EXHIBIT 10.41
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[*] IMPORTANT NOTE: Certain material, indicated by four asterisks ("****"), has
been omitted from this document pursuant to a request for confidential
treatment. The omitted material has been filed separately with the Securities
and Exchange Commission.
December 29, 2000
Xx. Xxxxxxx X. Xxxxxxx
iPCS Wireless, Inc.
0000 X. Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Re: Build-to-Suit Agreement
Dear Xxxx:
This letter agreement (this "Agreement") sets forth the build-to-suit agreement
between Trinity Wireless Towers, Inc. ("TWT") and iPCS Wireless, Inc. ("IPCS")
for at least seventy-five (75) wireless communications sites combined in the
States of Iowa and Nebraska (the "Development Area").
IPCS will provide TWT with a search ring for each site in the Development Area,
with radii for the search rings that will not vary materially from the
following: ****% of the sites will be proposed with one (1) mile radius search
ring; ****% of the sites will be proposed with a one-half (0.5) mile radius
search ring; and ****% of the sites will be proposed with a one-quarter (0.25)
mile radius search ring. TWT will advise IPCS in writing (which can be by
electronic mail transmission) within five (5) business days if TWT decides to
reject the site that would be located within the proposed search ring, which TWT
may do without need to state any reason; provided, however, that TWT may not
reject more than ****% of the sites in total in the Development Area, except
that any site TWT rejects (whether during the 5 day period or, if IPCS' RF
candidate approval has not yet occurred, up to the time of IPCS's RF candidate
approval) because there is another communications structure within the search
ring that will support at least one (1) wireless carrier, will not count toward
the ****% rejection limit. Each site not rejected by TWT is referred to herein
as a "Site", which term shall not include any site rejected by TWT.
For each Site, IPCS will deliver to TWT a ground lease assignment, if
applicable, and a long-term site lease agreement. The ground lease assignment
shall be in the form of the Assignment Agreement attached hereto as Exhibit A.
---------
The site lease agreement shall be in the form of the Site Lease attached as
Exhibit A to the Master Lease Agreement attached hereto as Exhibit B. The terms
--------- ---------
of the Site Lease will include a monthly anchor tenant rent of $**** per Site,
with a ****% annual escalator. The initial term of each Site Lease will be five
(5) years with four (4) 5-year renewal terms, subject to the terms of the
underlying ground lease. Each Site Lease will also include the "Network Ready
Date" (NRD) for such Site as the latest date for commencement of the Site Lease.
TWT and IPCS hereby agree that if such Network Ready Date is not met, the
provisions of Section 2.5 of that certain Construction and Oversight Services
Agreement, dated of even date herewith (the "Services Agreement"), between IPCS
and SDS Wireless, Inc. ("SDS"), an affiliate of TWT, shall apply, and SDS shall
be subject to the liquidated damages set out therein.
For each Site, TWT will agree to reimburse IPCS for all reasonable direct site
development costs incurred by IPCS in the fixed line item amounts set forth in
Exhibit B to the Assignment Agreement, with the total reimbursement per Site not
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to exceed $****. Additionally, TWT shall pay IPCS the sum of $**** per Site
within five (5) days of the commencement of the Site Lease for such Site.
Construction of a Site will begin within ten (10) working days after TWT attains
a building permit and IPCS delivers to TWT an Assignment Agreement and a Site
Lease, with the Site being completed as soon as possible thereafter. A project
manager will be assigned for this project and will be available in IPCS' office
at least once a week for updates and scheduling.
As part of the consideration for the execution of this Agreement by IPCS,
Trinity Wireless Services, Inc. ("TWS"), an affiliate of TWT, hereby agrees to
perform the following:
1. At each Site, purchase and install the initial equipment of IPCS as listed
on attached Exhibit C hereto or equivalently priced equipment as specified by
---------
IPCS (if such equivalently priced equipment is specified by IPCS, it will be
reflected on a revised Exhibit C that is initialed by all parties), at a fixed
---------
cost to IPCS of $**** per Site, which IPCS shall pay to TWS net 30 days. All
such equipment shall meet or exceed all IPCS requirements and any applicable
Sprint PCS Technical Program Requirements, provided, however, the parties agree
that if any change in either of the foregoing requirements shall arise resulting
in a material increase in the cost of the equipment listed on Exhibit C, the
---------
parties agree to meet and negotiate in good faith the payment of any additional
costs associated therewith. The installation of this equipment at the Site shall
be completed no later than the NRD specified for that Site. The antennas will be
installed on the tower to be constructed at that Site at the height specified by
IPCS at the time IPCS' RF engineer issues the "candidate approval" for that
Site, provided that IPCS may modify the specified height at any time up to the
earlier to occur of (i) commencement of installation of IPCS's antennas on the
tower by TWS, or (ii) TWT's commitment of such modified height to another
customer of TWT. TWT will give IPCS at least ten (10) days written notice of its
intention to commit any other space on the tower to any other party, and IPCS
shall have a right of first refusal to move from its then-current designated
height to the height specified in such notice, provided the cost of such move
shall be born by IPCS. IPCS shall give written notice exercising this right of
first refusal within ten (10) days of its receipt of the notice from TWT. If
IPCS does not respond in writing within the 10-day period, then TWT may lease
the proposed space to another tenant. The addresses for such notices shall be
the addresses of the parties provided in this Agreement, which may be changed by
subsequent written notice. Notice will be deemed to have been given upon
personal delivery or one (1) day after being sent by overnight courier with
proof of delivery.
2. TWS and IPCS agree that all of the provisions of Sections 6, 11 and 13.1 of
the Services Agreement shall apply as between TWS and IPCS and for the benefit
of IPCS and TWS, and that the same are incorporated herein by this reference as
fully as if set out herein with TWS appearing in the stead of SDS in all such
provisions.
