MASTER BUILD TO SUIT AND LEASE AGREEMENT
THIS MASTER BUILD TO SUIT AND LEASE AGREEMENT ("Master Lease" or
"Agreement") is made and entered into by and between TRITEL COMMUNICATIONS, INC.
("Tritel") and SPECTRASITE COMMUNICATIONS, INC. ("SpectraSite").
WHEREAS, Tritel has licenses to provide personal communications service
("PCS") in the states of Alabama, Florida, Mississippi, Tennessee, Kentucky and
any additional state or markets in which Tritel obtains a license to provide PCS
("Tritel Markets");
WHEREAS, Tritel requires that in certain instances towers and related
facilities be developed for the installation of antennas, equipment cabinets,
cabling and related equipment;
WHEREAS, Tritel also requires that parcels of real property together
with easements for ingress, egress and utilities to those properties be acquired
for the construction of the towers and related facilities;
WHEREAS, Tritel has previously engaged SpectraSite and other companies
to acquire parcels of real property to be leased or purchased by Tritel;
WHEREAS, Tritel desires to assign to SpectraSite certain of those
leases and for SpectraSite to construct facilities on the sites and/or to have
SpectraSite lease or purchase designated parcels of property to construct
structures for the operation of a wireless or telecommunications facility.
WHEREAS, Tritel desires to lease space on the facilities from
SpectraSite.
NOW THEREFORE, Tritel and SpectraSite do hereby agree as follows:
X. XXXXX OF RIGHTS; ASSIGNMENT AND
ASSUMPTION OF PRIME LEASES AND SUBLEASING
1.1 (a) GRANT. Tritel grants SpectraSite the nonexclusive right to
develop, construct and lease those sites in the Tritel Markets which involve the
construction of towers and related facilities ("Tower Sites") upon the terms and
conditions of this Master Lease. SpectraSite acknowledges and agrees that the
right to develop, construct and lease the Tower Sites is not an exclusive right
and that Tritel may grant similar rights to other parties; provided, however,
that Tritel agrees that it shall grant to SpectraSite the right to develop a
minimum number of Tower Sites for each Tritel Market (as defined below) if set
forth in a schedule to Attachment VII to this Agreement.
(b) APPLICATION.
(i) NOTICE. In the event that Tritel identifies a Tower Site
or search ring where it intends to place, develop and construct a tower, and
Tritel intends to grant to SpectraSite the right to develop, construct and lease
such Tower Site, Tritel shall give SpectraSite notice of the Tower Site, and
such Tower Site shall hereinafter be referred to as the Applicable Tower Site.
(A) Notice of Search Ring. In the event that Tritel has
issued a search ring for the Applicable Tower Site, but has not obtained a
lease, contract, option or other right to lease the property for
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the Applicable Tower Site, Tritel shall notify SpectraSite in writing of the
parameters of the search ring for the Applicable Tower Site (the "Search Ring
Notice").
(B) NOTICE OF LEASE. In the event that Tritel has
obtained an option, lease, contract or other right to lease the property for the
Applicable Tower Site, Tritel shall notify SpectraSite in writing of and deliver
to SpectraSite a complete copy of the lease, option, contract or other right to
lease the property for the Applicable Tower Site (the "Lease Notice").
(C) NOTICE OF BUILDING PERMIT. In the event that Tritel
has obtained a lease, contract, option or other right to lease property for an
Applicable Tower Site and is preparing to apply for a building permit for the
Applicable Tower Site, Tritel shall notify SpectraSite in writing on or before
ten (10) days prior to the date that Tritel intends to make application for a
building permit for Applicable Tower Site (the "Building Permit Notice") (the
Search Ring Notice, the Lease Notice and the Building Permit Notice shall be
collectively referred to as the "Notice of Applicable Tower Site").
(D) OBLIGATION TO GIVE NOTICE. Notwithstanding
paragraphs 1.2(b)(i)(A), (B) and (C), Tritel shall not be obligated to provide
Spectrasite the Notice of applicable Tower Site until ten (10) days prior to the
date that Tritel intends to make application for a building permit for the
applicable tower site, provided however, Tritel may elect to provide Spectrasite
Notice of the Applicable Tower Site pursuant to 1.1(b)(i)(A) or 1.1(b)(i)(B)
above.
(ii) ACCEPTANCE OR REJECTION OF APPLICABLE TOWER SITE.
SpectraSite shall have a period of twenty (20) days (the "Application Period")
from the date of the Notice of Applicable Tower Site to accept (in the event of
acceptance, the "Notice of Acceptance") or reject in writing any such Applicable
Tower Site because of any characteristics associated with the Applicable Tower
Site which would in the reasonable opinion of SpectraSite adversely impact the
development or ownership of the Applicable Tower Site. In the event that
SpectraSite does not accept or reject the Applicable Tower Site within such
twenty (20) day period, SpectraSite shall be deemed to have rejected such
Applicable Tower Site. In the event that SpectraSite rejects or does not accept
any Applicable Tower Site, SpectraSite shall have no right to require an
assignment of the Prime Lease (as hereinafter defined) or obligation to develop
the Applicable Tower Site and Tritel shall have no further obligation to
SpectraSite in regards to the Applicable Tower Site under the terms of this
Agreement.
(c) DUE DILIGENCE. During the (i) Application Period; and (ii) in
the event that SpectraSite provides Tritel with a Notice of Acceptance upon the
Applicable Tower Site, during the period between the Application Period and the
Commencement Date of the applicable SLA; and (iii) during the term of the
applicable SLA (hereinafter defined), provided that SpectraSite has assumed the
Prime Lease, if applicable, and entered into an SLA with Tritel: Tritel shall
make available to SpectraSite such information as SpectraSite may reasonably
require about the Applicable Tower Site which information shall include but
shall not be limited to (i) zoning permits and approvals, variances, building
permits and such other federal, state or local governmental approvals which have
been obtained or for which Tritel has made application; (ii) the construction,
engineering and architectural drawings and related site plan and surveys
pertaining to the construction of the Tower Facilities (hereinafter defined) on
the entire portion of the property where the Applicable Tower Site will be
located (the "Property" or the "Site"), which Property (or an interest therein)
has been leased, licensed or otherwise obtained by Tritel, or will be obtained
by SpectraSite, pursuant to a lease, option or other contract with the Owner
(the "Prime Lessor") of the Property; (iii) the geotechnical report for the
Property which has been commissioned by Tritel; (iv) 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
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which may have been produced regarding title to the Property and any and all
easements for access, ingress, egress or utilities easements obtained or
intended to be utilized for the Applicable Tower Site (the "Easements"); and (v)
the environmental assessments including phase I reports and any reports relating
to contemporaneous or subsequent intrusive testing, the " Federal Communication
Commission Checklist" performed pursuant to National Environmental Protection
Act requirements and any other information which may have been produced
regarding the environmental condition of the Property, the Easements or
neighboring real property. Tritel shall cooperate with SpectraSite in making
reasonable modifications to the foregoing information at the request of
SpectraSite. Upon execution of an SLA, Tritel shall assign and convey the
foregoing to SpectraSite without warranty or representation.
(d) FEDERAL AVIATION ADMINISTRATION APPROVAL. Tritel shall not
file with the Federal Aviation Administration ("FAA") any application,
responses, approvals and registration numbers submitted or received with respect
to any Applicable Tower Site without the prior approval of SpectraSite which
approval shall not be unreasonably withheld, delayed or conditioned by
SpectraSite.
(e) ASSIGNMENT AND ASSUMPTION OF PRIME LEASE, In the event that
SpectraSite accepts the Applicable Tower Site for development pursuant to
section 1. 1 of this Agreement, and Tritel has entered a Prime Lease with the
Prime Lessor, Tritel shall assign to SpectraSite and SpectraSite shall assume
and agree to be bound, by the "Prime Lease", together with the Easements to the
Property and the relationship of the parties with regard to the Applicable Tower
Site shall thereafter be governed by this Agreement. The form of the instrument
by which Tritel assigns the Prime Lease and any Easements to SpectraSite shall
be substantially the same form as that which is attached hereto as Attachment
"I" ("Assignment"). The Assignment shall be executed by Tritel and SpectraSite
in three (3) counterpart originals, and one original execution copy shall be
delivered to Tritel and two (2) original execution copies shall be delivered to
SpectraSite within five (5) days of the Notice of Acceptance. In addition
thereto, Spectrasite and Tritel shall execute a Memorandum of Assignment in
substantially the form of Attachment "II" to be recorded in the office of the
property records in the County where the Property is located. The Memorandum of
Assignment shall be executed and delivered to SpectraSite within five (5) days
of the Notice of Acceptance. SpectraSite shall record the Memorandum of
Assignment within ten (10) days of the Notice of Acceptance, and in any event
prior to the commencement of construction of the Tower Facilities as
commencement of construction is defined in any mechanics or materialman's lien
statute in the state where the Property is located. In addition thereto,
SpectraSite shall use its best efforts to obtain from the Prime Lessor, a
release of Tritel from all liabilities under the Prime Lease and shall endeavor
to include such release language in the Estoppel Certificate which is attached
hereto as Attachment "III". SpectraSite shall and hereby agrees to hold Tritel
harmless and indemnify Tritel from any and all claims, losses, obligations,
damages, costs or expenses ever suffered, threatened or incurred by Tritel which
claims, losses, obligations, damages, costs or expenses must be paid by Tritel
to a third party (including without limitation, any lawyers, experts, engineers
or similar professionals) or which Tritel may expend in defending itself against
any claim threatened or made by a third party which arise out of any act or
omission of SpectraSite under the Prime Lease, including without limitation, any
default under the Prime Lease.
