
each $100,000 increment of the escrow shall be disbursed to the party receiving
such increment. The costs of the escrow shall be borne equally by the parties.
(c) Within 15 days following the closing, SpectraSite shall deliver
written notice to Airadigm identifying those sites which SpectraSite has
rejected pursuant to paragraph 9 hereof specifying the reasons for such
rejection. Airadigm shall then have a period of 60 days in which to take actions
to cure such defects. If and to the extent that Airadigm has not substantially
completed such cures with respect to any Site, Airadigm shall return to
SpectraSite the sum of $250,000 for each such Site, whereupon such Sites shall
be deemed removed from this Agreement, and the parties will execute such
documents as are reasonably required by counsel in order to remove such Sites
from this Agreement nunc pro tunc, with appropriate settlement of accounts for
amounts advanced during such interim period. If any such Site is also the
subject of the escrow described above, the portion of the purchase price related
thereto and held in escrow shall not be remitted until the escrow breaks as
above.
(d) Airadigm shall pay the August, 1998, rents under the Prime Leases,
and shall be entitled to reimbursement for the prorated amount thereof at the
time of closing.
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4. CLOSING.
(a) Time and Place. The closing ("Closing") of the sale and purchase of
the Assets shall take place on the ___the day of August, 1998 ("Closing Date"),
or at such other time as the parties may agree in writing. If Closing has not
occurred on or prior to the ____ day of August, 1998, then either party may
elect to terminate this Agreement within five (5) days after the Closing Date.
If no such election is tendered within said five (5) day period, the parties
will waive the right to thereafter terminate this Agreement. If, however, the
Closing has not occurred because of a breach of contract, the breaching party
shall remain liable for breach of contract.
(b) Obligations of Airadigm at the Closing. At the Closing, Airadigm
shall deliver to SpectraSite the following:
(i) one or more assignments of leases conveying all of the Prime
Leases to SpectraSite in substantially the same form as set forth in
Attachment A;
(ii) one or more bills of sale from Airadigm conveying all of the
Tower Facilities to SpectraSite, in substantially the same form as set
forth in Attachment B;
(iii) one or more assignments of leases conveying all of the
Collocation Agreements to SpectraSite in substantially the same form as
set forth in Attachment C;
(iv) a copy of the resolutions of Airadigm's board of directors and
shareholders, authorizing the execution, delivery and performance of
this Agreement and any other agreement to be entered into by Airadigm in
connection herewith, and the transactions contemplated hereby;
(v) all necessary consents of third parties, including without
limitation, the consent of the lessors under the Prime Leases to be
assigned to and assumed by SpectraSite hereunder; and
(vi) such other assignments, bills of sale, or instruments of
conveyance, certificates of officers, and other documents as reasonably
may be requested by SpectraSite prior to the Closing to consummate this
Agreement and the transactions contemplated hereby; and
(vii) releases in a form reasonably acceptable to SpectraSite from
all parties who hold liens encumbering the Assets.
(c) Obligations of SpectraSite at the Closing. At the Closing,
SpectraSite shall execute, or cause to be executed, and shall deliver to
Airadigm such certificates of officers and other documents as reasonably may be
requested by Airadigm prior to the Closing to consummate this Agreement and the
transactions contemplated hereby.
(d) upon Closing, Airadigm and SpectraSite shall execute the Master
Tower Attachment Lease Agreement in substantially the same form as is attached
hereto as Attachment D.
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5. AIRADIGM'S OPERATION OF BUSINESS PRIOR TO CLOSING. Between the date
of this Agreement and the Closing Date, Airadigm will:
(a) Continue to operate the business that is the subject of this
Agreement in the usual and ordinary course and in substantial conformity with
all applicable laws, ordinances, regulations, rules, or orders, and will use its
best efforts to preserve its business organization and preserve the continued
operation of its business with its customers, suppliers, and others having
business relations with Airadigm.
(b) Not assign, sell, sublease, lease, license or otherwise transfer or
dispose of any of the Assets, whether now owned or hereafter acquired.
(c) Maintain all of its Assets in their present condition, reasonable
wear and tear and ordinary usage excepted.
(d) Maintain all governmental permits and approvals affecting the Sites
or the operation of the Tower Facilities.
6. ACCESS TO SITE AND INFORMATION. At reasonable times prior to the
Closing Date, Airadigm will provide SpectraSite and its representatives with
reasonable access during business hours to the assets, titles, contracts, and
records of Airadigm relating solely to the Assets and furnish such additional
information concerning Airadigm's business as SpectraSite from time to time may
reasonably request relating solely to the Assets.
7. REPRESENTATIONS AND WARRANTIES OF AIRADIGM. Airadigm represents and
warrants to SpectraSite as follows:
(a) Corporate Existence. Airadigm is now, and on the Closing Date will
be, a corporation duly organized, validly existing and in good standing under
the laws of the State of Wisconsin, has all requisite corporate power and
authority to own its properties and assets and carry on its business and is good
standing in each jurisdiction in which such qualification is required.
(b) Corporation Power and Authorization. Airadigm has full corporate
authority to execute and deliver this Agreement and any other agreement to be
executed and delivered by Airadigm in connection herewith, and to carry out the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate and shareholder action. No other corporate
proceedings by Airadigm will be necessary to authorize this Agreement or the
carrying out of the transactions contemplated hereby. This Agreement constitutes
a valid and binding Agreement of Airadigm in accordance with its terms.
