EXHIBIT 10.30
ASSET PURCHASE AGREEMENT
(Michigan)
This Asset Purchase Agreement (the "Agreement") is made and entered into as
of July 12, 2000, by SPRINT SPECTRUM L.P. and its subsidiaries SPRINT SPECTRUM
EQUIPMENT COMPANY, L.P. and SPRINT SPECTRUM REALTY COMPANY, L.P., all of which
are Delaware limited partnerships (together "Seller"), and iPCS Wireless, Inc.,
a Delaware corporation ("Buyer").
Recitals
I. Seller owns or leases that equipment and property of Seller located in
the following BTAs and identified on attached Exhibit A (the "Assets"):
Grand Rapids, MI BTA No. 000
Xxxxxxx, XX BTA No. 000
Xxxxxxxx, XX BTA No. 000
Xxxxxxx-Xxx Xxxx, XX BTA No. 390
II. Buyer and Seller have entered into that certain Amended and Restated
Addendum III dated March 8, 2000 to the Sprint PCS Management Agreement dated
January 22, 1999 (the "Management Agreement"), to which this Agreement is made
an exhibit upon its execution by the parties and that provides, among other
things, that Buyer will purchase and Seller will sell the Assets, upon the terms
and conditions set forth in this Agreement.
Agreements
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement the parties hereto agree as follows:
1. Transfer of Assets. Subject to the terms and conditions of this
Agreement, Seller agrees to sell, convey and assign to Buyer, and Buyer agrees
to purchase from Seller, all of Seller's right, title and interest in the
Assets, free and clear from all liens created by the Seller other than those
arising from the Assumed Liabilities (as defined below). The consummation of
this transaction will occur, subject to the terms and conditions of this
Agreement, on or before July 12, 2000 (the "Closing Date").
2. Purchase Price. The purchase price of the Assets (the "Purchase Price")
will be equal to the amount set forth on the attached Exhibit B.
3. Review Period. Buyer acknowledges that it has had an opportunity to
review such documents and make, or cause to be made by agents or contractors of
Buyer's choosing, any and
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all physical, mechanical, environmental, structural or other inspections of the
Assets as Buyer deems appropriate.
4. Assumption of Liabilities. Buyer agrees to assume the liabilities,
debts, expenses and obligations of Seller that relate to the Assets with respect
to the period from and after the date on which such Assets are transferred to
Buyer and that are set forth on Exhibit C (the "Assumed Liabilities"), and to
pay and perform the Assumed Liabilities when due. Buyer's assumption of the
Assumed Liabilities does not enlarge any rights of third parties under contracts
or arrangements with Buyer or Seller. Nothing in this Agreement prevents Buyer
from contesting in good faith any of the Assumed Liabilities. Other than the
Assumed Liabilities, Buyer assumes no liabilities whatsoever relating to the
Assets or the business and operations of Seller.
5. Condition of Assets. It is understood and agreed that Seller is not
making, and Seller specifically disclaims, any warranties or representations of
any kind or character, express or implied, with respect to the Assets,
including, but not limited to, warranties or representations as to matters of
title (except that Seller represents and warrants that Seller has not previously
conveyed, pledged, encumbered, hypothecated or assigned that Asset to any other
party), zoning, tax consequences, physical or environmental conditions,
availability of access, operating history or projections, valuation,
governmental approvals, governmental regulations or any other matter or thing
relating to or affecting the Assets, including, without limitation: (i) the
value, condition, merchantability, marketability, profitability, suitability or
fitness for a particular use or purpose of the Assets; (ii) the manner or
quality of the construction or materials incorporated into any of the Assets;
and (iii) the manner, quality, state of repair or lack of repair of the Assets.
Buyer agrees that with respect to the Assets, Buyer has not relied upon and will
not rely upon, either directly or indirectly, any representation or warranty of
Seller or any agent of Seller other than as specifically set forth in this
Agreement.