(f) COMPLETION OF PRE-DEVELOPMENT WORK. In the event that
SpectraSite accepts the Applicable Tower Site prior to the time that a building
permit has been issued for the Applicable Tower Site, SpectraSite shall obtain
and be responsible and liable for the completion of all matters necessary to
complete the construction of the Tower Facilities upon the Applicable Tower
Site, including without limitation (i) obtaining zoning permits and approvals,
variances, building permits and such other federal, state or local governmental
approvals for the Applicable Tower Site; (ii) obtaining the construction,
engineering and architectural drawings and related site plan and surveys
pertaining to the construction of the Tower Facilities on
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the Property (iii) obtaining the geotechnical report for the Property; (iv)
obtaining 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; and (v) obtaining the environmental
assessments including phase I reports and any reports relating to
contemporaneous or subsequent intrusive testing, the "Federal Communication
Commission ("FCC") Checklist" performed pursuant to National Environmental
Protection Act requirements and any other information which may be necessary to
obtain permits and maintain licensing for the operation of a wireless
communications facility upon the Applicable Tower Site (collectively the
"Pre-Development Information"). SpectraSite shall make available to and deliver
to Tritel copies of all of the Pre-Development Information prior to the
execution of an SLA.
(g) ZONING AND GOVERNMENTAL APPROVALS. In the event that it is
necessary to obtain or file any application, motion or appeal for zoning or
governmental approvals, permits, or any other action necessary (the "Government
Application") to obtain any federal, state, municipal or local governmental
approval or permit (the "Government Approval") for the Applicable Tower Site and
SpectraSite has accepted the Applicable Tower Site prior to the issuance of such
Government Approvals, Tritel shall have the right to require SpectraSite to hire
or use any witnesses, attorneys, consultants, lobbyists, public relations
consultants, or parties which Tritel deems reasonably necessary to obtain the
Governmental Approval. Tritel shall pay the cost of such consultants in the
event the costs to obtain such Governmental Approval exceed $3,000.00 in the
aggregate, excluding any attorney fees which might be incurred upon an appeal of
an approval or denial of such Governmental Approval. Whenever reasonably
practicable, SpectraSite shall consult with Tritel prior to filing any
Government Applications and obtain Tritel's approval of such Government
Applications, which approval shall not be unreasonably conditioned, delayed or
withheld. SpectraSite shall provide Tritel with copies of all Governmental
Applications and other documents filed by SpectraSite in obtaining any
Governmental Approvals for each Site. In the event that Tritel desires to
terminate, dismiss, withdraw, or otherwise cease the Government Application,
Tritel shall have the right to do so and, if in the reasonable opinion of
SpectraSite and SpectraSite's Counsel (in writing) such Government Application
could have been approved, and SpectraSite does not construct or build a tower or
similar facility upon the Property, Tritel shall reimburse SpectraSite for all
fees and expenses incurred in connection with the Government Applications and
the reasonable Pre-Development Costs for the Site.
(h) SITE LEASE AGREEMENT. (i) Tritel and SpectraSite shall execute
two original execution copies of a Site Lease Agreement ("SLA") in substantially
the form of the SLA attached hereto as Attachment IV and deliver such SLA to the
other party within five (5) days of the Notice of Acceptance in the event that
an application for a building permit has been submitted for the Applicable Tower
Site and that all Pre-Development Information has been completed and delivered
to Tritel, SpectraSite shall execute and deliver a Memorandum of SLA in
substantially the form of the Memorandum of SLA attached hereto as Attachment V"
contemporaneously with the execution and delivery of the SLA
(ii) In the event that the Notice of Acceptance has been received
prior to the submission of an application for a building permit and the delivery
of all Pre-Development Information to Tritel, Tritel and SpectraSite shall
execute two original SLAs in substantially the form of the SLA attached hereto
as Attachment IV and deliver such SLA to the other party with five (5) days of
the delivery of notice to Tritel (the "Pre-Development Notice") that SpectraSite
has delivered to Tritel all of the Pre-Development Information for the
Applicable Tower Site
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(iii) Contemporaneously with the execution and delivery of the
SLA, Tritel shall execute and deliver a collocation application to SpectraSite
in substantially the form of the collocation application attached hereto as
Attachment "VI".
(iv) Tritel may refuse to execute and reject the SLA on any
Applicable Tower Site because of any deficiency in the Pre-Development
Information or any deficiencies which are disclosed in the Pre-Development
Information, which Tritel did not obtain or prepare, including without
limitation (A) exceptions to the title of the Property or the Easements, (B)
deficiencies in the Plans and Specifications (hereinafter defined) (C)
deficiencies in the geotechnical analysis or environmental assessments for the
Property or any deficiencies regarding the condition of the Property; or (D)
deficiencies in any requirements under the National Environmental Protection
Act; (E) any deficiency in the SLA; or (F) any deficiency in the Prime Lease or
the due authorization thereof. In the event that Tritel refuses to execute or
rejects the SLA, Tritel shall have no obligation to execute an SLA or obligation
to SpectraSite under this Master Lease in regards to the Applicable. Tower Site.
In the event that Tritel refuses to execute an SLA and SpectraSite does not
construct a tower upon the Applicable Tower Site, Tritel shall reimburse
SpectraSite one-half of the Pre-Development Costs (hereinafter defined), which
accrued or were incurred prior to SpectraSite's notice or knowledge of such
deficiency in the Pre-Development Information, but in any event no more than
$15,000.00 for the Pre-Development Costs for the Applicable Tower Site.
(v) Tritel shall be responsible for recording and bear the cost of
recording the Memorandum of SLA.
II. DESIGN AND CONSTRUCTION OF TOWER FACILITIES
2.1 COVENANT TO CONSTRUCT. Construction of the Tower Facilities
(hereinafter defined) shall be the responsibility and obligation of SpectraSite.
SpectraSite shall be responsible for the costs and construction of the tower,
foundations, and related facilities including concrete foundations, footings and
slabs and fencing to be located upon the Applicable Tower Site ("Tower
Facilities"). SpectraSite shall construct the Tower Facilities in accordance
with and substantial compliance with the Plans and Specifications (hereinafter
defined) and all rules, regulations, laws, and orders of any governing body,
local, state or federal. SpectraSite shall obtain all necessary permits and
approval of the Plans and Specifications from all applicable governmental
agencies.
2.2 APPROVAL OF PLANS AND SPECIFICATIONS. (a) In the event that Tritel
has obtained plans for the construction of ("Plans") and specifications for the
construction of (the "Specifications") the Tower Facilities, Tritel shall
deliver to SpectraSite the Plans and Specifications for the Tower Facilities
within five (5) days of the complete execution of the Assignment. In the event
that SpectraSite does not approve the Plans and Specifications or modifies the
Plans and Specifications, SpectraSite shall deliver detailed written objections
to the Plans and Specifications within five (5) days of the receipt of the Plans
and Specifications or SpectraSite shall prepare and deliver to Tritel approval
by Tritel three copies of any modifications to the Plans and Specifications. Any
modifications to the Plans and Specifications for each Tower Facility shall be
delivered to Tritel within ten (10) days of the delivery of the Plans and
Specifications to SpectraSite. If no objection or modified Plans and
Specifications are delivered to Tritel within the above-referenced time periods,
the Plans and Specifications shall be deemed approved. Within five (5) business
days after receipt of the modified Plans and Specifications, Tritel shall
approve such modified Plans and Specifications or deliver to SpectraSite
detailed written objections thereto. If Tritel fails to either affirmatively
approve or disapprove the modifications to the Plans and Specifications proposed
by SpectraSite within the five (5) day period, Tritel shall be deemed to have
effectively approved the Plans and Specifications.
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(b) In the event that Tritel has not obtained Plans and
Specifications for the Tower Facility, SpectraSite shall have Plans and
Specifications for the Tower Facility prepared, designed and delivered to Tritel
within fifteen (15) days of the execution of the Assignment, or in the event
there is no Assignment, within fifteen (15) days of the execution of the Prime
Lease with the Prime Lessor, for Tritel's approval, which approval shall not be
unreasonably withheld, delayed or conditioned. Within five (5) days of receipt
of the Plans and Specifications, Tritel shall approve the Plans and
Specifications or deliver to SpectraSite detailed objections thereto. If Tritel
does not affirmatively approve or disapprove the Plans and Specifications within
such five (5) day period, Tritel shall be deemed to have approved the Plans and
Specifications.
(c) Notwithstanding the foregoing, in the event that any federal,
state or local governmental body, requires SpectraSite or Tritel to modify the
Plans and Specifications to obtain a Governmental Approval, Tritel or
SpectraSite may modify the Plans and Specifications provided that the other
party approves such modification, such approval not to be unreasonably withheld,
delayed or conditioned.
2.3 PRE-DEVELOPMENT COSTS. As used herein, "Pre-Development Costs"
shall include the cost of the site acquisition services, phase I environmental
assessments, geotechnical analyses, designs, Plans and Specifications, including
without limitation, construction plans, the cost incurred in obtaining any
grants of easements for ingress, egress or utilities over real property owned by
persons or entities other than the Prime Lessor under the Prime Lease ,
supplies, relevant travel expenses, fees or assessments imposed by local, state
or federal governmental entities, recording fees and filing fees, fees of
engineers, surveyors, architects, attorneys, brokerage commissions and others
providing professional services ("Pre-Development Costs) SpectraSite shall
reimburse Tritel for portions of these costs as specified in Attachment VII. A
separate Schedule for Attachment VII shall be executed for each Tritel Market
(as hereinafter defined) to define and set the rates, terms, rights, covenants
and conditions and obligations regarding the Pre-Development Costs for each
Market. Each Schedule (the "Schedule" or "Schedules") shall be signed and
executed by Tritel and SpectraSite, and upon due execution and due authorization
by each party, shall modify and amend the terms and conditions of this Master
Lease and shall be incorporated into this Master Lease and shall be governed by
the terms, covenants and conditions of this Master Lease as though set forth
herein word for word. In the event that no Schedule is negotiated for a specific
Market and SpectraSite commences construction of a Tower Facility in such
Market, Tritel and SpectraSite shall divide the Pre-Development Costs equally.
