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EXHIBIT 10.25
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into this ____ day of August,
1998 by and among AMICA WIRELESS PHONE SERVICE, INC., an Illinois_ corporation
("Amica"), and SPECTRASITE COMMUNICATIONS, INC., a Delaware corporation
("SpectraSite").
WHEREAS, Amica is a wireless communications company which provides PCS
service;
WHEREAS, Amica has leased real property upon which Amica has plans to
construct certain improvements including, but not limited to towers and related
facilities;
WHEREAS, Amica desires to assign, sell and convey to SpectraSite some or
all of its sites ("Site" or collectively "Sites") as well as certain towers and
related facilities in conjunction with the Sites (the "Tower Facilities") which
are more particularly described on Schedule II;
WHEREAS, Amica desires to lease space on the Sites from SpectraSite
subsequent to the sale of the Sites to SpectraSite;
WHEREAS, SpectraSite desires to purchase, and Amica desires to sell
certain towers and related facilities, contract rights, property rights and
leasehold interests.
NOW THEREFORE, Amica and SpectraSite do hereby agree as follows:
1. ASSETS PURCHASED. Amica agrees to grant, bargain, sell, convey and
assign to SpectraSite and SpectraSite agrees to purchase and accept from Amica,
on the terms and conditions set forth in this Agreement Amica'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, materials and other tangible property owned by Amica
which have been purchased for the Sites whether or not said assets have been
affixed to the Sites described in the Prime Leases (collectively "Personal
Property") specified in Schedule II attached hereto;
(c) the following items as the case may be for each Site:
(i) the Federal Aviation Administration application, responses,
approvals and registration numbers submitted or received by Amica;
(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 Amica 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 Amica;
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(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 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 Amica or its agents, independent contractors or
employees regarding the Site.
The items described in paragraphs 1(c) 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, Personal
Property 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, Amica will promptly disclose to SpectraSite in writing any
information set forth in the representations, warranties, covenants and
Schedules herein that is no longer accurate for any reason or any such
information that would render such representations, warranties, covenants or
Schedules inaccurate if made or delivered on any date between the date hereof
and the Closing Date. On and after the Closing Date Amica agrees to execute,
acknowledge and deliver such bills of sale, assignments, acknowledgments and
other instruments of conveyance and transfer and other documents and do such
other acts and things as in the reasonable judgment of SpectraSite shall be
necessary to effectively vest in SpectraSite the full legal and/or 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 Amica specifically itemized on Schedule IV 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.
3. PURCHASE PRICE. The purchase price for the Assets shall be Four
Hundred Seventy Three Thousand Nine Hundred Sixty Six Dollars and No/100
($473,966) ("Purchase Price'), allocated on the basis of Thirty Thousand and
No/100 Dollars ($30,000.00) per Site ("Allocated Purchase Price"). A description
of the individual Sites is set forth on Schedule I. The Purchase Price shall be
reduced by the Allocated Purchase Price for each Site that is rejected by
SpectraSite pursuant to paragraph 1.10 of this Agreement which is entitled
"Conditions Precedent to SpectraSite's Obligations". The purchase price for the
Assets shall be paid in full by SpectraSite at Closing. The operation of Amica's
Prime Leases to the close of business through the Closing Date shall be for the
account of Amica 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 Amica 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.
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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 _____ day of August, 1998 ("Closing Date"),
or at such other time as the parties may agree in writing.
(b) Obligations of Amica at the Closing. At the Closing, Amica 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 Amica conveying all of the
Personal Property to SpectraSite, in substantially the same the form as set
forth in Attachment B;
(iii) a copy of the resolutions of Amica's board of directors and
shareholders, authorizing the execution, delivery and performance of this
Agreement and any other agreement to be entered into by Amica in connection
herewith, and the transactions contemplated hereby;
(iv) the consents of the third parties listed on Schedule III
including where necessary the consents of the lessors under the Prime Leases.
