EXHIBIT 10.9
ASSET PURCHASE AGREEMENT
This Asset
Purchase Agreement (the "Agreement") is made and entered into
as of November 5, 1999, 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
(collectively, "Seller"), and
SHENANDOAH PERSONAL COMMUNICATIONS COMPANY,
a Virginia corporation ("Buyer").
Recitals
A. Seller
owns or leases that certain property identified on the attached
Exhibit A (each a "Cell Site" and,
collectively, the "Cell Sites"), the
longitude and latitude location of which
are estimated and subject to variations
that customarily occur in building out cell
sites under a radio frequency plan.
B. Buyer
and Seller have entered into that certain Sprint PCS Management
Agreement dated November 5,1999 (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 (as defined below), 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 each Cell Site and all assets, rights, benefits
and
privileges
(whether tangible or intangible) related to such Cell
Site (collectively, the "Assets"), free and clear from all
liens
created by the Seller other than the Assumed Liabilities (as
defined
below). The consummation of this transaction (the "Closing")
will
occur, subject to the terms and conditions of this Agreement, on
the
first to occur of either (a) January 31, 2000, or (b) the date
on
which Manager obtains financing to acquire the Assets (the
"Closing
Date").
2.
Purchase
Price. The purchase price for the Assets (the "Purchase
Price") will equal the sum of:
(i) $35,000 per
cell site through lease execution;
(ii) $86,000 per cell
site through notice to proceed (i.e., cell
site is construction ready); and
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(iii) per cell site constructed as follows:
(a) $349,000 per
cell site tower less than 100 feet tall,
(b) $396,000 per
cell site tower between 100-200 feet tall,
(c) $357,000 per
cell- site tower greater than 200 feet
tall,
(d) $282,000 per
cell site co-locate,
(e) $297,000 per
rooftop cell site, or
(f) $195,000 per
build-to-suit cell site.
Each Cell Site will be allocated to only one stage of
development
completion, as described above. Cell Sites in a state of
partial
stage completion will be brought to full completion of such stage
by
Seller and will be priced accordingly.
The parties agree that, on or before the Closing Date, they
will determine the Purchase Price, based upon the then current
stage
of development completion of each Cell Site as set forth above,
and
will allocate the Purchase Price among the Assets accordingly,
and
neither party will make any claim or treat any item on its tax
returns in a manner that is inconsistent with such allocation.
3.
Review
Period. (a) For a period of three weeks commencing on the
date this Agreement is executed by both parties (the "Review
Period"), Buyer and its representatives may review such
documents
and make, or cause to be made by agents or contractors of
Buyer's
choosing, any and all physical, mechanical, environmental,
structural or other inspections of the Assets as Buyer deems
appropriate and as maintained in the ordinary course by Seller.
For
purposes of such review and inspection, Seller will make
available
to Buyer and Buyer's representatives, all documents and records
relating to the Assets and the Assumed Liabilities, and shall
afford
Buyer and Buyer's representatives reasonable access to the
Assets
and Assumed Liabilities, all during normal business hours.
(b) If, in Buyer's reasonable discretion, based upon the
results of Buyer's review and inspection of the Assets, Buyer
determines that up to, but no more than, three individual Cell
Sites
are unsatisfactory to Buyer, Buyer may by written notice
delivered
to Seller within the Review Period, which notice contains a
specific
description of the unsatisfactory condition, request that such
unsatisfactory condition as to such Cell Site(s) be rectified
by
Seller. Seller will, within 30 days after receiving Buyer's
written
notice described above, at Seller's election as to each
unsatisfactory Cell Site individually, either (i) correct the
unsatisfactory condition, (ii) renegotiate with Buyer the
Purchase
Price only as attributable to such unsatisfactory Cell Site, or
(iii) remove the unsatisfactory Cell Site from the Assets, with
a
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corresponding reduction in the Purchase Price in proportion to
the
amount thereof attributable to the unsatisfactory Cell Site. If
Buyer does not provide the above described notice to Seller
within
the Review Period, Buyer will be deemed to have waived its
rights
under this Paragraph 3. In no event will Buyer be relieved of
its
obligations under this Agreement, with regard to more than
three
Cell Sites.
4.
Assumption
of Liabilities. Buyer agrees to assume all liabilities,
debts, expenses and obligations of Seller under the contracts
and
leases related to each and all of the Cell Sites, to the extent
that
such liabilities, debts, expenses and obligations' relate to
and
arise during the period after the Closing Date (the "Assumed
Liabilities"). Bu