2.4 COMMENCEMENT OF CONSTRUCTION. SpectraSite shall commence
construction of the Tower Facility within twenty (20) days of the delivery of an
SLA executed by Tritel to SpectraSite. SpectraSite shall make reasonable and
diligent efforts to complete the construction of each individual Tower Facility
within thirty-five (35) days after Tritel executes an SLA for the Site upon
which the Tower Facility is to be constructed. SpectraSite shall have no
obligation to commence construction of the Tower Facilities unless and until a
SLA has been executed by Tritel for that Tower Site. The commencement of
construction and the completion of construction of each Tower Facility shall be
subject to delays from substantial labor disputes, fire, unusual delay in
deliveries not caused by or contributed to by SpectraSite or its contractors,
abnormal adverse weather conditions not reasonably anticipated, governmental
actions or inactions, not caused or contributed to by SpectraSite or other
unavoidable casualties or similar causes beyond reasonable control of
SpectraSite or SpectraSite's contractor or for time needed to perform additional
construction covered by any change order requested by Tritel. Notwithstanding
the foregoing, Tritel and SpectraSite may negotiate and agree upon a different
schedule for the completion of the Tower Facilities in each Tritel Market
pursuant to and part of a Schedule attached hereto as a Schedule attached to
Attachment VII.
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2.5 SELECTION OF CONTRACTOR. Prior to the commencement of construction
of a Tower Facility under this Agreement, SpectraSite shall provide Tritel with
the names of the contractors it proposes to use for the construction of the
Tower Facility. Tritel may, in its reasonable discretion and within five (5)
business days of receipt of this information, object to the use of a specific
contractor on a Tower Facility. Tritel may identify and choose any contractors
or subcontractors for construction of any specific Tower Facility so long as
Tritel submits the name of such contractor to SpectraSite on or before the date
that Tritel executes the Assignment and the SLA for the applicable Tower
Facility, and further provided that such contractor meets the financial, quality
and delivery requirements and standards similar to or better than contractors
which SpectraSite retains for the construction of other towers and sites.
2.6 MANNER OF CONSTRUCTION. (a) SpectraSite represents, warrants and
agrees that the Tower Facilities shall be constructed in a good and workmanlike
manner and in accordance with the Plans and Specifications and all applicable
federal, state and local laws, ordinances, rules and regulations. SpectraSite
warrants to Tritel that all materials furnished in connection with the
construction of the Tower Facilities will be new unless otherwise specified, and
of good quality, and that such construction will be of good quality in
accordance with industry standards, free from faults and patent defects.
(b) SpectraSite shall supervise and direct the work on the Tower
Facilities (the "Work"), using SpectraSite's best skill and attention.
SpectraSite shall be solely responsible for and have control over construction
means, methods, techniques, sequences and procedures and for coordinating all
portions of the Work on the Tower Facilities under this Agreement.
(c) Unless otherwise provided in this Agreement, SpectraSite shall
provide and pay for labor, materials, equipment, tools, construction equipment
and machinery, water, heat, utilities, transportation, and other facilities and
services necessary for the proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in
the Work.
(d) SpectraSite shall pay sales, consumer, use, and other similar
taxes regarding the Tower Facilities, the construction and leasing thereof, and
shall secure and pay for any permits and governmental fees, licenses and
inspections necessary for proper execution and completion of the Work.
(e) SpectraSite shall keep the Tower Facilities and surrounding
area free from accumulation of waste materials or rubbish caused by operations
under this Agreement. At completion of the work SpectraSite shall remove from
and about the Tower Facilities waste materials, rubbish, tools, construction
equipment, machinery and surplus materials.
(f) SpectraSite shall provide Tritel (and its employees, agents
and contractors) access to the Work in preparation and progress wherever
located, provided that such access shall not interfere with the Work.
(g) SpectraSite shall pay all royalties and license fees; shall
defend suits or claims for infringement of patent rights and shall hold Tritel
harmless from loss on account thereof, but shall not be responsible for such
defense or loss when a particular design, process or product of a particular
manufacturer or manufacturers is required by Tritel unless SpectraSite has
reason to believe that there is an infringement of patent.
(h) SpectraSite shall be responsible for initiating, maintaining
and supervising all safety precautions and programs in connection with the
performance of the Agreement. SpectraSite shall take
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reasonable precautions for safety of, and shall provide reasonable protection to
prevent damage, injury or loss to:
(1) employees on the Work, the Tower Facilities or the Property
and other persons who may be affected thereby;
(2) the Work, the Tower Facilities, the Property and materials and
equipment to be incorporated therein; and
(3) other property at the Property or adjacent thereto.
2.7 NO LIENS. SpectraSite shall keep the Tower Facilities free of all
involuntary liens and claims, including without limitation, liens and claims (a)
arising out of or related to the performance of the construction, all liens and
claims of any contractor, subcontractor, laborer, mechanic or materialman for
labor performed or material furnished in connection with the performance of the
construction; (b) liens or claims arising from taxes or assessments, except for
liens for taxes or assessments which are not yet due and payable; or (c) liens
or claims which may impair Tritel's interest. Notwithstanding the foregoing,
SpectraSite may encumber the Tower Facilities with a lien or mortgage as surety
for construction or permanent financing.
2.8 NOTIFICATION OF COMPLETION. SpectraSite shall notify Tritel of the
date when the Tower Facilities have been substantially completed by delivery of
a notice in substantially the same form attached hereto as Attachment "VIII"
("Notice of Completion"). Within fifteen (15) business days after the Notice of
Completion, Tritel shall deliver to SpectraSite a list of items ("Punch List")
that Tritel deems necessary that SpectraSite complete or correct in order for
the Tower Facilities to be completed in accordance with the Plans and
Specifications. The Tower Facilities shall be deemed accepted by Tritel if a
Punch List is not received by SpectraSite within fifteen (15) days of the date
of Notice of Completion. SpectraSite shall complete, repair, construct or modify
all the items on the Punch List within ten (10) days of receipt of the Punch
List. The Site shall not be deemed accepted until all items on the Punch List
have been completed to Tritel's reasonable satisfaction.
2.9 IMPROVEMENTS BY TRITEL. Tritel shall be responsible for procuring
any and all permits and approvals from any and all federal, state or local
governmental agencies which may be required for the installation or operation of
Tritel's Equipment (hereinafter defined) on the Tower Facilities for each Site.
Subject to the provisions of Section 3.11, Tritel shall submit plans and
specifications for the proposed installation of Tritel's Equipment to
SpectraSite for SpectraSite's approval or for each Tower Facility which depicts
the location and manner of attachment of Tritel's Equipment to the Premises.
Subject to the provisions of Section 3.11, Tritel shall be responsible for the
delivery of Tritel's Equipment to, and installation of Tritel's Equipment upon
the Premises. Subject to the provisions of Section 3.11, Tritel shall be
responsible for the installation of Tritel's Equipment on the Premises and for
connecting Tritel's Equipment to utilities which have been extended to the
Premises by SpectraSite. Subject to the provisions of Section 3.11, Tritel shall
provide at Tritel's sole cost and expense, Tritel's Equipment and all materials
and equipment for the construction, installation, operation, maintenance and
repair of Tritel's Equipment. Tritel shall not construct or install any
equipment or improvements onto the Premises other than those which are described
in the SLA or alter the radio frequency of operation of the Tritel's Equipment
without first obtaining the prior consent of SpectraSite which consent shall not
be unreasonably withheld, delayed or conditioned. In the event that the changes
to the Tritel Equipment which Tritel desires to make would increase the wind
loading or structural load on the Tower Facilities or increase the space
occupied by Tritel's Equipment on the Premises, SpectraSite may condition such
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consent upon an increase in the amount of Rent payable for that Site in
accordance with industry standards. Notwithstanding the foregoing, so long as
Tritel obtains SpectraSite's prior written approval, which approval shall not be
unreasonably withheld, delayed, or conditioned, Tritel shall have the right to
make alterations to the Premises and the Tritel Equipment (hereinafter defined)
so long as Tritel does not increase the area of space upon the Tower Facilities
or the ground space upon the Site, increase the wind or structural load upon the
Tower Facility or create material radio frequency interference with the
equipment of other users then located upon the Tower Facility
2.10 COMPLIANCE WITH GOVERNMENTAL RULES. All work required to be
performed by Tritel or Tritel's employees, contractors or agents shall be made
in a good and workmanlike manner. SpectraSite shall be entitled to require
substantial compliance with the plans and specifications approved by SpectraSite
pursuant to paragraph 2.10 including specifications for the grounding of
Tritel's equipment and antennas. All construction, installations and operations
in connection with this Master Lease by Tritel shall meet with all applicable
rules and regulations by any federal governmental authority including the FCC,
and all applicable codes and regulations of the city, county, and state
concerned.