3. In the event TWS shall fail to perform fully as specified above by the NRD
for any Site, the provisions of Section 2.5 of the Services Agreement shall
apply, and SDS shall be liable to IPCS for the liquidated damages set out
therein.
[****] CERTAIN PORTIONS INDICATED BY "****" HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
If TWS determines its costs for the purchase and installation of the IPCS
initial equipment listed on Exhibit C has increased materially after the
---------
completion of 75 Sites hereunder, TWS shall have the right to give written
notice to IPCS of its desire to renegotiate the related $**** price, and if the
parties cannot reach agreement on a new amount for this purchase and
installation within 30 days of IPCS's receipt of such notice TWS shall have the
right to terminate this Agreement by subsequent written notice. Additionally,
IPCS shall have the right to terminate this Agreement on 30 days written notice
after completing 75 Sites. Termination of this Agreement shall not prejudice the
rights of either party with respect to Sites subject to this Agreement prior to
the effectiveness of such termination.
TWT agrees the form of Ground Lease Agreement set forth as attached Exhibit D
---------
will be used for all Sites under this Agreement for which TWT performs the
ground lease acquisition as the underlying Prime Lease, as that term is defined
in the Master Lease Agreement attached hereto as Exhibit B. TWT shall have
---------
Exhibit D reviewed in advance of its use by competent legal counsel licensed to
---------
practice in Iowa, Nebraska, and any other state in which Sites may be located
under this Agreement, if any. TWT will obtain a letter from each such counsel
confirming the validity and enforceability of all of the provisions of the
Ground Lease Agreement under local law, and will promptly provide IPCS with
copies of all relevant correspondence from each such counsel. It is agreed that
the form of the Ground Lease Agreement may be modified from time to time for a
particular Site, however TWT agrees it will not make or permit any material
modifications to the form of Ground Lease Agreement set forth as Exhibit D with
---------
respect to any Site without the prior written consent of IPCS, which shall not
be unreasonably withheld. TWT further agrees to provide IPCS with a copy of the
actual executed Ground Lease Agreement for any Site for which TWT performs the
ground lease acquisition promptly upon execution, and to simultaneously provide
a separate copy marked to show the changes, if any, from the form attached as
Exhibit D.
---------
The parties acknowledge the proper and timely completion of the obligations of
TWT, TWS and SDS under this Agreement and any related agreements between any of
them and IPCS are essential to the business interests of IPCS. In the event of:
1) a default by TWT for failure to pay amounts due IPCS hereunder that remains
uncured for more than 30 days after written notice thereof; or 2) material and
repeated defaults by TWT, TWS and/or SDS in fulfilling the obligations under
this Agreement or any other related agreement with IPCS that remain uncured for
more than sixty (60) days after written notice thereof from IPCS, then IPCS
shall be entitled, at its election, to terminate this Agreement, and whether or
not this Agreement is terminated shall be entitled to recover all costs,
including reasonable attorneys' fees, incurred as a result of such default. The
notice required under subsection 2) above shall be separate from and in addition
to any other notice permitted or required under this Agreement or any other
agreement in place between IPCS and any of such entities. The rights set forth
in the preceding sentence shall be in addition to any and all other rights that
shall be available under any other agreement in place between any of the parties
and any remedies otherwise available at law or in equity.
Please execute both of the enclosed copies of this Agreement, keep one original
for your files and return the other original to the undersigned. We agree
execution may be by counterpart signatures, each of which shall be an original,
with both constituting a single document. If you have any questions regarding
this Agreement, please call me at 000-000-0000.
[****] CERTAIN PORTIONS INDICATED BY "****" HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
Sincerely,
TRINITY WIRELESS TOWERS, INC.
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
Address: 0000 X. Xxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
TRINITY WIRELESS SERVICES, INC.
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
Address: 0000 X. Xxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
SDS WIRELESS, INC.
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
Address: 0000 X. Xxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
AGREED AND ACCEPTED:
iPCS WIRELESS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President and
Chief Technical Officer
Exhibit List
------------
EXHIBIT A -- Assignment Agreement
---------
EXHIBIT B -- Master Lease Agreement
---------
EXHIBIT C -- Initial Equipment of IPCS
---------
EXHIBIT D -- Ground Lease Agreement
---------
EXHIBIT A
---------
Assignment Agreement
(see attached)
ASSIGNMENT AGREEMENT
--------------------
This Assignment Agreement (this "Assignment") is made this ______ day
of _______________, 2000 by iPCS Wireless, Inc., a Delaware corporation
("Assignor"), to TRINITY WIRELESS TOWERS, INC., a Texas corporation
("Assignee").
WHEREAS, on _______ _____________, as lessor, and Assignor, as lessee,
entered into a Lease Agreement attached hereto as Exhibit A (the "Lease")
---------
covering the real property (the "Site") described in Exhibit A; and
---------
WHEREAS, Assignor has agreed to assign to Assignee the leasehold
estate created under the Lease in favor of Assignor and all other rights under
the Lease, as well as all of Assignor's rights, title and interest in and to
(i) all studies, surveys, and reports related to the Site (the "Studies"), and
(ii) all governmental licenses, permits, and approvals obtained by Assignor and
regarding the Site ("Governmental Approvals"); and
WHEREAS, Assignee acknowledges that it intends to construct a tower on
the Site; and
WHEREAS, Assignee and Assignor have or will enter into a site lease
agreement ("SLA") whereby Assignee has or will sublease a portion of the Site to
Assignor (the "Premises") for the purpose of installing and maintaining a
wireless telecommunications facility; and
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration and the promises set forth herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
W I T N E S S E T H:
- - - - - - - - - -
Assignor, does hereby GRANT, CONVEY, ASSIGN, TRANSFER and SET OVER
unto Assignee, its successors and assigns, all of Assignor's right, title and
interest under the Lease, including, without limitation, all advanced rents and
security deposits accruing thereto and all other rights, easements, titles and
options conferred upon Assignor thereby.