(c) Conflict with Other Agreements, Consents and Approvals. With respect
to (i) the articles of incorporation or bylaws of Airadigm, (ii) any applicable
law, statute, rule or regulation, (iii) any contract to which Airadigm is a
party or may be bound, or (iv) any judgment, order, injunction, decree or ruling
of any court or governmental authority to which Airadigm is a party or subject,
the execution and delivery by Airadigm of this Agreement and any other agreement
to be executed and delivered by Airadigm in connection herewith and the
consummation of the transactions contemplated hereby will not (a) result in any
violation, conflict or default, or give to others any interest or rights,
including rights of termination, cancellation or acceleration, (b) require any
authorization, consent, approval, exemption or other action by
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any court or administrative or governmental body which has not been obtained, or
any notice to or filing with any court or administrative or governmental body
which has not been given or done, or (c) require the consent of any third party
except as may be disclosed by Airadigm in writing to SpectraSite within ten (10)
days of the execution of this Agreement.
(d) Compliance with Laws. Airadigm's use and occupancy of the Assets,
wherever located, has been in compliance with all applicable federal, state,
local or other governmental laws or ordinances, the non-compliance with which,
or the violation of which, might have a material adverse affect on the Assets,
the Assumed Liabilities, and Airadigm has received no claim or notice of
violation with respect thereto. Airadigm has obtained all material permits,
licenses, franchises and other authorizations necessary for the conduct of its
business.
(e) Litigation. Airadigm has no knowledge of any claim, litigation,
proceeding, or investigation pending or threatened against Airadigm that might
result in any material adverse change in the condition of Assets being conveyed
under this Agreement.
(f) Brokerage. Airadigm has not employed any broker, finder or similar
agent other than Xxxxxxx & Associates in connection with the transactions
contemplated by this Agreement, or taken action that would give rise to a valid
claim against any party for a brokerage commission, finder's fee, or similar
compensation. Airadigm shall indemnify and hold harmless SpectraSite from and
against any brokerage commission, finder's fee or similar compensation due
Xxxxxxx & Associates. Each party will indemnify the other from and against any
commissions or other such claims made by any persons claiming through or by such
party.
(g) Site Acquisition Airadigm has performed the following tasks or
obtained the following governmental approvals (or will perform or obtain the
same on or before September 30, 1998) as the case may be for each Site:
(i) filed and obtained from the Federal Aviation Administration
registration numbers for the tower;
(ii) filed and obtained or has otherwise complied with any and all
necessary federal, state and local governmental laws, regulations and
ordinances including but not limited to zoning permits and approvals,
variances, building permits and such other federal, state or local
governmental approvals which were required for the development of the
Tower Facilities;
(iii) engaged an engineer licensed in the state of Wisconsin to
prepare construction, engineering and architectural drawings and related
site plan and surveys pertaining to the construction of the Tower
Facilities;
(iv) obtained a geotechnical report;
(v) obtained title reports, commitments for title insurance,
ownership and encumbrance reports, title opinion letters, copies of
instruments in the chain of title or any other information
which may have been produced regarding title to the Property and the
Easements; and
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(vi) conducted environmental assessments including phase I reports
and any reports involving contemporaneous or subsequent intrusive
testing, the "FCC Checklist" performed pursuant to NEPA requirements and
any other information which may have been produced regarding the
environmental condition of the Site, any easements or neighboring real
property.
(h) Environmental Compliance. Airadigm warrants and represents that, to
the knowledge of Airadigm as knowledge is defined in the following sentence,
the Sites, the easements and the improvements on the Sites thereon are free of
contaminants, oils, asbestos, PCB's, hazardous substances or wastes as defined
by federal, state or local environmental laws, regulations or administrative
orders or other materials the removal of which is required or the maintenance of
which is prohibited, regulated or penalized by any federal, state or local
governmental authority based upon the quantity, quality or manner of presence as
of the date hereof ("Hazardous Materials"). Airadigm's knowledge is limited to
that disclosed in the Phase I and Phase II reports, if any, which were obtained
by Airadigm at the time of its acquisition of the Prime Lease for each Site.
(i) Title and No Defaults. Airadigm represents and warrants the
following with regard to each Site:
(i) it has a good, valid and enforceable leasehold interest in and
to the Sites which are the subject of the Prime Leases and the Prime
Leases are and remains valid and in full force and effect;
(ii) it has good, valid and enforceable title to the Tower
Facilities free and clear of any liens, encumbrances or mortgages;
(iii) that there have been no prior assignments of the Prime Leases;
(iv) the Prime Leases have not been amended or modified in any
manner other than as set forth in the Prime Leases;
(v) Airadigm has paid in full as of the date of this Agreement all
sums due and owing those vendors which have performed services or
provided materials in conjunction with each Site including but not
limited to the costs incurred in the preparation of the Due Diligence
Items except with respect to Sites as to which an escrow is established
where Airadigm shall make all such payments;
(vi) Airadigm is not in default under any of the terms of any of the
Prime Leases, and Airadigm has not received actual or constructive
notice of the existence of any event which, with the passage of time or
the giving of notice or both, would constitute a default by Airadigm
under any of the Prime Leases. All applicable rent and other charges and
payments due the lessor under the Prime Leases have been paid in full
through the date hereof (except reimbursements for real estate taxes,
insurance, utilities or other reimbursements, if any, due for fiscal
periods to the extent not yet payable) and shall continue to be paid
when due through the Closing Date;
(vii) Neither Airadigm nor the sublessee, licensee or occupant under
the Collocation Agreement are in default under any of the terms of the
Collocation Agreement, and Airadigm has not received actual or
constructive notice of the existence of any event which, with the
passage of time or the giving of notice or both, would constitute a
default under the Collocation Agreement.