2.11 REMEDIES FOR BREACH OF SECTION II. In the event SpectraSite fails
to perform any obligation to commence and complete construction pursuant to
Section 2.5 of this Agreement and any schedule, attachment or agreement related
thereto, provided that such delay in commencement and completion of construction
is not contributed to or caused by Tritel, which failure is not corrected or
cured by SpectraSite within five (5) days of receipt by SpectraSite of written
notice (which may be telecopy notice) from Tritel of the existence of such a
breach, Tritel shall have the right, as its sole and exclusive remedy for such
breach, to complete construction of or cause the completion of the construction
of the Tower Facilities upon notice to SpectraSite. Tritel shall have the right
to hire or retain any contractor it shall so choose to complete the construction
of the Tower Facilities in such event. SpectraSite and its employees,
contractors, subcontractors, agents and representatives shall provide Tritel and
its employees, agents, representatives, contractors and subcontractors free,
unobstructed, complete and open access to the Property and the Easements to
complete construction of the Tower Facilities, Carrier's Equipment and anything
related thereto. SpectraSite shall reimburse Tritel for the reasonable cost
actually incurred for the construction or completion of construction of the
Tower Facility any items related thereto. In the event SpectraSite fails to
reimburse Tritel for such costs within thirty (30) days following receipt of
documentation from Tritel detailing such costs, such failure shall create a
default under the applicable SLA.
III. LEASE OF THE PREMISES
3.1 PREMISES. Tritel may install, maintain, operate and remove certain
equipment on the Tower Facilities, at the heights and in those locations
designated in an SLA upon the Property. The terms and conditions of this Master
Lease shall be incorporated into each SLA and the terms and conditions of each
SLA shall be governed by the terms, covenants and conditions of this Master
Lease as though set forth in the SLA word for word. The SLA for each Site shall
be in substantially the same form as that attached hereto as Attachment "IV".
The SLA shall be executed by Tritel and SpectraSite and shall incorporate by
reference information about the Site including but not limited to the legal
description of the real property which is the subject of the Prime Lease, the
legal description of any easements for ingress, egress or utilities serving the
Premises, a description of the equipment to be located at the Site by Tritel
("Tritel's Equipment" or the "Tritel Equipment") and a mounting height of the
antennas in the instance of a Tower Facility or other structure. In no event
shall Tritel's Equipment exceed or deviate from that described in Exhibit "D" to
the SLA without the prior written consent of SpectraSite which consent shall not
be unreasonably withheld, delayed or conditioned. In the event that the
deviation from the SLA increases the wind load or structural load on the Tower
Facility or
9
causes Tritel to occupy additional space on the Tower Facility or the ground
space leased in connection with the Tower Facility, SpectraSite may condition
such approval upon a reasonable increase in Rent in accordance with industry
standards. The space occupied by Tritel's Equipment on each Tower Facility, the
location of Tritel's Equipment upon the ground space adjacent to the Tower
Facility, the Easements and all cables, wiring, conduits, etc. to and from the
Tower Facilities and to and from the Tritel Equipment shall be collectively
referred to as the "Premises".
3.2 USE. (a) Subject to the provisions of Section 2.9, Tritel may use
the Premises for (i) the transmission and reception of wireless communications
signals, (ii) the construction, alteration, maintenance, replacement, repair,
and upgrade of related antennas, communications and other equipment, microwaves,
equipment, transmitters, receivers, cables, wiring, transmission lines, mounting
and grounding hardware switches, batteries, base stations, generators, back-up
power sources, cabinets, shelters and accessories and improvements related
thereto at Tritel's sole cost and expense subject to the covenants prohibiting
interference found in paragraph 3.12 of this Master Lease and provided that such
replacements and upgrades do not increase the structural or wind loading upon
any Tower or increase the space occupied by Tritel's Equipment on the Premises,
and (iii) activities related to any of the foregoing.
(b) The use of any Tower Facility granted Tritel by this Master
Lease shall be non-exclusive and limited in strict accordance with the terms of
this Master Lease. SpectraSite shall have the right to enter into lease and
license agreements with others relating to the Tower Facility and the Tower
Facility in the reasonable discretion of SpectraSite subject to the covenants,
terms and conditions of this Master Lease including, without limitation,
covenants prohibiting interference with Tritel's Equipment found in paragraph
3.13 of this Master Lease.
(c) SpectraSite and Tritel acknowledge and agree that so long as:
(1) SpectraSite approves any substituted, additional or altered
equipment, which approval shall not be unreasonably withheld,
delayed or conditioned; and
(2) Any additional or substituted equipment
(A) does not increase the wind load or structural burden upon the
Tower Facilities, and
(B) does not increase the space upon the Tower Facilities or the
ground space upon the Site, and
(C) does not create any material technical or radio frequency
interference with:
(I) any existing equipment located upon the Tower Facilities
at the time of the request for such modification or
substitution; or
(II) any equipment which SpectraSite is contractually
obligated to allow to be installed upon the Tower and such
equipment is specifically identified and scheduled to be
placed upon the Tower within forty-five (45) days of Tritel's
request for a modification or substitution,
10
(III) Tritel may substitute, add, alter, modify and replace Tritel's Equipment
described in the SLA upon the Tower Facilities.
3.3 INITIAL TERM OF MASTER LEASE. The Term of this Master Lease shall
be for a period of five (5) years from the date of this Master Lease. The Master
Lease shall automatically renew for four (4) additional terms of five (5) years
each unless SpectraSite or Tritel notifies the other party of its intention not
to renew this Master Lease at least six (6) months prior to the end of the then
existing term or Renewal Term of this Master Lease. The terms and conditions of
the Master Lease which are applicable to each SLA shall survive the termination
of this Master Lease and shall remain in force and continue to apply even if the
Master Lease is terminated.
3.4 INITIAL TERM OF SLAS. The Initial Term of the SLA for each Tower
Facility shall be for a period of five (5) years commencing on the Commencement
Date as defined in Attachment VII ("Commencement Date") in the Market in which
the Premises is located, and expiring on the fifth (5th) anniversary of the
Commencement Date ("Initial Term"). Tritel and SpectraSite shall execute a
letter agreement in substantially the form of Attachment VIII, which shall be
attached to each SLA confirming the calendar date which the parties acknowledge
and agree is the Commencement Date for each SLA. Rent shall not cease during the
Initial Term except in the event that Spectrasite defaults under any SLA as
defined in this Agreement and such default is not cured within any period
provided for cure and such default gives rise to damages or any other remedy at
law or equity.
3.5 RENEWAL TERMS FOR SLA. Tritel shall have the right to extend each
SLA for four (4) additional period(s) of five (5) years each ("Renewal Terms").
Tritel shall provide SpectraSite written notice of Tritel's intent to renew any
SLA not less than one hundred twenty (120) days prior to the end of the then
existing term. Each Renewal Term shall be on the same terms and conditions as
set forth in this Master Lease except that Rent shall accrue in the manner
described on Attachment VII and the Schedules attached thereto.
3.6 QUIET ENJOYMENT. SpectraSite represents and warrants that Tritel
shall have the quiet enjoyment of the Premises throughout the term of the SLA,
without threat of hindrance, ejection or molestation.
3.7 PRIME LEASE.
(a) SpectraSite covenants that it shall not commit any act which
would result in a default or nonconformance of the Prime Lease. The SLA shall be
subject to the continued existence and enforceability of the Prime Lease,
provided, however, any termination or expiration of the Prime Lease which occurs
as a result of any default or non-conformance by SpectraSite under the terms of
the Prime Lease, without the prior written consent of Tritel, shall be construed
as an event of default under the terms of the applicable SLA. SpectraSite shall
not elect not to renew any Prime Lease and the failure to renew any Prime Lease
shall be construed as an event of default under the terms of the applicable SLA
unless SpectraSite either: (1) provides to Tritel an attornment and
non-disturbance agreement in a form reasonably acceptable to Tritel and
SpectraSite, and provides to Tritel written notice of its decision not to renew
the Prime Lease at lease sixty (60) days prior to the date that SpectraSite must
provide the Prime Lessor notice of its intent not to renew the Prime Lease; or
(2) provides Tritel with the option, which may be exercised in Tritel's sole
discretion to receive an assignment of the Prime Lease and further provided that
SpectraSite provides sufficient evidence to Tritel that the assignment of the
Prime Lease to Tritel is permitted; provided, however, that in the event that
Tritel elects not to receive such an assignment pursuant to Section 3.7(a)(2)
because there is a material defect in such Site which Tritel believes in its
reasonable opinion would impose a liability on Tritel other than those
obligations for payment of
11
rent, insurance and taxes imposed by the Prime Lease and such liability would,
in the reasonable opinion of Tritel exceed the amount of Twenty Thousand and
No/100 Dollars ($20,000.00), then SpectraSite's failure to renew the Prime Lease
shall constitute a default under the applicable SLA. In either event any such
non-renewal of the Prime Lease shall not constitute an Event of Default under
the term of the Applicable SLA, provided however, that Tritel's election not to
receive an assignment of the Prime Lease shall not waive any default created by
SpectraSite's failure to renew the Prime Lease.
(b) In the event that the Prime Lease requires the Prime Lessor to
consent to the making of the applicable SLA, it shall be a condition precedent
to the effectiveness of the SLA that SpectraSite obtains such consent. The form
and content of such consent shall be subject to Tritel's approval, not to be
unreasonably withheld, delayed or conditioned.
(c) In the event that SpectraSite loses its possessory right to a
Site because of a termination or expiration of a Prime Lease, SpectraSite hereby
grants to Tritel the option to purchase the Tower Facilities on the applicable
Site (and any accessories, accessions, attachments, fixtures or other equipment
in connection therewith, etc., including without limitation storage buildings
and fences) for the fair market value of the Tower Facilities (and such
accessories, accessions, attachments, fixtures, equipment, etc.).