Buyer represents that it is a knowledgeable purchaser and that it is
relying solely on its own expertise and that of Buyer's consultants, and that
Buyer will conduct such inspections and investigations of the Assets as it deems
necessary or advisable, including, but not limited to, the physical and
environmental conditions thereof, and shall rely upon same, and, upon closing,
shall assume the risk that adverse matters, including, but not limited to,
adverse physical and environmental conditions, may not have been revealed by
Buyer's inspections and investigations. Buyer acknowledges and agrees that upon
Closing, Seller shall sell and convey to Buyer and Buyer shall accept the Assets
"as is, where is" with all faults, and Buyer further acknowledges and agrees
that there are no oral agreements, warranties or representations, collateral to
or affecting the Assets by Seller, any agent of Seller or any third party except
as specifically set forth in this Agreement. The terms and conditions of this
Section 5 shall expressly survive the Closing.
6. Damage or Destruction. If prior to the date on which any particular
Asset is transferred to Buyer, any such Asset is destroyed or substantially
damaged by fire, lightning or any other cause, or all or any part of the Assets
are taken by eminent domain (or is the subject of a pending or contemplated
taking which has not been consummated), Seller will immediately
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deliver to Buyer written notice of such event or condition, and Buyer will have
the option of (a) enforcing this Agreement and retaining any insurance proceeds
or proceeds of the taking by eminent domain, or (b) terminating this Agreement
with respect to the affected Asset(s) by written notice within twenty (20) days
after receiving written notice from Seller of such destruction, damage, claim or
taking. If this Agreement is terminated, neither party will have any further
obligation under this Agreement respecting the affected Assets. The risk of loss
will be borne by Seller until the date of transfer.
7. Closing. If Buyer does not terminate the Agreement pursuant to
Paragraph 3 or 6 of this Agreement, then, on the Closing Date:
(i) Seller and Buyer shall execute and deliver to each other an
Assignment of Leases and Xxxx of Sale in the form attached hereto
as Exhibit D for the Assets;
(ii) Buyer shall pay to Seller the Purchase Price; and
(iii) Buyer shall provide copies of all necessary consents, if any, for
the conveyance or assignment of the Assets and the assumption by
Buyer of the Assumed Liabilities. Such consents shall be in the
form of the Consent and Release attached hereto as Exhibit E, with
such changes as shall be approved by Seller (which approval shall
not be unreasonably withheld).
Buyer is responsible for paying or causing to be paid all transfer, stamp,
recording, sales, use, excise or similar taxes, fees or duties payable in
connection with the sale, assignment or conveyance of Seller's interest in and
to the Assets or the assumption of the Assumed Liabilities.
Buyer is also responsible for reporting all taxable property to the
appropriate taxing authority for ad valorem tax purposes. Buyer will pay as and
when due all taxes, assessments, liens, encumbrances, levies, and other charges
against the real estate, personal property and intangible property that is sold,
transferred, assigned or otherwise conveyed to Buyer pursuant to this agreement,
other than those relating to the period prior to the date of transfer, which
shall remain the responsibility of Seller.
8. Further Assurances. Seller will from time to time at the request of
Buyer, do, make, execute, acknowledge and deliver all such other instruments of
conveyance, assignment, and transfer, in form and substance reasonably
satisfactory to Seller, as Buyer may reasonably require for the more effective
conveyance and transfer of any of the Assets.
9. Indemnification; Survival. Breaches of this Agreement by either Buyer
or Seller will be a breach for which the non-breaching party is entitled to
indemnification utilizing the procedures set forth in the Management Agreement.
This Agreement shall survive the Closing.