The assets shall be conveyed free and clear of all liens and encumbrances and
lien releases from Fleet National Bank as agent; and
(v) such other assignments, bills of sale, or instruments of
conveyance, certificates of officers, and other documents as may be reasonably
requested by SpectraSite prior to the Closing to consummate this Agreement and
the transactions contemplated hereby.
5. AMICA'S OPERATION OF BUSINESS PRIOR TO CLOSING. Amica agrees that
between the date of this Agreement and the Closing Date, Amica will:
(a) Continue to operate the Assets 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 the Assets, including
the relationship with its customers, suppliers, and others having business
relations with Amica, with respect to the Assets.
(b) Not assign, sell, sublease, lease, license or otherwise transfer or
dispose of any of the Assets, whether now owned or acquired prior to the
Closing.
(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, Amica will provide SpectraSite and its representatives with
reasonable access during business hours to the assets, titles, contracts, and
records of Amica and furnish such additional information concerning Amica's
business as SpectraSite from time to time may reasonably request.
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7. BEST EFFORT.
(a) By Amica. Amica will use its best efforts to effectuate the
transactions contemplated by this Agreement and to fulfill all the conditions of
Amica's obligations under this Agreement, and will do all acts and things as may
be required to carry out Amica's obligations under this Agreement and to
consummate and complete this Agreement.
(b) By SpectraSite. SpectraSite will use its best efforts to effectuate
the transactions contemplated by this Agreement and to fulfill all the
conditions of SpectraSite's obligations under this Agreement, and will do all
acts and things as may be required to carry out SpectraSite's obligations under
this Agreement and to consummate and complete this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF AMICA. Amica represents and
warrants to SpectraSite as follows:
(a) Corporate Existence. Amica 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 Illinois, has all requisite corporate power and authority
to own or lease the Assets.
(b) Corporation Power and Authorization. Amica has full corporate
authority to execute and deliver this Agreement and any other agreement to be
executed and delivered by Amica 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 Amica 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 Amica in accordance with its terms.
(c) Conflict with Other Agreements, Consents and Approvals. With
respect to (i) the articles of incorporation or bylaws of Amica, (ii) any
applicable law, statute, rule or regulation, (iii) any contract to which Amica
is a party or may be bound, or (iv) any judgment, order, injunction, decree or
ruling of any court or governmental authority to which Amica is a party or
subject, the execution of and delivery by Amica of this Agreement and any other
agreement to be executed and delivered by Amica 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 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 Amica on Schedule III.
(d) Compliance with Laws. Amica'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 or the financial condition, results of operations or
anticipated business prospects of SpectraSite, and Amica has received no claim
or notice of violation with respect thereto. Without in any way limiting the
generality of the foregoing, Amica, and only respecting the Assets, is in
compliance with, and is subject to no liabilities under, any and all applicable
laws, governmental rules, ordinances, regulations and orders pertaining to the
presence, management, release, discharge, or disposal of toxic or
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hazardous waste material or substances, pollutants (including conventional
pollutants) and contaminants. Amica has obtained all material permits, licenses,
franchises and other authorizations necessary for the conduct of its business
with respect to the Assets. SpectraSite shall provide Amica notice and a
reasonable opportunity to cure any failure to comply with the covenants imposed
upon Amica by this paragraph.
(e) Litigation. Amica has no knowledge of any claim, litigation,
proceeding, or investigation pending or threatened against Amica that might
result in any material adverse change in the business or condition of Assets
being conveyed under this Agreement.
(f) Brokerage. Amica 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.
(g) Site Acquisition. Amica has performed the following tasks or
obtained the following governmental approvals 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, or will
promptly file, obtain or otherwise comply, 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 Illinois 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 Site ; and
(vi) conducted environmental assessments including phase I reports
and any reports involving contemporaneous or subsequent intrusive testing 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. Amica warrants and represents that the
sites, the easements and any 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 ("Hazardous Materials"). Amica's knowledge is limited to
that disclosed in the Phase I and Phase II reports, if any, which were obtained
by Amica at the time of its acquisition of the Prime Lease for each Site.