(d) SpectraSite agrees to exercise its best efforts to deliver a
non-disturbance and attornment agreement with the landlord under the Prime Lease
for Tritel's continued possession of the Premises under the applicable SLA
and/or the assumption of the Prime Lease by Tritel and/or assignment of the
Prime Lease to Tritel in the event that SpectraSite elects to terminate the
Prime Lease. Tritel acknowledges and agrees that the language provided in
paragraph 5 of the Estoppel Certificate attached hereto as Attachment "III" will
be sufficient to comply with the requirements of this provision. This provision
shall not imply that Tritel consents to the expiration or termination of the
Prime Lease by SpectraSite.
(e) RIGHT OF FIRST REFUSAL. (i) In the event that SpectraSite
receives a bona fide arms length offer pursuant to which an independent
non-affiliated third party (the "Third Party") would enter into a sublease,
license or other occupancy agreement with respect to a portion of the Tower
Facilities below the height specified by Tritel at the time Tritel and
SpectraSite executed an SLA, SpectraSite shall send written notice (the "Right
of First Refusal Notice") to Tritel offering to sublease the Right of First
Refusal Space to Tritel for the same rent and under the same terms and
conditions as the aforementioned bona fide offer (the "Right of First Refusal").
The Right of First Refusal Notice shall specify the height at which the offeree
intends to install its equipment and the rent that it shall pay. Tritel shall
have five (5) business days after its Receipt of the Right of First Refusal
Notice to give SpectraSite written notice of its intent to exercise the Right of
First Refusal. If Tritel does not give SpectraSite written notice of its intent
to exercise the Right of First Refusal within five (5) days, Tritel's right to
exercise the Right of First Refusal terminates as to that specific tenant and
offer. SpectraSite may then sublease or license such space to the Third Party.
(ii) In the event SpectraSite constructs a Tower Facility higher
than the height specified by Tritel at the time when Tritel and SpectraSite
execute an SLA, SpectraSite shall send Tritel a written notice specifying the
height of the Tower Facilities and offering Tritel the right to locate the
Tritel Equipment at a different height upon the Tower Facilities and Tritel
shall have the right to locate the Tritel Equipment at any level upon the Tower
Facilities upon the same terms and conditions of the original SLA (the
"Additional Height Right of First Refusal"). Tritel shall have five (5) days
after its receipt of the notice, to notify SpectraSite of its desire to locate
its equipment at a height different from which it originally specified and that
it shall exercise the Additional Height Right of First Refusal.
12
(iii) SpectraSite and Tritel shall enter into and execute a
modification of the original SLA and memorandum of SLA to evidence the
modification of the height of the Tritel Equipment upon the Tower Facilities
within thirty (30) days of the date that Tritel gives SpectraSite notice that it
exercised the Right of First Refusal or the Additional Height Right of First
Refusal.
3.8 BASE RENT.
(a) RENT. As consideration for the use and occupancy of the
Premises under any SLA, Tritel shall pay SpectraSite as shown on the Schedules
on Attachment VII. Tritel and SpectraSite acknowledge and agree that the Rent
for each SLA for each of the Tritel Markets may differ and shall be negotiated
separately by each market. The Tritel Markets shall be divided into the
following markets:
o The Knoxville Market
o The Chattanooga Market
o The Nashville Market
o The Birmingham Market
o The Huntsville Market
o The Mississippi Market
o The Kentucky Market
o The Xxxxxxxxxx Market
o Any additional markets not specifically listed above
(each a "Market"). The rent and compensation for each Market shall be negotiated
between Tritel and SpectraSite and the separate Schedule shall be added to the
Master Lease to Attachment VII to define and set the rent and compensation for
each Market.
(b) LATE PENALTIES. Tritel hereby acknowledges that late payment
by Tritel to SpectraSite of Rent and other sums due hereunder shall cause
SpectraSite to incur costs not contemplated by this Master Lease, the exact
amount of which shall be extremely difficult to ascertain. Such costs include,
without limitation, processing and accounting charges and late charges which may
be imposed on SpectraSite by the terms of any security agreement, mortgage or
trust deed covering all or a portion of the Tower Facilities. Accordingly, if
any payment of rent or any other sum due from Tritel shall not be received by
SpectraSite or SpectraSite's designee within fifteen (15) days after written
notice that such payment has not been paid, then Tritel shall then immediately
pay to SpectraSite a late charge equal to [CONFIDENTIAL TREATMENT REQUESTED] of
such overdue amount. The parties hereto hereby agree that such late charge
represents a fair and reasonable estimate, based on the circumstances existing
as of the date hereof, of the costs SpectraSite shall incur by reason of late
payment by Tritel. Acceptance of such late charge by SpectraSite shall in no
event constitute a waiver of Tritel's default with respect to such overdue
amount or prevent SpectraSite from exercising any other right or remedy.
3.9 TRITEL'S EQUIPMENT. Tritel's Equipment shall remain Tritel's
exclusive personal property throughout the term and upon termination of the SLA.
Tritel shall have the right to remove all the Tritel's Equipment at Tritel's
sole cost and expense on or before the expiration or earlier termination of the
SLA, provided that Tritel repairs any damage to the Premises, the Property or
the Tower Facilities caused by such removal, provided that Tritel shall not be
obligated to remove any pads, utilities or similar permanent fixtures.
SpectraSite and SpectraSite's agents shall have the right to enter the Property
and the tower located upon the Property at reasonable times for the purpose of
inspecting the same.
13
3.10 MECHANICS' LIENS. Tritel shall not permit any mechanics',
materialmen's, contractors' or subcontractors' liens arising from any
construction work, repair, restoration or removal or any other claims or demands
to be enforced against the Tower Facilities or the Property or any part thereof.
SpectraSite shall have the right at any time to post and maintain upon the
Property such notices as may be necessary to protect SpectraSite against
liability for all such liens and encumbrances. SpectraSite shall assume no
liability for the payment of materials or labor which arise from the
installation of Tritel's improvements upon the Premises and no mechanics' or
materialmen's liens for Tritel's improvements shall attach to the interest of
SpectraSite in the Tower Facilities.
3.11 MAINTENANCE AND REPAIRS
(a) Tritel shall perform all repairs necessary or appropriate to
Tritel's Equipment to maintain Tritel's Equipment in a good and tenantable
condition, reasonable wear and tear, damage by fire, the elements or other
casualty excepted damage to Tritel's Equipment resulting from the acts or
omissions of SpectraSite shall be repaired by Tritel at SpectraSite's cost and
expense; SpectraSite shall reimburse Tritel for the actual reasonable costs
incurred as evidenced by adequate documentation by Tritel in repairing such
damage or replacing Tritel's Equipment.
(b) SpectraSite shall maintain the Tower Facilities, the Site, the
Easements, and portions of the Property other than Tritel's Equipment (i) in
good order and repair, wear and tear, damage by fire, the elements or other
casualty excepted; (ii) in such condition that the Tower Facilities an d the
Property are required to be maintained by SpectraSite pursuant to the Prime
Lease; and (iii) in compliance with all rules, laws, codes, or regulations of
any governmental entity. Damage to the Tower Facilities or the equipment or
improvements of SpectraSite or others located on the Property or the Tower
Facilities, which results from the acts or omissions of Tritel shall be repaired
by Tritel at Tritel's cost and expense, or at the option of SpectraSite, Tritel
shall reimburse SpectraSite for the actual reasonable costs incurred by
SpectraSite in repairing such damage or replacing such equipment or improvements
as evidenced by adequate documentation. Notwithstanding the foregoing or other
provisions in this Master Lease to the contrary, SpectraSite may delegate its
obligations to maintain or repair the Tower Facilities to another company
provided that such delegation does not increase the costs of said services over
and above that which would have been charged by SpectraSite and provided that
such delegation does not in effect, delegate all or a substantial portion of
SpectraSite's obligations under this Agreement.
(c) SpectraSite assumes no responsibility for the licensing,
operation and maintenance of the Tritel's Equipment.
3.12 UTILITIES. Tritel shall be solely responsible for the payment of
utility charges including connection charges and security deposits incurred in
association with the Tritel's Equipment. Tritel will be responsible for setting
up their account for ongoing power usage. SpectraSite will be responsible for
bringing in power to the Tower Site in terms of the meter, base, conduits and
the primary power run from the nearest utility pole. Tritel will coordinate with
the utility companies for the meter for the Tritel Equipment. SpectraSite shall
provide and install telephone conduits inside the compound of the Tower
Facility. Tritel will order T-1 circuits for the Tower Site. SpectraSite will
coordinate the telephone copper punch block, i.e. the telephone pedestal. Any
fiber facilities will be the responsibility of Tritel. Tritel may install or
improve existing utilities servicing the Tower Facility and may install an
electrical grounding system or improve or connect to any existing electrical
grounding system to provide the greatest possible protection from lightning
damage to the Tower Facility. In addition thereto, Tritel may connect its
utilities to any emergency generator or similar emergency
14
power source which SpectraSite may have at the Tower Site or the Property.
SpectraSite shall assist Tritel in obtaining any utility services necessary to
service the Tritel Equipment including, without limitation, any meters,
telephone lines or services to the Premises.
3.13 INTERFERENCE AND MAXIMUM PERMISSIBLE EXPOSURE.
(a) BY OTHER OCCUPANTS. SpectraSite may enter into sublease or
license agreements with other companies for the Tower Facilities which are the
subject of this Master Lease, provided that SpectraSite shall require such
Sublessee or licensee to install equipment of types and frequencies that will
not cause interference to Tritel's communications operations then being
conducted from the Premises and subject to the provisions of this Master Lease.