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All applicable rent and other charges and payments due Airadigm from the
sublessee, lessee, licensee or occupant under the Collocation Agreements
have been paid in full through the date hereof (except reimbursements
for real estate taxes, insurance, utilities or other reimbursements, if
any, due for fiscal periods to the extent not yet payable), no rent has
been paid in advance on any Collocation Agreement, no Collocation
Agreement has been assigned or pledged as collateral by Airadigm and the
lessee, sublessee or licensee under all Collocation Agreements have no
defense, right to off-set against Airadigm.
(j) Accuracy of Representations and Warranties. None of the
representations or warranties of Airadigm contain or will contain any untrue
statement of a material fact or omit or will omit or misstate a material fact
necessary in order to make statements in this Agreement not misleading. Airadigm
knows of no fact that has resulted, or that in the reasonable judgment of
Airadigm will result in a material change in the business, operations, or assets
of Airadigm that has not been set forth in this Agreement or otherwise disclosed
to SpectraSite. No knowledge of independent contractors engaged by Airadigm
shall be imputed to Airadigm unless such information was disclosed by said
independent contractor to Airadigm prior to fifteen (15) days after the Closing
Date.
8. REPRESENTATIONS AND WARRANTIES OF SPECTRASITE. SpectraSite
represents and warrants as follows:
(a) Corporate Existence. SpectraSite is now, and on the Closing Date
will be, a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, has all requisite corporate power and
authority to enter into this Agreement and perform its obligations hereunder.
(b) Authorization. SpectraSite has full corporate authority to execute
and deliver this Agreement and any other agreement to be executed and delivered
by SpectraSite in connection herewith, and to carry out the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate and shareholder action. No other corporate
proceedings by SpectraSite will be necessary to authorize this Agreement or the
carrying out of the transactions contemplated hereby. This Agreement constitutes
a valid and binding Agreement of SpectraSite in accordance with their terms.
(c) Conflict with Other Agreements, Consents and Approvals. With respect
to (i) the articles of incorporation or bylaws of SpectraSite, (ii) any
applicable law, statute, rule or regulation, (iii) any contract to which
SpectraSite is a party or may be bound, or (iv) any judgment, order, injunction,
decree or ruling of any court or governmental authority to which SpectraSite is
a party or subject, the execution and delivery by SpectraSite of this Agreement
and any other agreement to be executed and delivered by SpectraSite in
connection herewith and the consummation of the transactions contemplated hereby
will not (a) result in any violation, conflict or default, or give to others any
interest or rights, including rights of termination, cancellation or
acceleration, or (b) require any authorization, consent, approval, exemption or
other action by any court or administrative or governmental body which has not
been obtained, or any notice to or filing with any court or administrative or
governmental body which has not been given or done.
(d) Brokerage. SpectraSite has not employed any broker, finder or
similar agent in connection with the transactions contemplated by this
Agreement, or taken action that would give rise to a valid claim against any
party for a brokerage commission, finder's fee, or similar compensation.
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(e) Accuracy of Representations and Warranties. None of the
representations or warranties of SpectraSite contain or will contain any untrue
statement of a material fact or omit or will omit or misstate a material fact
necessary in order to make the statements contained herein not misleading.
9. CONDITIONS PRECEDENT TO SPECTRASITE'S OBLIGATIONS. SpectraSite shall
be entitled to reject any Site and require a prorata refund of the Purchase
Price in the event that SpectraSite is unable to satisfy each of the following
conditions pursuant to paragraph 3(c) of this Agreement pursuant to paragraph
3(c) of this Agreement, any one or portion of which may be waived in writing by
SpectraSite:
(a) Representations, Warranties and Covenants of Airadigm. The
representations and warranties of Airadigm contained herein and the information
contained in the Schedules and any other documents delivered by Airadigm in
connection with this Agreement shall be true and correct in all material
respects at the Closing; and Airadigm shall have performed all obligations and
complied with all agreements, undertakings, covenants and conditions required by
this Agreement to be performed or complied with by it or prior to the Closing.
Airadigm covenants that it shall negotiate in good faith to consummate and
execute a Master Design Build Lease Agreement to govern the acquisition, design,
construction and lease of prospective Sites by SpectraSite on behalf of
Airadigm.
(b) Licenses and Permits. SpectraSite shall have obtained all licenses
and permits from public authorities necessary to authorize the ownership and
operation of the Tower Facilities and the Assets.
(c) Consents. SpectraSite shall have obtained the consent of the lessor
under the Prime Leases (if required by the Prime Leases) to the assignments of
such agreements to SpectraSite.
(d) Conditions of the Business. There shall have been no material
adverse change in the manner of operation of the Assets prior to the Closing
Date.
(e) No Suits or Actions. At the Closing Date no suit, action, or other
proceeding shall have been threatened or instituted to restrain, enjoin, or
otherwise prevent the consummation of this Agreement or the contemplated
transaction.
(f) Ground Leases. SpectraSite shall have reviewed and found acceptable
in SpectraSite's sole discretion, the terms of the underlying ground leases
including, but not limited to, the amount of rent payable, the duration of the
lease, and the assignability of the lease.