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(i) Title and No Defaults. Amica represents and warrants the following
with regard to each Site:
(i) it has a good and marketable leasehold interest in and to the
Sites which are the subject of the Prime Leases and the Prime Leases are and
remain valid and in full force and effect;
(ii) it has good and marketable title to the Personal Property and
Due Diligence Items 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, modified or assigned
in any manner other than as set forth in the Prime Leases;
(v) Amica 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;
(vi) Amica is not in default under any of the terms of any of the
Prime Leases, and Amica 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 Amica 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;
(j) Accuracy of Representations and Warranties. None of the
representations or warranties of Amica 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. Amica
knows of no fact that has resulted, or that in the reasonable judgment of Amica
will result in a material change in the Assets that has not been set forth in
this Agreement or otherwise disclosed to SpectraSite.
9. 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
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contemplated hereby. This Agreement constitutes a valid and binding Agreement
of SpectraSite in accordance with its 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.
(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.
10. CONDITIONS PRECEDENT TO SPECTRASITE'S OBLIGATIONS. The obligation
of SpectraSite to purchase the Assets is subject to the fulfillment, prior to or
at the Closing Date, of each of the following conditions, any one or portion of
which may be waived in writing by SpectraSite:
(a) Representations, Warranties and Covenants of Amica. The
representations and warranties of Amica contained herein and the information
contained in the Schedules and any other documents delivered by Amica in
connection with this Agreement shall be true and correct in all material
respects at the Closing; and Amica 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.
(b) Conditions of the Assets. There shall have been no material adverse
change in the manner of operation of the Assets prior to the Closing Date.
(c) No Suit 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
transactions.
(d) Surveys. SpectraSite shall have the right, at its cost, to have
each Site surveyed and to have radio frequency engineering and other engineering
analyses performed. SpectraSite covenants that said investigations shall be
performed by SpectraSite as soon as practicable after the execution of this
Agreement. In the event that any defects are shown by the survey or the
engineering analyses, which SpectraSite reasonably believes may adversely affect
SpectraSite's
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use of a Site, SpectraSite shall have the right to avoid the assignment of the
Assets for that Site upon written notice to Amica; and
(e) Environmental Assessments. SpectraSite shall have the right, at its
own cost, 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 defined in the Master Design Build Lease Agreement, SpectraSite shall have
the right to avoid the assignment of the Assets for that Site; and
(f) Assignments of Prime Leases. SpectraSite shall have obtained
assignments of all Prime Leases conveying the Prime Leases in substantially the
same form as set forth in Attachment A.
11. Conditions Precedent to Amica's Obligations. The obligation of
Amica to grant, bargain, sell, convey and assign the Assets is subject to the
fulfillment, prior to or at the Closing Date, of each of the following
conditions, any one or portion of which may be waived in writing by Amica:
(a) Representations, Warranties and Covenants of SpectraSite. The
representations and warranties of SpectraSite contained herein and any other
documents delivered by SpectraSite in connection with this Agreement shall be
true and correct in all material respects at the Closing; and SpectraSite 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.
(b) No Suit 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
transactions.
(c) The parties have negotiated and shall execute simultaneously
herewith a Master Design Build Lease Agreement. The use and occupancy of each
Site transferred by Amica pursuant to this Agreement shall be subject to and
governed by the terms, covenants and conditions of Article III of the Master
Design Build Lease.