SpectraSite agrees that in the event such Sublessee or licensee causes
interference with Tritel's Equipment, SpectraSite will require such Sublessee or
licensee to take all steps necessary to correct and eliminate the interference.
If such interference cannot be eliminated within forty-eight (48) hours after
receipt by SpectraSite of notice from Tritel of the existence of interference,
SpectraSite shall take such actions as are permitted by law and can be conducted
without breach of the peace such as causing such Sublessee or licensee to
disconnect the electric power and shut down such sublease's or licensee's
equipment (except for intermittent operation for the purpose of testing, after
performing maintenance, repair, modification, replacement, or other action taken
for the purpose of correcting such interference) until such interference is
corrected. If such interference is not rectified to the reasonable satisfaction
of Tritel within thirty (30) days after receipt by SpectraSite of such prior
notice from Tritel of the existence of interference, SpectraSite shall cause
such Sublessee or licensee to remove such sublease's or licensee's antennas and
equipment from the Tower Facilities.
(b) BY TRITEL. In no event shall Tritel alter the operations of
Tritel's Equipment or replace, upgrade or otherwise modify the operations of
Tritel's Equipment in a manner which will cause interference with the operations
of any other equipment which is then in existence on the Tower and for which
SpectraSite has a written contractual agreement. Tritel agrees that in the event
Tritel's Equipment causes interference with any existing equipment upon the
Tower Facilities which was placed upon the Tower Facilities prior to the
installation of any modifications to the Tritel Equipment upon the Tower
Facilities, Tritel will take all steps necessary to correct and eliminate the
interference. If such interference cannot be eliminated within forty-eight (48)
hours after receipt by Tritel from SpectraSite of notice of the existence of
interference, Tritel shall cease operation of Tritel's Equipment (except for
intermittent operation for the purpose of testing, after performing maintenance,
repair, modification, replacement, or other action taken for the purpose of
correcting such interference) until such interference is corrected. Tritel
covenants that Tritel's Equipment shall be operated in compliance with all
applicable federal state and local laws, ordinances and regulations. Tritel
agrees to exercise its best efforts to reasonably cooperate with SpectraSite and
any future occupants of the Tower Facilities with contractual agreements with
SpectraSite to try to resolve any interference issues or problems which may
arise regarding interference by the Tritel Equipment with such other occupants
radio frequency emissions from the Tower Facilities (at the expense of such
occupants or SpectraSite).
(c) MAXIMUM PERMISSIBLE EMISSIONS, COOPERATIVE EFFORTS. If antenna
power output ("FR Emissions") becomes subject to any restrictions imposed by the
FCC or any other government agency for FR Emissions standards on Maximum
Permissible Exposure ("ME") limits, or if the Tower Facilities otherwise become
subject to federal, state or local rules, regulations, restrictions or
ordinances, Tritel shall comply with SpectraSite's reasonable requests for
modifications to Tritel's Equipment which are reasonably necessary for
SpectraSite to comply with such limits, rules, regulations, restrictions or
ordinances. The FR Emissions requirements of Tritel shall be subordinate to any
prior users of the Tower Facilities. Similarly, the FR
15
Emissions of users subsequent to Tritel shall become subordinate to any
requirements of Tritel. If SpectraSite or Tritel require an engineering
evaluation or other power density study be performed to evaluate FR Emissions
compliance with ME limits, then all reasonable costs of such an evaluation or
study shall be shared equally between SpectraSite, Tritel, and any other users
of the Tower Facilities. If said study indicates that FR Emissions at the Tower
Facility do not comply with ME limits, then SpectraSite, Tritel, and subsequent
tenants shall immediately take any steps necessary to ensure that they are
individually in compliance with such limits or shall at the demand of
SpectraSite cease operations until a maintenance program or other mitigating
measures can be implemented to comply with ME. Tritel shall have the right,
without waiving any other rights or remedies, to terminate the SLA applicable to
any such site in the event that such mitigation measures cannot be implemented
without materially adversely affecting the operation of the Equipment.
(d) SIGNAGE REGARDING ME. Tritel acknowledges and understands that
SpectraSite may install certain signage and/or physical barriers pertaining to
radio frequency exposure from transmitters and other equipment located upon the
Tower Facilities. SpectraSite and Tritel shall instruct all of their personnel
and their contractors performing work at the Tower Facilities, the Property or
the Premises, to read carefully all such signage, to follow the instructions
provided in such signage, and to honor all physical barriers. Tritel shall be
responsible for placement of signage or physical barriers at or near the Tritel
Equipment and/or its cabinet or building at the Premises in order to comply with
applicable FCC radio frequency exposure guidelines. SpectraSite agrees that it
shall cooperate with Tritel in these efforts and that SpectraSite shall instruct
its personnel and contractors performing work at the Property, the Tower
Facilities and the Premises to read carefully all such signage, to follow the
instructions provided in such signage, and to honor all physical barriers. In no
event shall SpectraSite's personnel or contractors tamper with any such signage
or barriers. SpectraSite and Tritel shall cooperate in good faith to minimize
any confusion or unnecessary duplication that could result from similar signage
being posted respecting other carriers' transmission equipment (if any) at or
near the Premises, the Tower Facilities and the Property.
3.14 TOWER MARKING AND LIGHTING REQUIREMENTS. SpectraSite shall be
responsible for designing and maintaining the Tower Facilities to comply with
any applicable marking and lighting requirements imposed by the FAA and the FCC.
SpectraSite shall be responsible for the replacement of bulbs and for the repair
of the tower lighting system within a reasonable time after receipt of notice
from Tritel of the need for the replacement of bulbs or the repair of the tower
lighting systems.
3.15 INDEMNIFICATION AND RISK OF LOSS.
(a) Tritel shall exonerate, hold harmless, indemnify, and defend
SpectraSite from any and all claims, obligations, liabilities, costs, demands,
damages, expenses, suits or causes of action, including costs and reasonable
attorneys' fees, which may arise out of (i) any injury to or the death of any
person; or (ii) any damage to property, if such injury, death or damage arises
out of or is attributable to or results from Tritel's use and occupancy of the
Premises or the negligent or intentional acts or omissions of Tritel or Tritel's
principals, employees, agents or independent contractors to the extent that such
injury, death or damage is not contributed to or caused by the acts or omissions
of SpectraSite or SpectraSite's use, operation or ownership of the Property or
the Tower Facilities; and
(b) SpectraSite shall exonerate, hold harmless, indemnify and
defend Tritel from any and all claims, obligations, liabilities, costs, demands,
damages, expenses, suits or causes of action, including costs and reasonable
attorneys' fees, which may arise out of (i) any injury to or the death of any
person; or (ii) any damage to property, if such injury, death or damage arises
out of or is attributable to or results from
16
SpectraSite's use, operation or ownership of the Property or the Tower
Facilities, or the negligent or intentional acts or omissions of SpectraSite or
SpectraSite's principals, employees, agents or independent contractors, to the
extent that such injury, death or damage is not caused by or contributed to by
the acts or omissions of Tritel or Tritel's use or operation of the Tower
Facilities or Property or its ownership interest in the Premises.
3.16 ENVIRONMENTAL INDEMNIFICATION.
(a) Tritel, its heirs, grantees, successors, and assigns shall
indemnify, defend, reimburse and hold harmless SpectraSite from and against any
and all environmental damages, caused by activities conducted on the Premises by
Tritel which result in or arise from (i) the presence of any substance, chemical
or waste identified as hazardous, toxic or dangerous in any applicable federal,
state or local law or regulation including petroleum or hydrocarbon based fuels
such as diesel, propane or natural gas (collectively, "Hazardous Materials")
upon, about or beneath the Premises or migrating to or from the Premises which
were introduced to the Premises by Tritel, or (ii) the violation of any
environmental requirements by Tritel pertaining to the Premises and any
activities thereon. Tritel covenants that it shall not nor shall Tritel allow
its employees, agents or independent contractors to treat, store or dispose of
any Hazardous Materials on the Premises or the Property in violation of any
applicable law.
(b) SpectraSite, its heirs, grantees, successors, and assigns
shall indemnify, defend, reimburse and hold harmless Tritel from and against any
and all environmental damages, caused by activities conducted on the Premises by
SpectraSite which result in or arise from (i) the presence of Hazardous
Materials upon, about or beneath the Premises or migrating to or from the
Premises which were introduced to the Premises by SpectraSite, or (ii) the
violation of any environmental requirements by SpectraSite pertaining to the
Premises and any activities thereon. SpectraSite covenants that it shall not,
nor shall SpectraSite allow its employees, agents or independent contractors to
treat, store or dispose of any Hazardous Materials on the Premises or the
Property in violation of any applicable law.
3.17 INSURANCE. (a) Tritel shall procure and maintain during the term
of this Master Lease the following insurance: (i) "All Risk" property insurance
which insures Tritel's Equipment for their full replacement cost; and (ii)
comprehensive general liability insurance with a commercial general liability
endorsement having a minimum limit of liability of $1,000,000, with a combined
limit for bodily injury and/or property damage for any one occurrence, and (iii)
excess/umbrella coverage of $2,000,000 provided that the imposition of these
limits of insurance shall not limit the liability of Tritel hereunder.
(b) SpectraSite shall maintain statutory Workers Compensation
Insurance and Employees' Liability for the statutory limit, but in no event no
less than One Million and No/100 Dollars ($1,000,000.00). SpectraSite agrees to
maintain general liability insurance and property insurance, in amounts deemed
reasonable and satisfactory to SpectraSite and Tritel, and which are in amounts
consistent with industry practices for the business in which SpectraSite is
engaged. Upon the prior written approval of Tritel which approval shall not be
unreasonably withheld, delayed or conditioned, SpectraSite shall have the right
to self insure, provided that SpectraSite shall maintain reserves consistent
with industry practices and approved by Tritel and that SpectraSite shall
maintain an excess coverage umbrella policy consistent with industry practices
and approved by Tritel.