10. Entire Agreement and Assignment. This Agreement and the exhibits and
schedules attached to this Agreement (which are incorporated by this reference),
the Management Agreement, including all addenda thereto, the Interim Network
Operating
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Agreement dated as of the date hereof between Sprint Spectrum L.P. and Buyer,
and the Master Sublease Agreement dated May 18 2000 between Buyer and Sprint
Spectrum L.P. contain the entire agreement between the parties hereto with
respect to the acquisition of the Assets and the other transactions contemplated
herein, and supersedes all prior agreements or understandings between the
parties hereto relating to the subject matter hereof. All exhibits attached
hereto are incorporated herein by this reference. Buyer may assign its rights
and obligations under this Agreement to any legal entity that assumes all, but
not less than all, of Buyer's obligations under the Management Agreement.
11. Severability. In the event any one or more of the provisions contained
in this Agreement or any application thereof is invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement and any other application thereof will
not in any way be affected or impaired thereby. Paragraph headings herein or in
any exhibit hereto have no legal significance and are used solely for
convenience of reference.
12. No Other Representations and Warranties. Seller makes no representation
or warranty to Buyer with respect to the Assets, except as expressly set forth
in this Agreement.
13. Waivers and Notices. Any term or condition of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a written
instrument. No delay or failure on the part of any party in exercising any
rights hereunder, and no partial or single exercise thereof, will constitute a
waiver of such rights or of any other rights hereunder. All notices, consents,
requests, instructions, approvals and other communications provided for herein
will be validly given, made or served if given, made or served in accordance
with the Management Agreement. For purposes of this Agreement, notices to Seller
will be sent to the notice address for Sprint PCS stated in the Management
Agreement, and notices to Buyer will be sent to the notice address set forth for
Manager in the Management Agreement.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will constitute an original but all of such
counterparts taken together will constitute only one Agreement.
15. Governing Law. The internal laws of the State of Missouri (without
regard to principles of conflicts of law) govern the validity of this agreement,
the construction of its terms, and the interpretation of the rights and duties
of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER: SPRINT SPECTRUM L.P.
By /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
Vice President - Affiliations
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P.
By /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
Vice President - Affiliations
SPRINT SPECTRUM REALTY COMPANY, L.P.
By /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
Vice President - Affiliations
BUYER: IPCS WIRELESS, INC.
By /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
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Asset Purchase Agreement
Michigan Cell Sites
Asset Purchase Agreement Exhibit A
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Estimated
Latitude/ SSUSA
Cascade ID Site Address Candidate City Longitude (Y/N) Site Type Transfer Stage
-----------------------------------------------------------------------------------------------------------------------------------
TRANSFER STAGES
---------------------------------------------------------------
TOTAL ON AIR 23
TOTAL ON AIR (Lansing) 9
On Air (Lansing or Detroit) 2
Total On Air (Detroit) 1
TOTAL CONSTRUCTED 3
TOTAL NTP 14
TOTAL LEASED 1
TOTAL PRE-LEASE 9
TOTAL UNDETERMINED 0
---------------------------------------------------------------
TOTAL 62
Final Price for Illinois PCS
Michigan Asset Transfer
Asset Purchase Agreement Exhibit B
----------------------------------------------------------------------
Cascade ID Site Type Colo Transfer Stage Price
----------------------------------------------------------------------
TOTAL $12,925,210
Sites are/will be sprint Sites USA Owned
Red cascade sites are currently on air.
Transfer Stage summary
On Air 23
------------------------------------------------------------------------------
Cascade ID Site Type Colo Transfer Stage Price
------------------------------------------------------------------------------
On Air (Lansing) 9
On Air (Detroit) 1
On Air (Detroit or Lansing) 2
Tower Construc 3
NTP 14
Lease 1
Pre-lease 9
TBD 0
Total 62
Assumed Liabilities
Exhibit C
Obligations arising after the Closing Date in connection with the Leases.