12. 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 Amica and SpectraSite, without liability;
(b) By SpectraSite, upon written notice to Amica, given at any time
before the Closing Date if the representations and warranties of Amica contained
herein were materially incorrect when made or would be materially incorrect on
the Closing Date or, if Amica 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 Amica 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 unless the
nonperformance relates to an item to be accomplished at or before Closing and
the fourteen (14) day right to cure would lapse prior to Closing;
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(c) By Amica, 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 SpectraSite has materially
violated any covenants contained in Paragraph 9, 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;
(d) By either Amica or SpectraSite in writing, without liability, if
any governmental 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 Amica from
consummating the transactions contemplated hereby, provided that SpectraSite and
Amica 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; if any such denial or refusal applies only to a specific Site, this
Agreement shall remain in full force and effect with respect to the other Sites;
(e) By SpectraSite, without liability, upon written notice to Amica,
given at any time before the Closing Date, if any of the conditions precedent
set forth in Paragraph 10 hereof have not occurred and such failure to occur is
not cured within fourteen (14) days of such notification of intent to terminate
unless the nonperformance relates to an item to be accomplished at or before
Closing and the fourteen (14) day right to cure would lapse prior to Closing.
13. RISK OF LOSS. If, prior to Closing, any of the Tower Facilities are
materially damaged or destroyed, then SpectraSite may rescind this Agreement in
the manner provided above unless arrangements for repair satisfactory to all
parties involved are made prior to Closing. Amica agrees to 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.
14. 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
and which written notice was provided to the other party. 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. The representations and warranties in this Agreement shall survive
the Closing anticipated by this Agreement.
15. INDEMNIFICATION BY AMICA.
(a) Amica hereby agrees to indemnify and hold SpectraSite, its
successors, and assigns harmless from and against:
(i) Excepting Assumed Liabilities, 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 Amica's
operation of the Assets prior to Closing, except for damages, losses, claims,
liabilities, deficiencies and obligations of Amica expressly assumed by
SpectraSite under this Agreement or paid by insurance maintained by Amica, (ii)
any liability or obligation of Amica which is not an Assumed Liability, (iii)
any and all damage or
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deficiency resulting from any material misrepresentation, breach of warranty or
covenant, or nonfulfillment of any agreement on the part of Amica under this
Agreement, and (iv) any and all actions, suits, claims, proceedings,
investigation, auditors, demands, assessments, fines, judgments, costs and other
expenses (including, without limitation, reasonable audit and attorney fees)
incident to any of the foregoing;
(ii) a breach of any representation or warranty made by Amica
pursuant to this Agreement;
(iii) any liabilities or obligations of Amica other than the
Assumed Liabilities;
(iv) any and all environmental damages arising from Amica's use of
the Sites during its leasehold interest;
(b) Amica's indemnity obligations under Section 14 shall be subject to
the following:
(i) If any claim is asserted against SpectraSite that would give
rise to a claim by SpectraSite against Amica for indemnification under the
provisions of this Section, then SpectraSite shall promptly give written notice
to Amica concerning such claim and Amica shall, at no expense to SpectraSite,
defend the claim. Amica shall, in its sole discretion, have the right to settle
any such claim, and SpectraSite shall execute any documents reasonably necessary
to effectuate such settlement.
(ii) Amica shall not be required to indemnify SpectraSite for an
amount that exceeds the total purchase price paid by SpectraSite under this
Agreement.
16. INDEMNIFICATION BY SPECTRASITE. SpectraSite agrees to defend,
indemnify, and hold harmless Amica 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 Assets following
Closing or arising out of SpectraSite's failure to perform obligations of Amica
assumed by SpectraSite pursuant to this Agreement;
(b) after the Closing, any liability or obligation of Amica which is an
Assumed Liability;
(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.
17. 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 Amica in
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the course of investigating, negotiating, and performing the transactions
contemplated by this Agreement.
18. MISCELLANEOUS PROVISIONS.
(a) Notices. Any notice under this Agreement shall be in writing and
shall be effective when actually delivered in person or three days after being
deposited in the U.S. mail, registered or certified, postage prepaid and
addressed to 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
Amica: Amica Wireless Phone Service, Inc.