Assignee agrees to pay Assignor the sum equivalent to that listed in
Exhibit "B" attached hereto (the "Reimbursement Fee"), and incorporated herein
-----------
by this reference within thirty (30) days after the commencement of the SLA. The
Reimbursement Fee shall, among other things, reimburse Assignor for its site
acquisition expenses for the Site.
Assignor agrees that it will indemnify and hold Assignee harmless from
and against any and all losses, costs, expenses (including reasonable attorneys'
fees), liability, claims, demands, actions and judgments of every kind and
character (collectively, "Claims") suffered by, recovered from or asserted
against Assignee on account of any obligation of the lessee under the Lease
accruing prior to the date hereof or otherwise arising out of or related to any
act, fact, occurrence, omission, statement, representation or warranty occurring
prior to the date hereof.
Assignor hereby represents and warrants unto Assignee that Assignor is
the lessee under the Lease and has the right to assign, and is hereby assigning,
the leasehold estate free and clear of any and all encumbrances, subject only to
the terms of the Lease and any encumbrances disclosed in any title commitment
previously delivered to Assignee by Assignor; that Assignor has delivered all
notices to the lessor under the Lease that are required to be given as a
condition of assignment; that Assignor has not executed or granted any
modifications to, or extensions whatsoever of, the Lease; that the Lease is
valid and subsisting and in full force and effect; that, to the best of
Assignor's knowledge, there are no defaults now existing under the Lease and no
event has occurred and no condition exists which with the passage of time or the
giving of notice, or both, would constitute such a default;
that Assignor has complied with all of the obligations of lessee under the
Lease; and that no amount of money is owed to any person by Assignor in its
capacity as lessee under the Lease.
Assignee hereby expressly assumes and agrees to assume the obligations
and liabilities of Assignor under the Lease, save and except for liabilities and
obligations accruing prior to the date hereof or arising out of or related to
any act, fact, occurrence, omission, statement, representation or warranty
occurring prior to the date hereof.
Assignee agrees that it will indemnify and hold Assignor harmless from
and against any and all Claims suffered by, recovered from or asserted against
Assignor on account of any obligation of the lessee under the Lease, save and
except for Claims accruing prior to the date hereof or arising out of or related
to any act, fact, occurrence, omission, statement, representation or warranty
occurring prior to the date hereof.
Assignor does hereby GRANT, CONVEY, ASSIGN, TRANSFER and SET OVER unto
Assignee, its successors and assigns, the Studies and Governmental Approvals,
and all other rights conferred upon Assignor thereby. Assignee understands and
agrees that if additional permits or consents are required for Assignee's use,
Assignee shall obtain same at Assignee's sole cost and expense.
The covenants and representations contained herein shall bind and
inure to the benefit of Assignor and Assignee and their respective successors
and assigns.
This Assignment may be executed in any number of counterparts with the
same effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
This Assignment shall be controlled by and construed in accordance
with the laws of the state where the real property described in the Lease is
located.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURE PAGE
IMMEDIATELY FOLLOWS.]
IN WITNESS WHEREOF, this Assignment is executed effective as of the
date first above written.
ASSIGNOR:
--------
WITNESSES: iPCS Wireless, Inc.
_________________________ By: ______________________________
Name: ______________________________
_________________________ Title: ______________________________
STATE OF ___________ )
) SS:
COUNTY OF ___________ )
On _____________________, before me, ________________________________, a Notary
Public, ____________________________ personally appeared, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument, the entity upon behalf of which the person acted, executed
the instrument.
__________________________________________________
Notary Public in and for the State of ____________
My Commission expires: ___________________________
ASSIGNEE:
--------
TRINITY WIRELESS TOWERS, INC.
WITNESSES:
___________________________
Name: By: ___________________________
Name: Xxxxx Xxxxxxxx
---------------------------
Title: Vice President
___________________________ ---------------------------
Name:______________________
STATE OF TEXAS )
) SS:
COUNTY OF DALLAS )
On _____________________, before me, Xxxxx X. Xxxxxx/Xxxxx X. Xxxxx/Xxxxxxx
Xxxxxx, notary public, Xxxxx Xxxxxxxx personally appeared, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument, the entity upon behalf of which the person acted,
executed the instrument.
____________________________________________
Notary Public in and for the State of Texas
My Commission expires: _____________________
EXHIBIT A To Assignment Agreement
---------
(see attached)
EXHIBIT B To Assignment Agreement
SCHEDULE OF REIMBURSEMENT FEES
------------------------------
--------------------------------------------------------------
Site Leased and Zoning Approved $****
--------------------------------------------------------------
Soils Study $****
--------------------------------------------------------------
ALTA Survey (including 2C) $****
--------------------------------------------------------------
Title Report $****
--------------------------------------------------------------
FAA Study (ASAC letter and 7460-1 if applicable) $****
--------------------------------------------------------------
Environmental (Phase 1 only) $****
--------------------------------------------------------------
Construction Drawings $****
--------------------------------------------------------------
Building Permit $****
--------------------------------------------------------------
Tower Foundation Design $****
--------------------------------------------------------------
Tower Drawings $****
--------------------------------------------------------------
--------------------------------------------------------------
TOTAL DUE ASSIGNOR: $****
--------------------------------------------------------------
[****] CERTAIN PORTIONS INDICATED BY "****" HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT B
---------
Master Lease Agreement
(Filed separately as Exhibit 10.43.)