(g) Governmental Approvals. SpectraSite securing appropriate approvals
for SpectraSite's intended use of the Property from the Federal Communications
Commission, the Federal Aviation Administration and any other federal, state or
local regulatory authority having jurisdiction over SpectraSite's proposed use
of each Site;
(h) Investigation of Title. SpectraSite shall have the right to obtain a
title report or commitment for a title policy from a title insurance company of
its choice for each Site or to rely upon any investigation of title made by or
on behalf of Airadigm. If, in the opinion of the SpectraSite, such title report
shows any defects of title or liens or encumbrances which adversely affect
SpectraSite's use of or SpectraSite's ability to obtain financing, SpectraSite
shall have the right to avoid the assignment of the Assets for that Site;
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(i) Surveys. SpectraSite shall have the right to have each Site surveyed
and to have structural tower studies, radio frequency engineering and other
engineering analyses performed. In the event that any defects are shown by the
survey or the engineering analyses, which in the opinion of SpectraSite, may
adversely affect SpectraSite's use of a Site, SpectraSite shall have the right
to avoid the assignment of the Assets for that Site immediately upon written
notice to Lessor; and
(j) Environmental Assessments. SpectraSite shall have the right to have
an environmental assessment of the Site performed by an environmental consulting
firm of SpectraSite's choice. If the environmental audit reveals that a Site is
contaminated with Hazardous Materials, as that term is hereinafter defined,
SpectraSite shall have the right to avoid the assignment of the Assets for that
Site; and
SpectraSite's inability to successfully satisfy these conditions or the
occurrence of any other event which effectively prohibits SpectraSite's intended
use of a Site shall at the option of SpectraSite entitle SpectraSite to reject a
Site and to receive a refund of $250,000 per Site, as its exclusive remedy.
10. Conditions Precedent to Obligations of Airadigm and SpectraSite.
Both parties' obligation to close the transactions contemplated herein is
conditioned upon Airadigm obtaining, at its cost, approval by Ericsson, Inc.
("Ericsson") of the form of this Agreement and the transactions herein, and
releases by Ericsson and Oneida Enterprise Development Authority ("OEDA") of the
Assets to be purchased herein from the security interests held by them.
SpectraSite will cooperate in fulfilling this condition by executing and
delivering such consents and acknowledgments as Ericsson may reasonably request
concerning the new security interests to be granted by Airadigm to Ericsson in
the interests of Airadigm to be created under the Master Tower Attachment Lease
Agreement. Promptly after closing, Airadigm shall at its cost cause the releases
from Ericsson and OEDA to be filed or recorded as appropriate.
11. TERMINATION. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated by written notice of
termination at any time before the Closing Date only as follows:
(a) By mutual consent of Airadigm and SpectraSite, without liability;
(b) By SpectraSite, upon written notice to Airadigm, given at any time
before the Closing Date if the representations and warranties of Airadigm
contained herein were materially incorrect when made or would be materially
incorrect on the Closing Date or, if Airadigm has materially violated any
covenants contained in Paragraph 8, or if any other material agreement contained
in this Agreement and required to be performed by Airadigm on or prior to the
Closing Date has not been performed and such breach, violation or
non-performance is not cured by Airadigm within fourteen (14) days of such
notification of intent to terminate;
(c) By Airadigm, upon written notice to SpectraSite, given at any time
before the Closing Date if the representations and warranties of SpectraSite
contained in this Agreement were materially incorrect when made or would be
materially incorrect on the Closing Date, or if any other material agreement
contained herein and required to be performed by SpectraSite on or prior to the
Closing Date has not been performed and such breach, violation or
non-performance is not cured within fourteen (14) days of such notification of
intent to terminate;
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(d) By either Airadigm or SpectraSite in writing, without liability, if
any governmental or third party consent, authorization or approval has been
denied or refused or if there shall be any order, writ, injunction or decree of
any court or governmental or regulatory agency binding on SpectraSite or
Airadigm from consummating the transactions contemplated hereby, provided that
SpectraSite and Airadigm shall have used their best efforts to have any such
order, writ, injunction or decree lifted and the same shall not have been lifted
within thirty (30) days after entry, by any such court or governmental or
regulatory agency;
(e) By SpectraSite, without liability, upon written notice to Airadigm,
given at any time before the Closing Date, if any of the conditions precedent
set forth in Paragraph 9 hereof have not occurred and such failure to occur is
not cured within fourteen (14) days of such notification of intent to terminate.
12. RISK OF LOSS. The risk of loss, damage, or destruction to the Assets
including any of the equipment, inventory, or other personal property to be
conveyed to SpectraSite under this Agreement shall be borne by Airadigm to the
time of Closing. In the event of such loss, damage, or destruction, Airadigm, to
the extent reasonable, shall replace the lost property or repair or cause to
repair the damaged property to its condition prior to the damage. If
replacement, repairs, or restorations are not completed prior to Closing, then
the escrow under Paragraph 3(b) shall be increased with respect to each such
Site in accordance with Paragraph 3(b) of this Agreement. Airadigm shall
maintain fire and extended coverage casualty insurance through and including the
date of Closing covering all of the Tower Facilities in an amount not less than
the full replacement value of all of the Tower Facilities. Airadigm shall
receive all such insurance proceeds for any loss occurring prior to Closing and
such Site shall no longer be subject to this Agreement, and the Purchase Price
shall be reduced by $250,000 for each such site. Risk of loss shall be borne by
SpectraSite for those existing sites which are transferred to SpectraSite at
closing. Risk of loss for any sites which are not constructed as of the closing
date shall remain with Airadigm until the completion of construction.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Agreement shall survive the Closing of this Agreement,
except that any party to whom a representation or warranty has been made in this
Agreement shall be deemed to have waived any misrepresentation or breach of
representation or warranty of which such party had knowledge prior to Closing.