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxx Xxxxxx
With a copy to: Meardon, Sueppel, Xxxxxx & Xxxxx, PLC
000 X. Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxx Xxxxx
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.
(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, such consent shall not be unreasonably withheld.
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(f) Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
(g) Attorney Fees. In the event an arbitration, suit or action is
brought by either 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) Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
(m) 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.
(n) 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 performance of all obligations of the
parties pursuant to this Agreement. All promises and covenants are mutual and
dependent.
(o) 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.
(p) 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.
(q) 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 Amica have executed this Asset
Purchase Agreement as of the date and year first above written.
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SPECTRASITE COMMUNICATIONS, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
(CORPORATE SEAL)
AMICA WIRELESS PHONE SERVICE,INC
By:
---------------------------
Name:
-------------------------
Title:
------------------------
(CORPORATE SEAL)
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SCHEDULE I
SCHEDULE OF PRIME LEASES
SITE LANDLORD TOTAL
1 BLM-004 XXXXXXXXX 30,000
2 BLM-005 KINDRED 30,000
0 XXX-000 XXXXXXXXX 30,000
4 BLM-007 XXXXXXX 30,000
5 BLM-008 XXXXXXXX 30,000
6 CHP-016 XXXXXXX 30,000
7 CHP-022 XXXXXX 30,000
8 DEC-033 ELKS LODGE 30,000
9 DEC-034 XXXXXX 30,000
10 DEC-035 XXXXX 30,000
11 SPR-047 XXXXX 30,000
00 XXX-000 XXXXX PRINTING 30,000
13 SPR-055 BEAM 30,000
14 CLN-001 XXXXXX 30,000
THE COSTS FOR EACH SITE INCLUDE SITE ACQUISITION, AND CONSTRUCTION MANAGEMENT.
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SCHEDULE II
SCHEDULE OF PERSONAL PROPERTY
BLM-004 190' XXXX TOWER $26,998
BLM-008 190' XXXX TOWER $26,998
-------
$53,996
=======
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SCHEDULE III
REQUIRED CONSENTS
FLEET NATIONAL BANK
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SCHEDULE IV
ASSUMED LIABILITIES
NO LIABILITIES OF AMICA ARE TO BE ASSUMED BY SPECTRASITE.
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ATTACHMENT "A"
ASSIGNMENT OF LEASE AGREEMENT
THIS ASSIGNMENT OF LEASE AGREEMENT ("Agreement") is made and entered into
as of the _____ day of _________________, 1998, by and between SpectraSite
Communications, Inc., a Delaware corporation ("SpectraSite"), J. Xxxxx Xxxxxxx
(the "Ground Lessor") and Amica Wireless Phone Service, Inc., an Illinois
corporation ("Amica").
WHEREAS, Amica has entered into a ground lease agreement dated February
9, 1998 (the "Xxxxxxx Lease") for a parcel of real property located in Xxxxx
County, Illinois with the Ground Lessor which is more particularly described in
the Lease attached hereto as Exhibit "A" (the "Property");
WHEREAS, Amica desires to assign the Xxxxxxx Lease for said Property to
SpectraSite; and
WHEREAS, the Ground Lessor hereby consents to such assignment; and
WHEREAS, SpectraSite desires to accept an assignment of the Lease.
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, Amica and SpectraSite do hereby agree as follows:
1. Assignment. Amica does hereby assign to SpectraSite the Lease
together with any easements for ingress, egress and utilities ("Easements") to
the Properties. SpectraSite shall assume and agree to be bound by the Lease.
2. Covenants of Amica. Amica 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 Amica's right, title and interest in, to and under the Lease except as
such rights may be limited or modified by any (if any) addenda attached to the
Lease. Amica represents and warrants to SpectraSite that any and all addenda to
the 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.