Cascade ID/
Bolded sites SSUSA
Sprint owned (Y or N) Site Address City Site Type
------------------------------------------------------------------------------
Exhibit D
ASSIGNMENT OF LEASES AND XXXX OF SALE
THIS ASSIGNMENT OF LEASES AND XXXX OF SALE ("Assignment") is made and
entered into as of the ____ day of _________, 199__ by and between
_______________, a ________________ ("Assignor"), and
___________________________________________________, a
____________________________ ("Assignee").
1. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor does hereby sell, assign, transfer and
set over unto Assignee all of Assignor's right, title and interest in and to
those certain leases (collectively the "Leases") described in Exhibit A attached
hereto and made a part hereof.
2. In addition to the Assignment described above, and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignee hereby agrees to assume all obligations and liabilities
of Assignor arising under or pursuant to the Leases from and after the date
hereof, and Assignee further agrees to perform and abide by each and every term,
provision, covenant and condition contained in the Leases to be observed or
performed on or after the date hereof. Assignor will not be responsible to the
lessors under each of the Leases for the discharge or performance of any duties
or obligations to be performed or discharged by the lessee thereunder after the
date hereof.
3. Assignee hereby agrees to indemnify and hold harmless Assignor from and
against any and all loss, cost or expense (including, without limitation,
reasonable attorney's fees) resulting by reason of Assignee's failure to perform
any of the obligations of the lessee under the Leases after the assignment
thereof to Assignee. Assignor hereby agrees to indemnify and hold harmless
Assignee from and against any and all loss, cost or expense (including, without
limitation, reasonable attorney's fees) resulting by reason of the failure of
Assignor to perform any of the obligations of the lessee under the Leases which
arise prior to the assignment thereof to Assignee.
4. Assignor does hereby assign, sell, convey and deliver to Assignee, its
successors and assigns, all of Assignor's right, title and interest in and to
the fixtures, equipment, machinery and other personal property owned by Assignor
(the "Personal Property") placed or installed on or about the real property
described in the leases.
5. ASSIGNEE TAKES THE PROPERTY DESCRIBED IN THIS ASSIGNMENT "AS IS-WHERE
IS" AND "WITH ALL FAULTS." ASSIGNOR HAS NOT MADE AND DOES NOT MAKE ANY
REPRESENTATIONS AS TO THE PHYSICAL CONDITION, OPERATION OR ANY OTHER MATTER
AFFECTING OR RELATED TO THE SUCH PROPERTY, EXCEPT AS HEREIN SPECIFICALLY SET
FORTH OR REFERRED TO, AND ASSIGNEE HEREBY EXPRESSLY ACKNOWLEDGES THAT NO SUCH
REPRESENTATIONS HAVE BEEN MADE. ASSIGNOR EXPRESSLY DISCLAIMS AND ASSIGNEE
ACKNOWLEDGES AND ACCEPTS THAT ASSIGNOR HAS DISCLAIMED TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY
KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, (i) THE VALUE, CONDITION, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OF THE
PROPERTY, (ii) THE MANNER OR QUALITY OF THE CONSTRUCTION OF THE MATERIALS, IF
ANY,
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INCORPORATED INTO ANY OF THE PROPERTY AND (iii) THE MANNER, QUALITY, STATE OF
REPAIR OR LACK OF REPAIR OF THE PROPERTY. ASSIGNOR IS NOT LIABLE OR BOUND IN ANY
MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED
TO HEREIN.
6. Assignor hereby covenants and agrees that Assignor will execute and
deliver to Assignee upon demand, from time to time, any further instrument or
instruments which are reasonably necessary to reaffirm, correct and/or perfect
this Assignment and the transfer to Assignee of the items described in this
Assignment.
7. This Assignment inures to the benefit of and is binding upon the
successors and assigns of the parties hereto.
8. This Assignment may be executed in a number of identical counterparts
which, taken together, constitute collectively one agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the day and year first written above.