Any party learning of a misrepresentation or breach of representation or
warranty under this Agreement shall immediately give written notice thereof to
all other parties to this Agreement.
14. INDEMNIFICATION BY AIRADIGM.
(a) Airadigm hereby agrees to indemnify and hold SpectraSite, its
successors, and assigns harmless from and against:
(i) Any and all damages, losses, claims, liabilities,
deficiencies and obligations of every kind and description, contingent
or otherwise, arising out of or related to the operation of Airadigm's
business as it relates to Tower Assets and any acts or omissions of
Airadigm prior to Closing which materially impact SpectraSite, except
for damages, losses, claims, liabilities, deficiencies and obligations
of Airadigm expressly assumed by SpectraSite under this Agreement or
paid by insurance maintained by Airadigm,
(ii) any liability or obligation of Airadigm which is not an
Assumed Liability,
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(iii) any and all damage or deficiency resulting from
any misrepresentation, breach of warranty or covenant, or
nonfulfillment of any agreement on the part of Airadigm under
this Agreement, and
(iv) any and all actions, suits, claims, proceedings,
investigation, audits, demands, assessments, fines, judgments,
costs and other expenses (including, without limitation,
reasonable audit and attorneys fees) incident to any of the
foregoing;
(v) any and all losses, damages, fines, penalties or
costs of any kind which may arise from the improper design,
maintenance or operation of the Tower Facilities or tower
lighting systems, or which may otherwise be imposed by the FAA,
FCC or any other federal, state or local agency arising from the
improper design, maintenance or operation of the Tower or tower
lighting systems unless such obligations arise solely as a
result of the installation of the Equipment on the Tower;
(vi) any and all environmental damages arising from the
presence of Hazardous Materials upon, about or beneath a Site or
migrating from a Site or arising in any manner whatsoever out of
Airadigm's operations or use which are in violation of any
environmental requirements pertaining to a Site and any
activities thereon, which conditions exist or exited prior to or
at the time of the execution of this Agreement or which
contamination occurred at any time prior to the Closing Date;
(b) Notwithstanding the obligation of Airadigm to
indemnify SpectraSite pursuant to subparagraph 13 (a)(vi) of
this Agreement, Airadigm shall, upon demand of SpectraSite, and
at Airadigm's sole cost and expense, promptly take all actions
to remediate a Site which are required by any federal, state or
local governmental agency or political subdivision or which are
reasonably necessary to mitigate environmental damages or to
allow full economic use of a Site, which remediation is
necessitated from the presence upon, about or beneath a Site of
a Hazardous Material prior to the Closing Date. Such actions
shall include but not be limited to the investigation of the
environmental condition of the Site, the preparation of any
feasibility studies, reports or remedial plans, and the
performance of any cleanup, remediation, containment, operation,
maintenance, monitoring or actions necessary to restore the Site
to the condition existing prior to the introduction of Hazardous
Materials upon, about or beneath the Site to the standards
required under applicable law or governmental policies.
(c) Airadigm's indemnity obligations under Section 13 shall be
subject to the following:
(i) If any claim is asserted against SpectraSite that
would give rise to a claim by SpectraSite against Airadigm for
indemnification under the provisions of this Section, then
SpectraSite shall promptly give written notice to Airadigm
concerning such claim and Airadigm shall, at no expense to
SpectraSite, defend the claim.
(ii) Airadigm shall not be required to indemnify
SpectraSite as to any Site for an amount that exceeds $250,000
per Site.
(d) Limitations on Idemnifiable Damages.
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(i) Tax Provision. In computing the amount of
indemnifiable damages payable to SpectraSite, there shall be
deducted therefrom an amount equal to the income tax savings, if
any, to which SpectraSite becomes entitled from the income tax
deduction or deferral, if any, to which SpectraSite shall become
entitled as a consequence of any loss, claim, damage, liability,
cost, expense or deficiency giving rise to such indemnifiable
damages.
(ii) Insurance Proceeds; Claims Against Third Parties.
In computing the amount of indemnifiable damages payable to
SpectraSite, there shall be deducted therefrom an amount equal
to the sum of (i) insurance proceeds to which SpectraSite
becomes entitled as a consequence of any loss, claim, damage,
liability, cost, expense or deficiency giving rise to such
indemnifiable damages, or (ii) all claims against third parties
which would reduce the amount of such indemnifiable damages,
regardless of whether or not SpectraSite actually attempts to
collect such amounts. SpectraSite shall in good faith pursue and
attempt to collect all insurance proceeds and all claims against
third parties which would reduce indemnifiable damages.
(iii) Knowledge of SpectraSite. SpectraSite shall not
be entitled to recover indemnifiable damages with respect to any
matter (including any breach of this Agreement by Airadigm)
which was known by or disclosed to SpectraSite at or prior to
the date which is fifteen days after Closing. If Airadigm proves
by a preponderance of the evidence that, as of the date which is
fifteen days after Closing, SpectraSite had actual knowledge of
the matter which forms a basis for SpectraSite's claim for
indemnifiable damages and SpectraSite then elected not to reject
the Site within fifteen (15) days after closing the transactions
contemplated hereby, then SpectraSite shall be deemed to have
waived its claim for indemnifiable damages with respect to such
matter.
(e) Survival of Indemnification. Airadigm's obligation to pay
indemnifiable damages to SpectraSite shall survive the Closing Date, as follows:
(i) Fraudulent Breach of Representations. In the case of a claim
based upon the inaccuracy or breach of a representation or warranty which was
made fraudulently, indefinitely; and
(ii) All Other Claims. In the case of all other claims, for a
period commencing on the date hereof and ending two (2) years after the Closing
Date.