(c) has no knowledge or notice of any default, defense, offset, claim,
demand, counterclaim or cause of action which may presently exist or may
hereafter arise under the Lease; and
(d) irrevocably assigns, transfers, conveys and sets over to
SpectraSite all of the right, title and interest of Amica under each and all of
the following items:
(i) the Federal Aviation Administration application, responses,
approvals and registration numbers submitted or received by Amica with respect
to the tower proposed to be constructed on the Property;
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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 Amica 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 Amica;
(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
(vii) any other information written or otherwise regarding the due
diligence investigation made by Amica or its agents, independent contractors or
employees regarding the Property or the Easement.
The items described in paragraphs 2.2(d) may hereinafter be collectively
referred to as "Site Acquisition Items"; and
3. Conditions Precedent. SpectraSite's obligation to assume and to
perform under the Lease shall be subject to and conditioned upon SpectraSite's
personal satisfaction with the review of the Lease and the Site Acquisition
Items. SpectraSite's lack of satisfaction with the Lease, the Site Acquisition
Items or the occurrence of any other event which effectively prohibits
SpectraSite's use of the Property for tower facilities shall relieve SpectraSite
from any obligation to accept an assignment of the Lease or to perform under the
Lease. The foregoing conditions precedent shall be deemed effectively waived by
SpectraSite if SpectraSite does not assert these conditions within sixty (60)
days of the date of this Agreement.
4. Representations and Warranties of Amica. Amica represents and
warrants to SpectraSite that:
(a) The Lease has not been amended, modified or assigned in any manner
other than as set forth in the Lease and that the Lease is and remains valid and
in full force and effect. Amica has not prepaid any rent or other monies due
under the Lease;
(b) Amica has the full right and authority to assign the Lease; and
(c) Amica has paid in full all sums due and owing those vendors which
have performed services or provided materials in conjunction with each Site
which is the subject of this Agreement prior to the date of the assignment
including but not limited to the costs incurred in the preparation of the Site
Acquisition Items.
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5. Representations and Warranties of Ground Lessor. The Ground Lessor
hereby certifies, with the understanding that SpectraSite is relying upon the
statements made herein, the following:
(a) The Lease constitutes the entire agreement between the parties with
respect to the leased property. The Lease has not been amended and there are no
other agreements between the Ground Lessor and Amica with respect to the
property or the easements which are described in the Lease.
(b) The Lease is in full force and effect in accordance with its terms.
To the best of the Ground Lessor's knowledge, neither party is in default under
any of the terms of the Lease, and the Ground 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
Lease.
(c) All applicable Lease fees (if any) and other charges and payments
due the Ground Lessor from Amica under the 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).
(d) Ground Lessor understands that SpectraSite is relying on the
information contained in this instrument, and agrees that SpectraSite may rely
on this information, for purposes of determining whether to consummate their
transaction. Further, SpectraSite's subsidiaries, affiliates, legal
representatives and successor and assigns may rely on the contents of this
Instrument. A facsimile of this instrument delivered to SpectraSite by
telecopier shall be deemed an original for all purposes.
(e) Any Notices to be received by SpectraSite Assignee under the Lease
shall be deemed properly given if marked to SpectraSite with proper postage or
sent via a reputable overnight carrier to the following address:
SpectraSite Communications, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx, XX 00000
Attention: Legal Notices
With a copy to:
Xxxxxxxx & Xxxxxxx, PLC
Plaza West Building
000 Xxxxx XxXxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attn.: Xxxx X. Xxxxxxxx
6. Covenants of SpectraSite. SpectraSite covenants that it shall
assume Amica's duties and obligations under the Xxxxxxx Lease.
7. Consent of Ground Lessor. The Ground Lessor hereby acknowledges the
right of Amica to assign the Lease to SpectraSite and agrees that all terms of
the Lease shall be in full force and effect between the Ground Lessor and
SpectraSite as if Lessor and Assignee were the original parties to the Lease and
that such assignment shall not violate the terms of the Lease, will not create
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or cause the Assignee to be liable for any rent in excess of $450.00 per month
during the Initial Term or be considered a sublease under the terms of the Lease
or any addenda thereto.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, SpectraSite, the Ground Lessor and Amica have signed
this Agreement as of the date and year first above written.