EXHIBIT C
---------
Xxxxxx cable (up to 200 feet)
1 5/8" LDF7-50A
7/8" LDF5-50A
Northern Tech. PPC (power/telco distribution cabinet)
N2102-W01
A&A Steel Equipment Platform or Xxxxxxxx Welding
No part number, just called `BTS Platform'
Six (6) panel antennas - Most prevalent antenna used by IPCS
DAPA 88212
EXHIBIT D
---------
Ground Lease Agreement
(see attached)
GROUND LEASE AGREEMENT
This Ground Lease Agreement ("Ground Lease") is by and between Trinity
Wireless Towers, Inc., a Texas corporation, having a principal place of business
at 0000 X. Xxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 ("Lessee") and ___________
________________, a __________________, having an address of ___________________
("Lessor").
For good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Lease and Premises.
------------------
(a) Lessor is the owner of and holder of marketable title to a parcel of
land located in the _______ of ____, County of ______, State of ________________
____________ known as ______________________________, more particularly
described in Exhibit A attached hereto ("Property"). Lessor hereby leases to
Lessee and Lessee leases from Lessor approximately _____________________________
(________) square feet of space, more fully described in Exhibit B attached
hereto (the "Premises"), subject to and in accordance with the provisions of
this Ground Lease. Lessor shall maintain the Property so as not to interfere
with Lessee's use of the Premises and rights under this Ground Lease.
(b) Lessor hereby grants to Lessee, for use by Lessee, its employees,
representatives, invitees, contractors, and Users (hereinafter defined),
easement(s) appurtenant (the "Easement") to the Premises over, under, and across
the portion of Property described on Exhibit B attached hereto for the non-
exclusive use of Lessee, its successors and assigns and their respective
employees, representatives, invitees, contractors, and Users for access to and
from the Premises by cars, motorcycles, and trucks, and for the installation,
use, maintenance, repair, removal, replacement, and enlargement from time to
time of utility lines, phone lines, and similar features, and related equipment
serving the Premises. The easements granted under this paragraph 1(b) shall
expire and be of no further force or effect upon the expiration or earlier
termination of this Ground Lease.
2. Use of Premises.
---------------
(a) Lessee shall have the right to install, construct, repair, replace,
operate, and maintain a wireless communications transmission and reception
facility on the Premises, including, without limitation, communications
equipment poles or tower structures, shelter buildings, telephone, electric and
radio cables and other transmission lines, fencing, and other related equipment
and facilities (for use and occupancy by providers of wireless communications
services ("Users")), collectively, referred to as the "Site Compound." Lessee
has the right to remove all of the Site Compound, at its sole expense, on or
before the expiration or earlier termination of the Ground Lease. Lessee agrees
to repair any damage to the Premises caused by Lessee, and to restore the
Premises to its condition as on the Commencement Date (as defined below),
ordinary wear and tear and damage from the elements excepted. Lessee shall not
be required to remove any foundation more than one (1) foot below grade level at
any time.
(b) In connection with the Site Compound, Lessee and/or Users shall have
the right, at their sole cost and expense, to obtain electrical and telephone
service directly from the servicing utility company, including the right to
install a separate transformer, meter and main breaker, where required. Lessee
or Users shall be responsible for the utilities consumed at the Site Compound at
the normal rate charged by the servicing utility company. Lessee and Lessor
agree that if an easement is required to obtain and maintain utility services,
an easement will be granted by Lessor at an acceptable location agreed to by
Lessor and the servicing utility company.
(c) Lessee shall have the right to use whatever measures it deems
reasonably appropriate to install and secure the Site Compound on the Premises.
Lessor agrees to cooperate with Lessee in making application for and obtaining,
at Lessee's expense, any local, state, federal licenses, permits, and any other
approvals (the "Approvals"), which may be required to allow Lessee use of the
Premises. Lessee shall employ due diligence to obtain Approvals in a timely
manner. If, however, Lessee is denied or is unable to obtain a required
Approval, Lessee shall have the exclusive right to terminate this Ground Lease
within its sole discretion, and no further liabilities under this Ground Lease
shall remain in force or effect, including but not limited to the payment of
Rent (as defined below).
(d) Lessor agrees to provide twenty-four (24) hours, seven (7) days a week
access to the Premises without charge to Lessee, or Lessee's employees, Users,
contractors, subcontractors or agents, which access shall remain unimpeded
throughout the Term and any Renewal Term of this Ground Lease.
(e) Lessor shall maintain any existing access roadway on the Property from
the nearest public roadway to the Premises in a manner that is sufficient for
pedestrian and vehicular access at all times. Lessor shall be responsible for
maintaining and repairing such roadway, at its sole expense, with the exception
of any damage to roadway caused by Lessee or its agents or Users. Lessee shall
maintain and repair, at its sole cost and expense, any access roadway it creates
on the Property, with the exception of any damage to such roadway caused by
Lessor or its agents.
3. Site Testing. Lessor acknowledges that Lessee, at its option, may,
------------
following full execution of this Ground Lease and prior to the Commencement Date
(as defined below), enter the Property to perform engineering surveys,
structural analysis reports, Phase I environmental assessments, or any other
testing or reports which may be required in order for Lessee to occupy the
Premises as described in this Ground Lease. Lessor agrees to provide to Lessee,
upon request, such information as Lessor has in its possession or control
regarding the Premises, including title materials, leases, survey plans,
environmental assessments, or other reports and copies of permits and approvals.
Any test results or reports that are unsatisfactory to Lessee for any reason
will entitle Lessee, at its option, to terminate this Ground Lease, and no
further liabilities under this Ground Lease shall remain in force or effect,
including but not limited to the payment of Rent (as defined below).
4. Interference and Competition. After the execution of this Ground
----------------------------
Lease, Lessor, its agents, lessees or licensees shall not install or permit the
installation of any structure or broadcasting equipment, or other communications
equipment on the Property unless authorized in writing by Lessee.