No claim for recovery of indemnifiable damages may be asserted
by SpectraSite after the expiration of the applicable time period described in
the foregoing Sections 13(f)(i)-(ii).
15. INDEMNIFICATION BY SPECTRASITE. SpectraSite agrees to defend,
indemnify, and hold harmless Airadigm from and against:
(a) any and all claims, liabilities, and obligations of every kind and
description arising out of or related to the operation of the business following
Closing or arising out of SpectraSite's failure to perform obligations of
Airadigm assumed by SpectraSite pursuant to this Agreement;
(b) after the Closing, any liability or obligation of Airadigm which is
an Assumed Liability,
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(c) any and all damage or deficiency resulting from any material
misrepresentation, breach of warranty or covenant, or nonfulfillment of any
agreement on the part of SpectraSite under this Agreement, and
(d) any and all actions, suits, claims, proceedings, investigation,
audits, demands, assessments, fines, judgments, costs and other expenses
(including, without limitation, reasonable audit and attorneys fees) incident to
any of the foregoing.
16. CONFIDENTIAL INFORMATION. If for any reason the sale of Assets is
not closed, SpectraSite will not disclose to third parties any confidential
information received from Airadigm in the course of investigating, negotiating,
and performing the transactions contemplated by this Agreement and will return
all such information on request.
17. MISCELLANEOUS PROVISIONS.
(a) Notices. Any notice under this Agreement shall be in writing and
shall be effective when actually delivered in person or reviewed by the party at
the address stated in this Agreement or such other address as either party may
designate by written notice to the other.
SpectraSite: SpectraSite Communications, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
Attention: Xxxxx Xxxxx
With a copy to: Xxxxxxxx & Xxxxxxx, PLC
Plaza West Building
000 Xxxxx XxXxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Airadigm: Airadigm Communications, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attn: Vice President, Finance
With a copy to: Airadigm Communications, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attn: Central Administration
or at any other address as any party may, from time to time, designate by notice
given in compliance with this section.
(b) Time. Time is of the essence of this Agreement.
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(c) Survival. Any of the terms and covenants contained in this Agreement
which require the performance of either party after the Closing shall survive
the Closing.
(d) Waiver. Failure of either party at any time to require performance
of any provision of this Agreement shall not limit the party's right to enforce
the provision, nor shall any waiver of any breach of any provision be a waiver
of any succeeding breach of any provision or a waiver of the provision itself
for any other provision.
(e) Assignment. Except as otherwise provided within this Agreement,
neither party hereto may transfer or assign this Agreement without prior written
consent of the other party.
(f) Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin.
(g) Attorney Fees. In the event an arbitration, suit or action is
brought by any party under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
(h) Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
(i) Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
(j) Pronouns and Plurals. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the Person or Persons may require.
(k) Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
(l) Prior Agreements. This document is the entire, final and complete
agreement of the parties pertaining to the option to purchase of the Property,
and supersedes and replaces all prior or existing written and oral agreements
(including any xxxxxxx money agreement) between the parties or their
representatives relating to the Property.
(m) Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
(n) Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of this Agreement.
(o) Good Faith, Cooperation and Due Diligence. The parties hereto
covenant, warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the
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performance of all obligations of the parties pursuant to this Agreement. All
promises and covenants are mutual and dependent.
(p) Counterparts. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to the original or the
same counterpart.
(q) Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
(r) Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
IN WITNESS WHEREOF, the SpectraSite and Airadigm have executed this
Asset Purchase Agreement as of the date and year first above written.
SPECTRASITE COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: CEO
(CORPORATE SEAL)
AIRADIGM COMMUNICATIONS, INC.
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
(CORPORATE SEAL)
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ATTACHMENT "A"
ASSIGNMENT OF PRIME LEASE
THIS ASSIGNMENT OF PRIME LEASE AGREEMENT ("Agreement") is made and
entered into as of the _____ day of ____________, 1998, by and between
SpectraSite Communications, Inc., a Delaware corporation ("SpectraSite"), and
Airadigm Communications, Inc., a Wisconsin corporation ("Airadigm").
WHEREAS, Airadigm has entered into a ground lease agreement, Lease
Agreement or other similar agreement (the "Prime Lease") for the lease of the
real property more particularly described in the Prime Lease which is attached
hereto as Exhibit "A" (the "Property") upon which Airadigm has constructed or
will construct a tower and related facilities;
WHEREAS, Airadigm desires to assign the Prime Lease for said site to
SpectraSite; and
WHEREAS, SpectraSite desires to develop the tower and certain facilities
on the Property and sublease a portion of the space upon the tower facilities to
Airadigm.
NOW THEREFORE, for and in consideration of the mutual promises outlined
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Airadigm and SpectraSite do hereby agree as
follows:
1. Assignment. Airadigm does hereby assign to SpectraSite and
SpectraSite shall assume and agree to be bound by the Prime Lease, or such other
contract through which Airadigm has acquired an interest in the real property
which is the subject of the Prime Lease together with any easements for ingress,
egress and utilities ("Easements") to the Property.