SpectraSite Communications, Inc.,
a Delaware corporation
By:
-------------------------------
President
------------
ATTEST:
------------------------
Secretary
-----------
[AFFIX CORPORATE SEAL]
Amica Wireless Phone Service, Inc.,
an Illinois corporation
By:
--------------------------------
President
-------------
ATTEST:
-------------------------
Secretary
-----------
[AFFIX CORPORATE SEAL]
-----------------------------------
J. Xxxxx Xxxxxxx
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EXHIBIT "A"
PRIME LEASE AGREEMENT
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ATTACHMENT B
XXXX OF SALE FOR THE PERSONAL PROPERTY
XXXX OF SALE
FOR GOOD AND VALUABLE CONSIDERATION PAID, Seller, Amica Wireless Phone Service,
Inc., an Illinois corporation, 000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx, Xxxx
00000, does hereby sell, assign, transfer and set over unto Buyer, SpectraSite
Communications, Inc., a Delaware corporation, 0000 Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxx, Xxxxx Xxxxxxxx 00000, the following described personal property, to-wit
("Assets"):
1. BLM-004 190' Xxxx Tower
2. BLM-008 190' Xxxx Tower
which property is now located at Xx. Xxxx, Xxxxxxxx in the possession of P & D
Antenna. The above named Buyer does hereby assent to becoming the owner of the
above described property.
All of these Assets are transferred to Buyer, its successors and assigns, to
have and to hold for Buyer's and their own proper right, use and benefit
forever. Seller covenants with Buyer, its successors and assigns, that Seller is
the lawful owner of the Assets and has good right to sell the Assets and that
the Assets are free from all liens and encumbrances. Seller will warrant and
defend title to the assets against any and all lawful claims and demands
whatsoever. Words and phrases herein, including acknowledgement hereof, shall be
construed as in the singular or plural number, and as the appropriate gender,
according to the context.
Signed this _____ day of ____________________, 1998.
AMICA WIRELESS PHONE SERVICE, INC. SPECTRASITE COMMUNICATIONS, INC.
By: By:
-------------------------------- -----------------------------
Xxxxxxx X. Bodnarek, General Manager
SELLER By:
----------------------------
BUYER
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STATE OF IOWA )
)XX
XXXXXXX COUNTY )
On this _____ day of _____________________, 1998 before me, the
undersigned, a Notary Public in and for said County and said State, personally
appeared Xxxxxxx X. Bodnarek, to me personally known, who, being by me duly
sworn, did say that he is the General Manager of said corporation; that said
Instrument was signed on behalf of said corporation by authority of its Board of
Directors; and that the said General Manager as such officer, acknowledged the
execution of said instrument to be the voluntary act and deed of said
corporation, by it and by him voluntarily executed.
------------------------------------------
NOTARY PUBLIC IN AND FOR THE STATE OF IOWA
STATE OF __________)
)SS
____________ COUNTY)
On this _____ day of _______________, 1998 before me, the undersigned, a
Notary Public in and for said County and State, personally appeared
________________________________, and _____________________________________, to
me personally known, who, being by me duly sworn, did say that they are the
_________________________ and _______________________ (respectively, of said
corporation; that (no seal has been procured by the said) (the seal affixed
thereto is the seal of said) corporation; that said Instrument was signed (and
sealed) on behalf of said corporation by authority of its Board of Directors;
and that the ___________________________ and _______________________________ as
such officers, acknowledged the execution of said Instrument to be the voluntary
act and deed of said corporation, by it and by them voluntarily executed.
------------------------------------------
NOTARY PUBLIC FOR SAID STATE
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