5. Term. The initial term of this Ground Lease shall be for a period of
----
five (5) years ("Term") commencing on the thirtieth day following the completion
of construction of the Site Compound (the "Commencement Date"), and shall
terminate on the fifth (5/th/) anniversary of the Commencement Date, unless
sooner terminated in accordance with this Ground Lease. Lessee shall have the
right to renew the Ground Lease for ten (10) successive five (5) year periods
(each a "Renewal Term"), upon the same terms and conditions in effect during the
Term. This Ground Lease shall automatically renew for each successive Renewal
Term unless Lessee provides
written notice to Lessor of its intention not to renew at least thirty (30) days
prior to the expiration of the Term or any Renewal Term.
6. Rent. Lessee agrees to pay to Lessor as annual rent the sum of
----
_____________ Dollars ($_________) ("Rent") payable in equal monthly
installments on the first day of each calendar month during the Term and any
Renewal Term, except that the first payment of Rent shall be made within ten
(10) business days following the Commencement Date as defined in section 5
hereto. In the event the Commencement Date does not fall on the first day of a
month, the first and last monthly payment of Rent shall be prorated accordingly.
At the beginning of each Renewal Term, Rent shall increase _________ percent
(_________%) over the Rent for the previous Term or Renewal Term. Rent payments
shall be payable to Lessor at the address set forth above or at such other
address as Lessor shall notify Lessee in accordance with Paragraph 15.
7. Taxes. If personal property taxes are assessed, Lessee shall pay any
-----
portion of such taxes directly attributable to the Site Compound. Lessor shall
pay all real property taxes, assessments and deferred taxes on the Property. If
any increase to Lessor's real property taxes is the direct result of Lessee's
improvements to the Premises, then Lessee will reimburse the Lessor its
proportionate share of such tax increase provided that, as a condition of
Lessee's obligation to pay such tax increases, Lessor shall provide to Lessee
documentation from the taxing authority, reasonably acceptable to Lessee,
indicating that the increase is due to Lessee's improvements.
8. Insurance; Waiver of Subrogation.
--------------------------------
(a) Lessee, at its sole cost and expense shall provide and maintain,
during the Term of this Ground Lease and any Renewal Terms, commercial general
liability insurance with combined single limit coverage of One Million Dollars
($1,000,000). Lessee shall name Lessor as an additional insured on Lessee's
insurance policy and provide Lessor, at its request, with an insurance
certificate.
(b) Lessor and Lessee each hereby waive any rights it may have against the
other (in the event the other party is insured and including, but not limited
to, a direct action for damages) on account of any loss or damage occasioned to
Lessor or Lessee, as the case may be (EVEN IF (A) SUCH LOSS OR DAMAGE IS CAUSED
BY THE FAULT, NEGLIGENCE, OR OTHER TORTIOUS CONDUCT, ACTS OR OMISSIONS
[EXCLUDING GROSS NEGLIGENCE AND WILLFUL MISCONDUCT] OF THE RELEASED PARTY OR THE
RELEASED PARTY'S DIRECTORS, EMPLOYEES, AGENTS OR INVITEES AND/OR (B) THE
RELEASED PARTY IS STRICTLY LIABLE FOR SUCH LOSS OR DAMAGE), to their respective
property, the Property or the Site Compound arising from any risk (without
regard to the amount of coverage or the amount of deductible) covered by the
waiving party's insurance which is in effect at the time of the loss or damage.
Without in any way limiting the foregoing waivers and to the extent permitted by
applicable law, the parties hereto, each on behalf of their respective insurance
companies insuring the property of either Lessor or Lessee against any such
loss, waive any right of subrogation that Lessor or Lessee or their respective
insurers may have against the other party or their respective officers,
directors, employees, agents, Users, or invitees and all rights of their
respective insurance companies based upon an assignment from its insured. Within
thirty (30) days of the Commencement Date, Lessor and Lessee each agree to give
their respective insurer written notification of the terms of the mutual waivers
contained in this section and to have said insurance policies properly endorsed,
if necessary, to prevent the invalidation of said insurance coverage by reason
of said waivers.
9. Indemnification.
---------------
(a) Lessor and Lessee each agree to indemnify and hold harmless the other
party from and against any and all claims, damages, liabilities, obligations,
costs and expenses, (including, without limitation, reasonable attorney fees),
actions and causes of action (collectively "Claims") to the extent caused by or
arising out of (a) the negligent acts or omissions or willful misconduct in the
operations or activities on the Property by the indemnifying party or the
employees, agents, contractors, licensees, Users, tenants and/or subtenants of
the indemnifying party, and (b) a breach of any obligation of the indemnifying
party under this Ground Lease.
(b) In addition to the indemnity and hold harmless agreements contained in
the preceding paragraph:
(i) Lessor shall indemnify and hold harmless Lessee from and against any and
all Claims arising out of or in any way related to environmental conditions
(including, without limitation, those related to hazardous substances,
hazardous wastes, toxic wastes and materials, hydrocarbons and protected
wetlands) existing on the Property or the Premises, provided that as to the
Premises, such environmental condition shall have arisen prior to the date
hereof, or exist by reason of the actions of a party or parties other than
Lessee, its agents, representatives, or contractors; and
(ii) Lessee shall indemnify and hold harmless Lessor from and
against any and all Claims arising out of environmental conditions
(including, without limitation, those related to hazardous substances,
hazardous wastes, toxic wastes and materials, hydrocarbons and
protected wetlands), existing on the Premises, provided that such
conditions are caused by Lessee, its agents, representatives or
contractors.
(c) Without in any way limiting the indemnity and hold harmless
obligations under paragraphs (a) and (b) of this Section, to the extent any
Claims are actually incurred by the indemnified party, the indemnifying party
shall reimburse the indemnified party for the amount of such Claims.