(c) SpectraSite and any party holding a security interest in the
Tower Facilities which is identified to Tritel and any party holding a security
interest in Tritel's Equipment shall be named as an additional insured on any
insurance policy procured by Tritel pursuant to this Master Lease and Tritel and
any
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party holding a security interest in the Tritel Equipment who is identified to
SpectraSite shall be named as an additional insured on any insurance policy
procured by SpectraSite pursuant to this Master Lease.
3.18 SUBROGATION.
(a) IN GENERAL. All insurance policies required to be maintained
by Tritel and SpectraSite under this Master Lease shall contain a waiver of
subrogation provision under the terms of which the insurance carrier waives all
of such carrier's rights to proceed against SpectraSite.
(b) MUTUAL RELEASE. SpectraSite and Tritel each release the other
and their respective representatives from any claims by them or any one claiming
through or under them by way of subrogation or otherwise for damage to any
person or to the Premises and to the fixtures, personal property, improvements
and alterations in or on the Premises that are caused by or result from risks
insured against under any insurance policy carried by them, provided that such
releases shall be effective only if and to the extent that the same do not
diminish or adversely affect the coverage under such insurance policies.
3.19 DESTRUCTION OR CONDEMNATION. If the whole or any substantial part
of the Premises, the Tower Facilities or the Property shall be taken by any
public authority under the power of eminent domain, or if the whole or any
substantial part of the Premises, the Tower Facilities or the Property shall be
destroyed by fire or other casualty, so as to interfere with Tritel's use and
occupancy thereof, then the applicable SLA shall cease on the part so taken on
the date of possession by such authority of that part, (or in the event that
Tritel must remove Tritel's Equipment prior to that date, the date Tritel must
move Tritel's Equipment) and any unearned rent paid in advance of such date
shall be refunded by SpectraSite to Tritel within thirty (30) days of such
possession, and Tritel shall have the right to terminate the SLA upon written
notice to SpectraSite, which notice shall be delivered by Tritel within thirty
(30) days following the date notice is received by Tritel of such taking or
possession. If Tritel chooses not to terminate the SLA, the rent shall be
reduced or abated in proportion to the actual reduction or abatement of Tritel's
use of the Premises. In the event of any taking, destruction or other casualty
hereunder which prevents Tritel's use and occupancy of the Premises and/or the
Tower Facilities, subject to the terms of the Prime Lease (including obtaining
any necessary approvals thereunder) the Licensee shall have the option of
placing a temporary communications facility upon the Property for a period of up
to one year at a rate mutually agreeable to the parties.
3.20 DEFAULT. The occurrence of any of the following instances shall be
considered to be a default or a breach of the Applicable SLA by Tritel:
(a) any failure of Tritel to pay Rent or any other charge for
which Tritel has the responsibility of payment under this Master Lease, within
fifteen (15) days of written notice thereof; or
(b) any failure of Tritel to perform or observe any term,
covenant, provision or conditions of this Master Lease which failure is not
corrected or cured by Tritel within thirty (30) days of receipt by Tritel of
written notice from SpectraSite of the existence of such a default; except such
thirty (30) day cure period shall be extended as reasonably necessary to permit
Tritel to complete a cure so long as Tritel commences the cure within such
thirty (30) day cure period and thereafter continuously and diligently pursues
and completes such cure; provided, however, that in the event such default
exposes SpectraSite to potential liability for damages, fines or penalties or
causes a breach of any other agreement to which SpectraSite is a party, Tritel
shall immediately remedy such conditions or SpectraSite shall be entitled to
remedy such condition at Tritel's reasonable cost and expense; or
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(c) Tritel shall become bankrupt, insolvent or file a voluntary
petition in bankruptcy, have an involuntary petition in bankruptcy filed against
Tritel which is not dismissed within sixty (60) days of the date of the filing
of the involuntary petition, file for reorganization or arrange for the
appointment of a receiver or trustee in bankruptcy or reorganization of all or a
substantial portion of Tritel's assets, or Tritel makes an assignment for such
purposes for the benefit of creditors;
(d) this Master Lease or Tritel's interest herein or Tritel's
interest in the Premises are executed upon or attached and such execution or
attachment is not dismissed, released or removed within thirty (30) days of the
execution or attachment; or
(e) the imposition of any lien on the Tritel's Equipment except as
may be expressly authorized by this Master Lease, or an attempt by Tritel or
anyone claiming through Tritel to encumber SpectraSite's interest in the Tower
Facilities or the Property and such lien or encumbrance is not dismissed,
released or removed within thirty (30) days of such imposition or attempt; or
(f) the abandonment of the Premises in the event that such
abandonment would cause the revocation or rescission of any Government Approvals
for the Tower Facilities and another carrier is located upon the Tower
Facilities and such abandonment is not within thirty (30) days of written notice
thereof.
SpectraSite understands and agrees that a default by Tritel under the
terms of any SLA shall constitute an event of default under that Applicable SLA
but shall not constitute a default under any other SLAs and that SpectraSite
shall have the right but not the obligation to those remedies afforded to
SpectraSite at law or in equity and by paragraph 3.20 for each Site which is
subject to this Master Lease, provided, however, that in the event that any
default hereunder occurs under more than thirty-five percent (35%) of the SLAs
in effect under this Agreement at any single instance and such defaults are not
cured within t he notice periods provided herein, the aggregate of such defaults
shall constitute a default under the terms of this Agreement and SpectraSite
shall have the right but not the obligation to those remedies afforded to
SpectraSite at law or in equity by paragraph 3.20 for all of the Sites and the
SLAs which are subject to the Master Lease. The forbearance of SpectraSite to
exercise any remedies available to SpectraSite shall not constitute a wavier of
the ability of SpectraSite to exercise those remedies for the same or subsequent
defaults.
3.21 REMEDIES OF SPECTRASITE. In the event of a default by Tritel under
the terms of paragraph 3.19 of this Master Lease and after Tritel's failure to
cure such default within the time allowed to cure such default, then SpectraSite
may, in addition to all other rights or remedies that SpectraSite may have
hereunder at law or in equity;
(a) Terminate Tritel's right to possession of the Premises by any
lawful means, in which case the Applicable SLA shall terminate and Tritel shall
immediately surrender possession of the Premises to SpectraSite and SpectraSite
may re-enter the Premises and take possession thereof and remove all persons
therefrom, and Tritel shall have no further claim to the Premises or the
Applicable Tower Site under this Master Lease. Such termination shall not
relieve Tritel of any obligation hereunder and SpectraSite may also accelerate
the rent due for the balance of the then existing Term and declare all such
rentals to be immediately due and payable. In the event of any such termination,
SpectraSite shall also be entitled to recover from Tritel all damages incurred
by SpectraSite by reason of Tritel's default or breach including, without
limitation, (i) the cost of recovering possession of the Premises, (ii) expenses
of reletting including costs of necessary renovation and alteration of the
Premises, reasonable attorneys' fees and any real estate commission actually
paid, (iii) the amount of unpaid rent for the balance of the term, and (iv) that
portion of any brokerage fee paid by SpectraSite
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in respect of the SLA applicable to the unexpired term hereof. SpectraSite may
maintain Tritel's right to possession of the Premises, in which case the
Applicable SLA shall continue in effect whether or not Tritel shall have
abandoned the Premises, and enforce SpectraSite's rights and remedies under this
Master Lease and the applicable SLA including, without limitation, the right to
recover rent as it becomes due hereunder.
(b) Alternatively, SpectraSite may expel Tritel from the Premises
without terminating the Applicable SLA, make such alterations and repairs as
which may be necessary in order to relet the Premises and may relet the Premises
or any part thereof for such term or terms (which may be for a term extending
beyond the term of this Master Lease) and at such rental or rentals and upon
such other terms and conditions as SpectraSite in its discretion may deem
advisable. Upon each such reletting all rentals and other sums received by
SpectraSite from such reletting shall be applied, first, to the payment of any
costs and expenses of such reletting, including reasonable brokerage fees and
attorneys' fees and of costs of such alterations and repairs; second, to the
payment of rental and other charges due and unpaid under the applicable SLA;
third to the payment of any indebtedness other than rental due hereunder from
Tritel to Spectrasite; and the residue, if any, shall be held by SpectraSite and
applied in payment of future rental and other charges payable by Tritel
hereunder as the same may become due and payable under the Applicable SLA. If
such rentals and other sums received from such reletting during any month are
less than that to be paid during that month by Tritel hereunder, Tritel shall
pay such deficiency to SpectraSite ; if such rentals and sums shall be more,
Tritel shall have no right to the excess. Such deficiency shall be calculated
and paid monthly. No re-entry or taking possession of the Premises by
SpectraSite shall be construed as an election on its part to terminate this
Master Lease unless a written notice of such intention is given to Tritel or
unless the termination thereof is decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, SpectraSite may at any
time hereafter elect to terminate the Applicable SLA for such previous breach
and pursue any other remedy now or hereafter available to SpectraSite at law or
in equity.
3.22 MITIGATION BY SPECTRASITE. No efforts by SpectraSite to mitigate
the damage by Tritel's default under this Master Lease shall be deemed a waiver
of SpectraSite's rights to recover damages under this Master Lease.