ASSIGNOR:
_____________________________, a
___________________________________
By:________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE:
_____________________________, a
___________________________________
By:________________________________
Name:______________________________
Title:_____________________________
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Exhibit E
CONSENT AND RELEASE
THIS CONSENT AND RELEASE (this "Consent") is made and delivered as of the
_____ day of ___________, 200__, by _________________________, a
__________________________ ("Lessor"), to and for the benefit of
__________________________, a ___________________________ ("Lessee").
Recitals
A. Lessor and Lessee entered into that certain lease dated ______________
(the "Lease"), pursuant to which Lessee leased from Lessor certain premises
located at _______________________________________________________________ (the
"Premises").
B. Lessee and ____________, a ____________ ("Assignee"), have entered into
a Purchase and Sale agreement whereby Lessee may sell to Assignee certain assets
of Lessee ("Assets"), including, without limitation, the Lease. If the sale of
the Assets is completed, Lessee will assign to Assignee all of Lessee's right,
title and interest, as lessee, in, under and to the Lease, and Assignee will
assume all of the duties, obligations and liabilities of Lessee under the Lease
which arise from and after the assignment of the Lease from Lessee to Assignee.
C. Lessee has requested that Lessor grant its consent to the assignment of
the Lease and that Lessor release Lessee from all duties, obligations and
liabilities arising under the Lease from and after the assignment of the Lease
from Lessee to Assignee.
X. Xxxxxx has agreed to give such consent and release in accordance with
the terms, and conditions of this Consent.
Terms and Conditions
Based upon the foregoing Recitals, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound hereby, Lessor hereby agrees as follows:
1. Lessor's Consent to Assignment. If Lessee completes the sale of the
Assets to Assignee, Lessor hereby consents to the assignment of the Lease by
Lessee to Assignee upon the terms and conditions set forth in the Assignment.
2. Release of Lessee. If Lessee completes the sale of the Assets to
Assignee, Lessor hereby releases Lessee from all duties, obligations and
liabilities under the Lease which arise from and after the effective date of the
Assignment and agrees to recognize Assignee as the lessee under the Lease for
all purposes with respect to the performance of all duties, obligations and
liabilities of the lessee which arise under the Lease from and after the
effective date of the Assignment. By executing this Consent, Lessor hereby
acknowledges, agrees to and reaffirms its continuing rights, powers, duties,
obligations and liabilities under the Lease.
Lessor agrees that it will provide Lessee with written notice of any
default by Assignee under the Lease at the same time that any such notice is
provided to Assignee in accordance with the notice
E-1
provisions of the Lease. Lessor agrees to reserve to Lessee the right,
concurrent with Assignee, to cure any such within the cure period provided under
the default provisions of the Lease. For purposes of Lessee's cure right, the
cure period under the default provisions shall commence on the date notice is
received by Lessee. Such right, if exercised, shall act as a reassignment of the
Lease from Assignee to Lessee and Lessor hereby consents to a reassignment of
the Lease from Assignee to Lessee. Assignee agrees to reassign the Lease from
Assignee to Lessee, effective immediately upon expiration of the cure period as
provided for in the default provisions of the Lease if the Lessee has cured, and
the Assignee has not cured, in accordance with the default provisions of the
Lease. In the event of such reassignment Lessee shall perform all duties and
assume all obligations and liabilities arising under the Lease.
3. Consent to Assignment and Reassignment Only. The consent of Lessor,
which is given hereby, extends only to the assignment of the Lease to Assignee
and the reassignment of the Leases from Assignee to Lessee, and shall not apply
to any further assignment of the Lease. Any future assignment of the Lease or
subletting of the Premises, either in whole or in part, is subject to the
consent requirements of the Lease.
4. Status of Lease. The Lease is in full force and effect and there are no
defaults under the Lease as of the date of this Consent.
5. Governing Law. This Consent is to be governed by, and construed and
enforced in accordance with, the laws of the State of __________.
IN WITNESS WHEREOF, Lessor has executed this Consent for delivery as of the
date first above written.
LESSOR:
_________________________,
a ________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
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