(d) Notwithstanding the preceding paragraphs of this Section, the
indemnification, hold harmless and reimbursement obligations shall not extend to
(i) Claims arising out of the willful misconduct or gross negligence of the
indemnified party or (ii) indirect, special, incidental or consequential
damages, including, without limitation, loss of profits, income or business
opportunities to the indemnified party.
10. Right to Lease and Warranty of Title. Lessor represents and warrants
------------------------------------
that: (a) Lessor has the sufficient right, title and interest in the Property
to enter into this Ground Lease and to grant Lessee its rights hereunder; (b)
Lessor has not entered into any agreement with any third party which would
require such party's consent hereto or preclude or limit Lessor's performance of
its obligations under this Ground Lease; (c) Lessor owns the Property in fee
simple and has the right to grant access to and use of the Premises; (d) so long
as Lessee complies with the terms and conditions of this Ground Lease, Lessor
shall provide to Lessee quiet and peaceful enjoyment and exclusive possession of
the Premises; and (e) Lessor warrants that neither the Property nor the Premises
are subject to a lien or financing arrangement not disclosed
pursuant to Section 19 hereof. Lessor shall notify Lessee of any liens filed
against the Premises subsequent to the execution of this Ground Lease. Lessor
must obtain Lessee's prior written approval to entering into any mortgage/deed
of trust agreement on the Property, subsequent to the execution of this Ground
Lease.
11. Assignment and Subletting. Lessee shall have the absolute right to
-------------------------
assign or transfer its rights under this Ground Lease to any party or to
sublease any portion of the Premises to any party, including, without
limitation, an affiliate of Lessee and Users, without the consent of Lessor.
Furthermore, Lessee may assign, pledge, mortgage or otherwise encumber its
interest in this Ground Lease to any third party (a "Financing Entity") as
security for any loan or other financing relationship, without the consent of
Lessor. A Financing Entity may enforce its rights under its leasehold mortgage
or other financing documents ("Leasehold Mortgage") and acquire title to
Lessee's interest in the Premises and Property under this Ground Lease in any
lawful way, and pending foreclosure of such Leasehold Mortgage, take possession
of the Premises. If a Financing Entity shall acquire title to Lessee's interest
in this Ground Lease by whatever means, including without limitation by
foreclosure or otherwise, then the Financing Entity may freely assign this
Ground Lease without Lessor's consent.
12. Default.
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(a) No event of default (a "Default") shall be deemed to have occurred
hereunder unless either party, after notice from the other party in accordance
with Paragraph 15: (i) fails to pay any monetary obligation when due and does
not cure such failure within fifteen (15) days after such notice, or (ii)
commits a material breach of its non-monetary obligations under this Ground
Lease and fails within thirty (30) days after such notice thereof to cure or
commence curing the breach and continuously and diligently pursue such cure to
its completion in not more than sixty (60) days after such notice. Upon the
occurrence of a Default as set forth in the preceding sentence, and subject to
the provisions of Section 12(b), the non-defaulting party shall have the right
to terminate this Ground Lease on ten (10) days written notice to the other
party in accordance with Paragraph 15, provided the Default is not cured within
the applicable cure period. Lessor shall send each Financing Entity a copy of
each notice of Default hereunder in accordance with Section 15 at the same time
it gives such notice to Lessee hereunder.
(b) Notwithstanding anything in this Ground Lease to the contrary, if,
pursuant to the provisions of this Ground Lease or as a matter of law, Lessor
shall have the right to terminate this Ground Lease, then Lessor shall take no
action to terminate the Ground Lease without first giving to the Financing
Entity written notice of such right, a description of the Default in reasonable
detail, and a reasonable time thereafter (i) to obtain possession of the
Premises (including possession by a receiver) and, in the case of a Default
susceptible of being cured by the Financing Entity, to cure such Default after
obtaining possession, or (ii) in the case of a Default not so susceptible of
being cured, to institute, prosecute and complete foreclosure proceedings to
otherwise acquire Lessee's interest under this Ground Lease; provided however,
that the Financing Entity shall not be obligated to continue such possession or
continue such foreclosure proceedings after such Default shall have been cured.
13. Collateral Assignment. Lessor hereby (a) consents to the collateral
---------------------
assignment and granting, if any, of a security interest from time to time in
favor of a Financing Entity (i) in and to the Site Compound, (ii) in the
personal property owned by Lessee and located at the Premises and Property, and
(iii) all subleases by Lessee of all or any portion of the Premises and Property
and the rents, issues and profits therefrom, if any; (b) agrees that any
interest that Lessor may have in such personal property or subleases, as the
case may be, whether granted
pursuant to this Ground Lease or by statute, shall be subordinate to the
interest of any such Financing Entity, and (c) agrees to recognize the Financing
Entity as Lessee under this Ground Lease (or to enter into a New Lease with such
Financing Entity as set forth in Section 21) upon the written election of
Financing Entity so long as any existing default has been cured as provided
hereunder. Lessor hereby further agrees to permit the Financing Entity to remove
from the Property or inspect any of the collateral in which the Financing Entity
has been granted a security interest by Lessee in accordance with any security
documents granted in favor of the Financing Entity, provided, however, such
removal is in accordance with subparagraph 2(a) of this Lease.
14. Estoppel Certificates. Lessor shall from time to time, within ten (10)
---------------------
days after receipt of request by Lessee, deliver a written statement addressed
to Lessee or any Financing Entity certifying:
(a) that this Ground Lease is unmodified and in full force and effect (or
if modified that this Ground Lease as so modified is in full force and effect);
(b) that the lease attached to the certificate is a true and correct copy
of this Ground Lease, and all amendments hereto;
(c) that to the knowledge of Lessor, Lessee has not previously assigned or
hypothecated its rights or interests under this Ground Lease, except as
described in such statement with as much specificity as Lessor is able to
provide;
(d) the term of this Ground Lease and the Rent then in effect and any
additional charges;
(e) the date through which Lessee has paid Rent;
(f) that Lessee is not in default under any provision of this Ground Lease
(or if in default, the nature thereof in detail) and a statement as to any
outstanding obligations on the part of Lessee and Lessor; and
(g) such other matters as are reasonably requested by Lessee.