2. Covenants of Airadigm. Airadigm covenants that it:
(a) unconditionally and absolutely assigns, transfers, sets over and
conveys to SpectraSite, free and clear of all liens, claims and encumbrances,
all of Airadigm's right, title and interest in, to and under the Prime Lease
except as such rights may be limited or modified by any (if any) addenda
attached to the Prime Lease. Airadigm represents and warrants to SpectraSite
that all addenda to the Prime Lease are attached to this Agreement as part of
Exhibit "A";
(b) shall warrant, indemnify and defend the leasehold title assigned to
SpectraSite against the lawful claims of all persons provided that such claim
arises as a result of Airadigm's interest in the Prime Lease, but no further or
otherwise except as set forth in the Asset Purchase Agreement, and except to the
extent than an interest in real estate is subject to taxes, ordinances and other
matters of record;
(c) has no knowledge or notice of any default, defense, offset, claim,
demand, counterclaim or cause of action which may presently exist under the
Prime Lease; and
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(d) irrevocably assigns, transfer, conveys and sets over to SpectraSite
without warranty or representation and SpectraSite accepts from Airadigm all of
the right, title and interest of Airadigm under each and all of the following
items (without warranty that any of the following may be assigned):
(i) the Federal Aviation Administration application, responses,
approvals and registration numbers submitted or received by Airadigm
with respect to the tower proposed to be constructed on the Property;
(ii) the zoning permits and approvals, variances, building
permits and such other federal, state or local governmental approvals
which have been gained or for which Airadigm has made application;
(iii) the construction, engineering and architectural drawings
and related site plan and surveys pertaining to the construction of the
Tower Facilities on the Property;
(iv) the geotechnical report for the Property which has been
commissioned by Airadigm;
(v) the title reports, commitments for title insurance,
ownership and encumbrance reports, title opinion letters, copies of
instruments in the chain of title or any other information which may
have been produced regarding title to the Property and the Easements;
(vi) the environmental assessments including phase I reports and
any reports relating contemporaneous or subsequent intrusive testing,
the "FCC Checklist" performed pursuant to NEPA requirements and any
other information which may have been produced regarding the
environmental condition of the Property, Easements or neighboring real
property; and
The items described in paragraphs 2.2(d) may hereinafter be collectively
referred to as "Site Acquisition Items"; and
(e) shall use diligent efforts to assist SpectraSite in obtaining an
estoppel certificate from the lessor in the Prime Lease in substantially the
same form as is attached hereto as Exhibit "B" ("Estoppel Certificate").
SpectraSite shall use diligent efforts to obtain such Estoppel Certificate from
each lessor.
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IN WITNESS WHEREOF, SpectraSite and Airadigm have signed this Agreement
as of the date and year first above written.
AIRADIGM: SPECTRASITE:
AIRADIGM COMMUNICATIONS, INC. SPECTRASITE COMMUNICATIONS, INC.
By: By:
-------------------------- --------------------------
Name: Name:
Title: Title:
-----------------------
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EXHIBIT "A"
PRIME LEASE AGREEMENT
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EXHIBIT "B"
ESTOPPEL CERTIFICATE
THIS INSTRUMENT is given as of this ____ day of _____________________,
1998, by __________________________ ("Lessor") to SpectraSite Communications,
Inc. ("Assignee").
RECITALS
A. Lessor entered into a Lease Agreement or similar agreement (the
"Prime Lease") dated as of the _______ day of ___________, 1998 with Airadigm
Communications, Inc., a Wisconsin corporation ("Lessee").
B. Lessee desires to assign to Assignee its interest in the Prime Lease.
C. Assignee seeks Lessor's acknowledgment, as of the date of execution
of this Instrument, of certain matters affecting the Prime Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, intending to be legally bound:
1. Lessor's Estoppel Certificate. Lessor hereby certifies, with the
understanding that Assignee is relying upon the statements made herein, the
following:
a. The Prime Lease constitutes the entire agreement between the parties
with respect to the Premises. The Prime Lease has not been amended and there are
no other agreements between Lessor and Lessee with respect to the property or
the easements which are described in the Prime Lease.
b. The Prime Lease is in full force and effect in accordance with its
terms. To the best of Lessor's knowledge, neither Lessee nor Lessor is in
default under any of the terms of the Prime Lease, and Lessor has not received
actual or constructive notice of the existence of any event which, with the
passage of time or the giving of notice or both, would constitute a default
under the Prime Lease.
c. All applicable Prime Lease fees (if any) and other charges and
payments due Lessor from Lessee under the Prime Lease have been paid in full
through the date hereof (except reimbursements for real estate taxes, insurance,
utilities or other reimbursements, if any, due for fiscal periods to the extent
not yet payable).
2. Consent. Lessor hereby acknowledges the right of Lessee to assign the
Lease to Assignee and agrees that all terms of the Prime Lease shall be in full
force and effect between Lessor and Assignee as if Lessor and Assignee were the
original parties to the Prime Lease and that such assignment shall not violate
the terms of the Prime Lease, will not create or cause the Assignee to be liable
for any rent in excess of $__________ per month during the Initial Term or be
considered a sublease under the terms of the Prime Lease or any addenda thereto.
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3. Reliance. Lessor understands that Assignee is relying on the
information contained in this Instrument, and agrees that Assignee may rely on
this information, for purposes of determining whether to consummate their
transaction. Further, Assignee's subsidiaries, affiliates, legal representatives
and successor and assigns may rely on the contents of this Instrument. A
facsimile of this instrument delivered to Assignee by telecopier shall be deemed
an original for all purposes.
