AMENDMENT NUMBER ONE TO
ASSET ACQUISITION AGREEMENT
This Amendment Number One to Asset Acquisition Agreement (the "Amendment")
is dated as of January 31, 2001, and is by and among Unrestricted Subsidiary
Funding Company, a Delaware corporation ("Nextel"), and Arch Wireless, Inc., a
Delaware corporation ("Arch"), PageNet SMR Sub, Inc., a Delaware corporation
("PageNet SMR"), AWI Spectrum Co. Holdings, Inc., a Delaware corporation ("SPV
Holdings") and AWI Spectrum Co., LLC, a Delaware limited liability company
("SPV").
Reference is hereby made to the Asset Acquisition Agreement (the "Asset
Acquisition Agreement") dated as of January 24, 2001 by and among Nextel and
Arch, PageNet SMR, SPV Holdings and SPV.
Nextel, Arch, PageNet SMR, SPV Holdings and SPV have determined that it is
in their mutual best interests to amend the Asset Acquisition Agreement as
hereinafter set forth and have duly approved this Amendment and authorized its
execution and delivery.
1. All capitalized terms used herein, unless otherwise defined herein,
shall have the meanings given them in the Asset Acquisition Agreement, and each
reference in the Asset Acquisition Agreement to "this Agreement", "hereof",
"herein", "hereunder" or "hereby" and each other similar reference shall be
deemed to refer to the Asset Acquisition Agreement as amended hereby. All
references to the Asset Acquisition Agreement in any other agreement between the
parties hereto relating to the transactions contemplated by the Asset
Acquisition Agreement shall be deemed to refer to the Asset Acquisition
Agreement as amended hereby.
2. The parties hereby agree that Sections 1.01 and 1.02 of the Asset
Acquisition Agreement shall be amended in their entirety to read as follows:
"SECTION 1.01 TRANSFER OF PURCHASED ASSETS. Subject to satisfaction of the
conditions set forth in Article 8,
(a) on February 14, 2001, if the Bank Consents and the Series C
Consent are received on or before February 8, 2001 and there
is satisfaction of all conditions specified in Article 8 and
simultaneously with the funding of the Loans as provided in
Section 1.02, or
(b) if the Bank Consents and the Series C Consent are received
after February 8, 2001, on the seventh calendar day (which
is a day other than Saturday, Sunday or a federal holiday)
following Arch's receipt of the Bank Consents and the Series
C Consents and satisfaction of all conditions specified in
Article 8 and simultaneously with the funding of the Loans
as provided in Section 1.02,
PageNet SMR shall transfer and assign to SPV, and SPV shall acquire
from PageNet SMR, all of the Purchased Assets free and clear of all
Liens (as defined herein) except for Permitted Liens (as defined
herein), and the Assumed Management Agreements (as
defined herein), if any, for cash consideration of One Hundred Seventy
Five Million Dollars ($175,000,000). Such transfer shall be evidenced
by a ▇▇▇▇ of Sale and General Assignment in the form of Exhibit E
hereto. Such delivery shall take place at the offices of ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇-▇▇▇▇.
SECTION 1.02 LOANS AND OPINIONS. Subject to satisfaction of the
conditions set forth in Article 8,
(a) on February 14, 2001, if the Bank Consents and the
Series C Consent are received on or before
February 8, 2001 and simultaneous with the
transfer of the Purchased Assets to SPV, or
(b) if the Bank Consents and the Series C Consent are
received after February 8, 2001, on the seventh
calendar day (which is a day other than Saturday,
Sunday or a federal holiday) following Arch's
receipt of the Bank Consents and the Series C
Consent and simultaneous with the transfer of the
Purchased Assets to SPV,
Nextel shall fund the Loans (the "Funding Date"), SPV shall deliver
the Unsecured Note and a promissory note representing the Secured Loan
(the "Secured Note") in the form of Exhibit F hereto, and the SMR
Spectrum Security Agreement in the form of Exhibit G hereto (the
"Security Agreement"), SPV Holdings shall deliver the Guaranty and
Pledge Agreement in the form of Exhibit H hereto (the "Guaranty"), and
Arch, PageNet SMR, SPV Holdings and SPV shall cause the opinions in
the forms attached as Exhibit I, Exhibit J, Exhibit K, Exhibit L,
Exhibit M and Exhibit N hereto to be delivered. Such deliveries shall
take place at the offices of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇."
3. The parties hereby further agree that clause (iv) of Subsection (d)
of Section 10.01 of the Asset Acquisition Agreement shall be amended in its
entirety to read as follows:
"(iv) the failure of Nextel to make the Loans (x) on or before
February 14, 2001, if the Bank Consents and the Series C Consent are
received on or before February 8, 2001 and there is satisfaction of
the other conditions precedent thereto or (y) on or before the seventh
calendar day (which is a day other than Saturday, Sunday or a federal
holiday) following the receipt of the Bank Consents and the Series C
Consent and the satisfaction of the other conditions precedent
thereto."
4. The Asset Acquisition Agreement, as amended hereby, is hereby
ratified and confirmed in all respects.
2
IN WITNESS WHEREOF the parties have hereunto caused this Amendment to
be executed as of the date first above written.
UNRESTRICTED SUBSIDIARY FUNDING COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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ARCH WIRELESS, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
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Title: Executive Vice President and
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Chief Financial Officer
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PAGENET SMR SUB, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
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Title: Executive Vice President and
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Chief Financial Officer
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AWI SPECTRUM CO. HOLDINGS, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
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Title: Executive Vice President and
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Chief Financial Officer
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AWI SPECTRUM CO., LLC
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
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Title: Treasurer
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