Without in any way limiting Lessee's remedies which may arise out of
Lessor's failure to timely provide an estoppel certificate as required herein,
Lessor's failure to deliver such certificate within such time shall be
conclusive (i) that this Ground Lease is in full force and effect, without
modification except as may be represented by Lessee; (ii) that there are no
uncured defaults in Lessee's or Lessor's performance hereunder; and (iii) that
no Rent for the then current month, has been paid in advance by Lessee.
15. Notices. Unless otherwise provided herein, any notice or demand
-------
required to be given herein shall be given in writing by certified or registered
mail, return receipt requested or reliable overnight courier to the address of
Lessor as set forth above, and if to Lessee, to 0000 X. Xxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000; Attn: Property Manager, with a copy to 0000 X. Xxxxx Xxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000; Attn: General Counsel. Lessee and Lessor may
designate a change of notice address by giving written notice to the other
party. Copies of all notices sent hereunder shall also be given to any
Financing Entities at the address set forth on Schedule 15 hereto, as such
schedule is amended from time to time by Lessee as it enters into a Leasehold
Mortgage.
16. Destruction or Condemnation.
---------------------------
(a) If the Premises are damaged or destroyed by casualty or condemned such
that Lessee is unable to operate the Site Compound as contemplated in this
Ground Lease, then within thirty (30) days after such occurrence, Lessee may
elect to terminate this Ground Lease as of the date of the damage, destruction
or condemnation. If Lessee chooses not to terminate this Ground Lease, the Rent
shall be reduced or abated in proportion to the actual reduction or abatement of
use of the Premises so long as such reduced or abated use exists.
(b) Notwithstanding anything in this Ground Lease to the contrary, in the
event of any casualty to or condemnation of the Premises or any portion thereof
during such time as any Leasehold Mortgage shall remain unsatisfied, the
Financing Entity shall be entitled to receive all insurance proceeds and/or
condemnation awards (up to the amount of the indebtedness secured by the
Leasehold Mortgage) otherwise payable to Lessee or Lessor or both and apply them
in accordance with the Leasehold Mortgage and shall have the right, but not the
obligation, to restore the Premises.
17. Amendment. No amendment or modification to any provision of this
---------
Ground Lease shall be valid unless made in writing and agreed to and signed by
the party to be bound and each Financing Entity.
18. Memorandum of Ground Lease. Lessor acknowledges, will execute, and
--------------------------
gives Lessee the right to file a Memorandum of Ground Lease in the form attached
hereto as Exhibit "C" in the county office where the Property is located.
19. Non-Disturbance Agreements. Lessor has disclosed to Lessee the
--------------------------
identity of all persons or entities, if any, in whose favor Lessor has granted a
mortgage or deed of trust on the Property as of the Effective Date of this
Ground Lease. Should the Property be so encumbered by any mortgage or deed of
trust, Lessor shall obtain from mortgagees or trustees existing on the Effective
Date, and shall obtain from any permitted subsequent mortgagees or trustees as
set forth in Section 10, a non-disturbance and attornment of Ground Lease in
favor of Lessee, satisfactory to Lessee and any Financing Entity of Lessee.
20. Liens and Security Interests.
----------------------------
(a) Lessor agrees and acknowledges that for so long as this Ground Lease
and any New Lease (defined below) shall be in effect, Lessee (or the holder of
Lessee's interest in the Ground Lease or any New Lease) shall own any and all
improvements, buildings, structures and equipment on or about the Premises, and
Lessor waives any lien rights it may have concerning the Site Compound which are
deemed personal property and not fixtures, and Lessee has the right to remove
the same at any time without Lessor's consent.
(b) Lessor acknowledges that Lessee may enter into a financing arrangement
including promissory notes, financial and security agreements, operating or
financial lease agreements, for the financing of the Site Compound
("Collateral") with a third party (and it may enter into other such arrangements
with other entities). Lessor (i) consents to the installation of the
Collateral; (ii) disclaims any interest in the Collateral and (iii) agrees that
the Collateral shall
be exempt from execution, foreclosure, sale, levy, attachment, or distress for
any Rent due or to become due and that such Collateral may be removed at any
time without recourse or legal proceedings.
21. Termination. This Lease may be terminated without further liability
-----------
upon thirty (30) days prior written notice by Lessee if Lessee determines that
the Premises are not appropriate for its operations for legal, economic or
technological reasons, including, without limitation, signal interference.
Lessee has the absolute right to terminate this Ground Lease at any time, prior
to the Commencement Date for any or no reason.
22. New Lease. In the event of a termination of this Ground Lease for any
---------
reason other than by expiration of the term, the Financing Entity shall have the
right, in addition to any other rights set forth herein, to elect to demand a
new lease of the Property and Premises (a "New Lease"), exercisable by notice in
writing to the Lessor within sixty (60) days after the giving of notice by
Lessor to such Financing Entity of such termination, for the balance of the term
hereof effective as of the date of such termination, at the rent and upon all of
the other terms, provisions, covenants and agreements set forth in this Ground
Lease; provided that, concurrently with the delivery of such notice, the
Financing Entity shall have performed and thereafter shall continue to perform
all obligations of Lessee hereunder capable of being performed by such Financing
Entity which would have accrued hereunder had this Ground Lease remained in
force until the time of such delivery. The parties shall act promptly after
such notice and performance to execute such New Lease. Any such New Lease shall
be superior and not subordinate to any mortgage upon Lessor's fee interest in
the Premises hereafter given; and any such New Lease may, at the option of
Financing Entity, name as lessee a nominee of the Financing Entity. If as a
result of any such termination the Lessor shall succeed to the interests of
Lessee under any sublease of the Property, Premises or any portion thereof,
Lessor shall execute and deliver an assignment of all such interests to the
Lessee under the New Lease, simultaneously with the delivery of such New Lease.