4. Notice; Non-Disturbance. Assignee intends to grant a sub-leasehold
interest to Lessee. Lessor shall give notice to Lessee at the same time that
Lessor gives notice to Assignee of any default under the Prime Lease, and Lessor
shall accept a cure of any such default from Lessee on Assignee's behalf. In
such case, Lessee shall be entitled to reimbursement from Assignee of any amount
paid or obligation incurred in respect thereof. If any mortgagee of Assignee
forecloses on Assignee's interest therein, such mortgagees or other purchasers
at foreclosure sale or in lieu thereof shall agree not to foreclose Lessee's
interests under the Prime Lease or its sublease with Assignee or otherwise
disturb the occupancy by Lessee, provided that Lessee pays all amounts required
to be paid under the Prime Lease or the Sublease, as the case may be.
5. Notices. Any Notices to be received by Assignee under the Prime Lease
shall be deemed properly given if marked to Assignee with proper postage or sent
via a reputable overnight carrier to the following address:
SpectraSite:
SpectraSite Communications, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
Attention: Xxxxx Xxxxx
With a copy to:
Xxxxxxxx & Xxxxxxx, PLC
Plaza West Building
000 Xxxxx XxXxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
IN WITNESS WHEREOF, Lessor has executed this Instrument as of the date
set forth above.
LESSOR:
By:
-------------------------
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ATTACHMENT B
XXXX OF SALE FOR THE TOWER FACILITIES
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ATTACHMENT C
ASSIGNMENT OF COLLOCATION AGREEMENTS
THIS ASSIGNMENT OF COLLOCATION AGREEMENT ("Agreement") is made and
entered into as of the _____ day of ____________, 1998, by and between
SpectraSite Communications, Inc., a Delaware corporation ("SpectraSite"), and
Airadigm Communications, Inc., a Wisconsin corporation ("Airadigm").
WHEREAS, SpectraSite and Airadigm have entered into that certain Asset
Purchase Agreement ("Purchase Agreement") dated the ____ day of
_________________, 1998 in which Airadigm conveyed to SpectraSite certain
communications towers and related facilities ("Tower Facilities");
WHEREAS, Airadigm has entered into a lease agreement or other similar
agreement with ______________________ ("____________") which grants
_______________ the right to install certain communications antennas and other
equipment on a tower and on the ground in the vicinity of the tower (the
"Collocation Agreement") for the lease of space on the tower;
WHEREAS, Airadigm desires to assign the Collocation Agreement to
SpectraSite.
NOW THEREFORE, for and in consideration of the mutual promises outlined
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Airadigm and SpectraSite do hereby agree as
follows:
1. Assignment. Airadigm does hereby assign to SpectraSite and
SpectraSite shall assume and agree to be bound by the Collocation Agreement.
2. Covenants of Airadigm. Airadigm covenants that it:
(a) unconditionally and absolutely assigns, transfers, sets over and
conveys to SpectraSite, free and clear of all liens, claims and encumbrances,
all of Airadigm's right, title and interest in, to and under the Collocation
Agreement except as such rights may be limited or modified by any (if any)
addenda attached to the Collocation Agreement. Airadigm represents and warrants
to SpectraSite that all addenda to the Collocation Agreement are attached to
this Agreement as part of Exhibit "A";
(b) shall warrant, indemnify and defend the leasehold title assigned to
SpectraSite against the lawful claims of all persons provided that such claim
arises as a result of Airadigm's interest in the Collocation Agreement, but no
further or otherwise;
(c) has no knowledge or notice of any default, defense, offset, claim,
demand, counterclaim or cause of action which may presently exist under the
Collocation Agreement; and
(d) shall use diligent efforts to assist SpectraSite in obtaining an
estoppel certificate from the lessor in the Collocation Agreement in
substantially the same form as is attached hereto as Exhibit "B" ("Estoppel
Certificate") and shall notify _______________ that all rent due Airadigm under
the
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Collocation Agreement shall be due and payable to SpectraSite after the date
of this Agreement and in the event that rents which are due and accruing after
the date of this Agreement are paid to Airadigm, then in such an event Airadigm
shall promptly tender said sums to SpectraSite.
3. Representations and Warranties of Airadigm. By executing a Site
Agreement, Airadigm represents and warrants to SpectraSite that:
(a) the Collocation Agreement has not been amended, modified or assigned
in any manner other than as set forth in the Collocation Agreement and that the
Collocation Agreement is and remains valid and in full force and effect; and
(b) Airadigm has the full right and authority to assign the Collocation
Agreement.
(c) Neither Airadigm nor the sublessee, licensee or occupant under the
Collocation Agreement are in default under any of the terms of the Collocation
Agreement, and Airadigm has not received actual or constructive notice of the
existence of any event which, with the passage of time or the giving of notice
or both, would constitute a default under the Collocation Agreement. All
applicable rent and other charges and payments due Airadigm from the sublessee,
lessee, licensee or occupant under the Collocation Agreements have been paid in
full through the date hereof (except reimbursements for real estate taxes,
insurance, utilities or other reimbursements, if any, due for fiscal periods to
the extent not yet payable), that no rent has been paid in advance on any
Collocation Agreement, that no Collocation Agreement has been assigned or
pledged as collateral by Airadigm and that the lessee, sublessee or licensee
under all Collocation Agreements have no defense, right to off-set against
Airadigm
IN WITNESS WHEREOF, SpectraSite and Airadigm have signed this Agreement
as of the date and year first above written.
AIRADIGM: SPECTRASITE:
AIRADIGM COMMUNICATIONS, INC. SPECTRASITE COMMUNICATIONS,
INC.
By: ` By:
-------------------------- ------------------------
Name: Name:
Title: Title:
----------------------
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EXHIBIT "A"
COLLOCATION AGREEMENT
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