23. Miscellaneous.
-------------
(a) This Ground Lease shall be governed by the laws of the state in which
the Property is located.
(b) This Ground Lease constitutes the entire agreement and understanding
between the parties, and shall be binding on and inure to the benefit of the
successors, transferees in title, and permitted assignees of the respective
parties.
(c) Consent or approval of Lessor, where required, shall not be
unreasonably withheld, delayed or denied.
(d) If any provision of this Ground Lease is deemed invalid or
nonenforceable, the remainder of this Ground Lease shall remain in force and to
the fullest extent as permitted by law.
(e) The "Effective Date" of this Ground Lease shall be the date on which
this Ground Lease has been fully executed by all of the parties hereto.
(f) Lessor shall not, without the written consent of Lessee, disclose to
any third party any of the terms or conditions of this Ground Lease, or any
information provided during negotiation of this Ground Lease, other than as
disclosed by recording of the Memorandum of Lease Ground Lease, as required by
final order of a court of competent jurisdiction, or to Lessor's financial or
legal representatives.
(g) Lessor's recourse against any Financing Entity shall be expressly
limited to such Financing Entity's interest in this Ground Lease.
(h) Exhibits "A", "B" and "C" attached hereto, as well as addenda and
riders identified below are made a material part of this Ground Lease.
Addenda: ______________________
Riders: ______________________
IN WITNESS WHEREOF, the parties have executed this Ground Lease as of the
Effective Date.
LESSOR: LESSEE:
[Insert name of Lessor as it appears TRINITY WIRELESS TOWERS, INC.,
on the deed and delete this reference. a Texas corporation
By: _____________________ By: __________________________
Name: _____________________ Name: Xxxxx Xxxxxxxx
--------------------------
Title: _____________________ Title: Vice President
--------------------------
Date: _____________________ Date: __________________________
Tax ID No.: ________________
SCHEDULE 15
Addresses for notice to Financing Entities:
EXHIBIT "A"
DESCRIPTION OF PROPERTY
Forming a part of the Ground Lease by and between _________________, as Lessor,
and TRINITY WIRELESS TOWERS, INC., a Texas corporation, as Lessee .
The Property is described and/or depicted as follows:
Address:
Parcel Id Number:
EXHIBIT "B"
DESCRIPTION OF PREMISES
Forming a part of the Ground Lease by and between _________________, as Lessor,
and TRINITY WIRELESS TOWERS, INC., a Texas corporation, as Lessee.
The Premises is described and/or depicted as follows:
Notes:
1. This Exhibit may be replaced by a land survey of the Premises once Lessee
receives it.
2. Setback of the Premises from the Land's boundaries shall be the distance
required by the applicable governmental authorities.
3. Width of access road shall be the width required by the applicable
governmental authorities, including police and fire departments.
4. The type, number and mounting positions and locations of antennas and
transmission lines are illustrative only. Actual types, numbers, mounting
positions may vary from what is shown above.
EXHIBIT "C"
MEMORANDUM OF GROUND LEASE
This Memorandum of Ground Lease is entered into by and between __________,
a __________, with an address at ___________, ("Lessor") and TRINITY WIRELESS
TOWERS, INC., a Texas corporation, with an office at 0000 X. Xxxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000 ("Lessee") .
1 Lessor and Lessee entered into a Ground Lease Agreement ("Ground
Lease") for the purpose of constructing, installing, operating and maintaining a
wireless communications facility and related improvements. All of the foregoing
are set forth in the Ground Lease.
2. The term of the Ground Lease is for five (5) years, commencing thirty
days from completion of construction, with __________ successive five (5) year
options to renew.
3. The Property which is the subject of the Ground Lease is described in
Exhibit "A" annexed hereto. The portion of the Property being leased to Lessee
("Premises") is described in Exhibit "B" annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Ground
Lease as of the dates written below.
LESSOR:
[INSERT NAME OF LESSOR AS IT APPEARS IN THE DEED, AND DELETE THIS REFERENCE]
----------------------------------------------------------------------------
WITNESSES:
By: ----------------------- By: -----------------------
Name: ----------------------- Name: -----------------------
Title: ----------------------- By: -----------------------
Date: ----------------------- Name: -----------------------
LESSEE:
TRINITY WIRELESS TOWERS, INC., WITNESSES:
a Texas corporation
By: ----------------------- By: -----------------------
Name: Xxxxx Xxxxxxxx
----------------------- Name: -----------------------
Title: Vice President By: -----------------------
-----------------------
Date: ----------------------- Name: -----------------------
LESSOR'S NOTARY
---------------
STATE OF _____________)
)SS:
COUNTY OF ____________)
On _____________________ before me, ________________________________ a Notary
Public, ____________________________ personally appeared, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument, the person, or the entity upon behalf of which the person acted,
executed the instrument.
_________________________________________
Notary Public, _____________________________County,
My Commission expires: _____________________
LESSEE'S NOTARY
---------------
STATE OF TEXAS )
)SS:
COUNTY OF DALLAS )
On _____________________ before me, Xxxxx X. Xxxxxx/Xxxxx X. Xxxxx/Xxxxxxx
Xxxxxx, a Notary Public, Xxxxx Xxxxxxxx personally appeared, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument, the person, or the entity upon behalf of which the person acted,
executed the instrument.
_________________________________________
Notary Public in and for the State of Texas
My Commission expires: _____________________