3.23 DEFAULT BY SPECTRASITE. The occurrence of any of the following
instances shall be considered to be a default or a breach of the Applicable SLA
by SpectraSite:
(a) any failure of SpectraSite to pay any charge for which
SpectraSite has the responsibility of payment under this Master Lease or any SLA
within fifteen (15) days of written notice from Tritel, or its agents or
representatives thereof; or
(b) any failure of SpectraSite to perform or observe any term,
covenant, provision or conditions of this Master Lease or any SLA which failure
is not corrected or cured by SpectraSite within thirty (30) days of receipt by
SpectraSite of written notice from Tritel of the existence of such a default;
except such thirty (30) day cure period shall be extended as reasonably
necessary to permit SpectraSite to complete a cure so long as SpectraSite
commences the cure within such thirty (30) day cure period and thereafter
continuously and diligently pursues and completes such cure; provided, however,
that in the event such default exposes Tritel to potential liability for
damages, fines or penalties or causes a breach of any other agreement to which
Tritel is a party, SpectraSite shall immediately remedy such conditions or
Tritel shall be entitled to remedy such condition at SpectraSite's sole cost and
expense; or
20
(c) SpectraSite shall become bankrupt, insolvent or file a
voluntary petition in bankruptcy, have an involuntary petition in bankruptcy
filed against SpectraSite which is not dismissed within sixty (60) days of the
date of the filing of the involuntary petition, file for reorganization or
arrange for the appointment of a receiver or trustee in bankruptcy or
reorganization of all or a substantial portion of SpectraSite's assets, or
SpectraSite makes an assignment for such purposes for the benefit of creditors;
(d) this Master Lease or SpectraSite's interest herein or
SpectraSite's interest in the Premises, the Tower Facilities or the Property are
executed upon or attached and such execution or attachment is not dismissed,
released or removed within thirty (30) days of the execution or attachment; or
(e) the imposition of any lien on the Tower Facilities except as
may be expressly authorized by this Master Lease, or an attempt by SpectraSite
or anyone claiming through SpectraSite to encumber Tritel's interest in the
Tower Facilities or the Property and such lien or encumbrance is not dismissed,
released or removed within thirty (30) days of such imposition or attempt.
SpectraSite understands and agrees that a default by SpectraSite under the terms
of any SLA shall constitute an event of default under that SLA but shall not
constitute a breach or a default under any other SLA and that Tritel shall have
the right but not the obligation to those remedies afforded to Tritel at law or
in equity and by paragraph 3.23 for each Tower Facility which is subject to this
Master Lease, provided however, that in the event that any default hereunder
occurs under more than thirty-five percent (35%) of the SLAs in effect under
this Agreement at any single instance and such defaults are not cured within the
notice periods provided herein, the aggregate of such defaults shall constitute
a default under the terms of this Agreement and Tritel shall have the right but
not the obligation to those remedies afforded to Tritel at law or in equity by
Paragraph 3.23 for all of the sites and the SLAs which are subject to the Master
Lease. The forbearance of Tritel to exercise any remedies available to Tritel
shall not constitute a wavier of the ability of Tritel to exercise those
remedies for the same or subsequent defaults.
3.24 REMEDIES OF TRITEL. In the event of a default by SpectraSite under
the terms of Paragraph 3.22 of this Master Lease or any SLA, and after
SpectraSite's failure to cure such default within the time allowed to cure such
default, then Tritel may, (a) xxx for damages; and/or (b) terminate the
applicable SLA, without waiving its right to xxx for damages, such remedies to
be cumulative and concurrent or sequential at the election of Tritel, in
addition to all other rights and remedies Tritel may have at law or equity. In
the event a default occurs under more than thirty-five percent (35%) of the SLAs
in effect under this Agreement at any single instance and such defaults are not
cured within the notice periods provided in section 3.22, then Tritel may (a)
xxx for damages; and/or (b) terminate the Master Lease without waiving its right
to xxx for damages; in addition to all other rights and remedies Tritel may have
at law or equity. All of the remedies provided in this Agreement or in any other
SLA or at law or in equity are cumulative and Tritel may exercise such remedies
concurrently or sequentially in such order as it may choose.
3.25 MITIGATION BY TRITEL. No efforts by Tritel to mitigate the damage
by SpectraSite's default under this Master Lease shall be deemed a waiver of
Tritel's rights to recover damages under this Master Lease.
3.26 SUBORDINATION. This Master Lease and any option or right of first
refusal granted hereunder, at SpectraSite's option, shall be subordinate to any
mortgage, deed of trust or other encumbrance now or hereafter placed upon the
Premises and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions thereof,
provided that the beneficiary or lender under such mortgage, deed of trust or
other encumbrance enters into a satisfactory non-disturbance and
21
attornment agreement with Tritel. Subject to the provisions of Section 3.7 of
this Master Lease, any SLA shall. be subject to the terms and provisions of the
Prime Lease.
IV. GENERAL PROVISIONS
4.1 NOTICES. All notices or demands by or from SpectraSite to Tritel,
or Tritel to SpectraSite, shall be in writing. Such notices or demands shall be
mailed to the other party at the following address:
SpectraSite SpectraSite Communications, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
Attention: Contracts Management
Tritel: Tritel Communications, Inc.
000 X. Xxxxx Xxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
4.2 ASSIGNMENTS AND SUBLEASES
(a) LIMITATIONS ON ASSIGNMENT BY TRITEL. Tritel shall not
voluntarily, involuntarily or by operation of law assign, sell, sublease or
otherwise transfer Tritel's interest in this Master Lease, any SLA(s), any Tower
Facility(ies), any Ground Lease(s), any Property(ies) or Premises, without
SpectraSite's prior written consent which consent may not be unreasonably
withheld, delayed or conditioned. Notwithstanding the foregoing, in the event of
a proposed assignment, Tritel may, upon fifteen (15) days' written notice to
SpectraSite, assign this Master Lease, any SLA(s), any Tower Facility(ies), and
Ground Lease(s), and any Property(ies) without SpectraSite's consent if the
proposed assignee, transferee or sublessee provides audited (i) balance sheets
and (ii) statements of operations prepared in accordance with GAAP which
indicate that the assignee has a financial position sufficient to meet its
obligations under this Agreement. If Tritel otherwise desires at any time to
assign or otherwise transfer this Master Lease, any SLA, any Tower Facility, any
Ground Lease, any Property and/or any Premises it shall first notify SpectraSite
of its desire to do so and shall submit in writing to SpectraSite (i) the name
of the proposed sublessees, transferee, purchaser or assignee; (ii) the, terms
and provisions of the proposed sublease, transfer or assignment; and (iii) such
financial and other information as SpectraSite may reasonably request concerning
the proposed Sublessee, transferee, purchaser or assignee. At anytime within
fifteen (15) days after SpectraSite's receipt of the information specified,
SpectraSite may by written notice to Tritel: consent to the subletting or
assignment upon the terms and to the sublessees, transferees, purchasers or
assignees proposed or refuse to give its consent. If SpectraSite consents to
such assignment, purchase, transfer or subletting, Tritel may, within ninety
(90) days after the date of SpectraSite's consent, enter into a valid
assignment, purchase, transfer or sublease of the Master Lease, the applicable
SLA, the applicable Tower Facility, the applicable Premises, or portion thereof
upon the terms and conditions described in the information required above to be
furnished by Tritel to SpectraSite, or upon other terms not more detrimental to
SpectraSite; provided, however, that any material change in such terms shall be
subject to SpectraSite's consent. In such event, Tritel shall be relieved of all
liabilities hereunder relating to the assets which are assigned.
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(b) PLEDGES BY TRITEL. Notwithstanding anything else contained
herein, Tritel may, without notice or consent of SpectraSite, pledge, mortgage,
convey by deed of trust or security deed, assign, create a security interest in,
or otherwise execute and deliver any and all instruments for the purpose of
securing bona fide indebtedness all or any part of Tritel's interest in this
Master Lease, any SLA, any Premises and/or all or any portion of Lessee's right,
title, and interest in and to any and/or all of the Tritel Equipment. Promptly
on Tritel's or Tritel's lender's request, SpectraSite shall execute and deliver,
and shall assist in facilitating the execution and delivery of, all documents
reasonably requested by any of Tritel's lenders including, but not limited to,
waivers of SpectraSite's right to levy or distrain upon for rent any of Tritel's
property given as security for a debt, acknowledgements that none of the Tritel
Equipment shall become fixtures, consents to Tritel's assignment to any
lender(s) of any and all of Tritel's interest in or to this Agreement, any SLA
or Premises, and the Tritel Equipment, consents to giving notice to Tritel's
lender(s) notice in the event of Tritel's default under the provisions of the
SLA or the Master Lease, provided that such Lender requests notice from and
provides notice addresses to SpectraSite and nondisturbance agreements from
SpectraSite; provided, however, that all such documents and consents shall be in
a form which is reasonably acceptable to SpectraSite and which will not
materially increase SpectraSite's burdens nor materially impair SpectraSite's
rights under this Master Lease or any SLA. Tritel shall reimburse SpectraSite
for any out-of-pocket costs incurred by SpectraSite in complying with this
provision including, but not limited to, SpectraSite's reasonable attorneys'
fees incurred in reviewing and negotiating such documents and consents.
(c) LIMITATIONS ON ASSIGNMENT BY SPECTRASITE. (i) SUBLEASE.
SpectraSite shall have the right, subject to the provisions of this Agreement
and the restrictions in paragraph 3.13 hereof, to sublease portions of the Tower
Facilities, the Property or the Easements in SpectraSite's discretion without
obtaining Tritel's consent or giving notice to Tritel, provided that such
sublease does not violate the provisions of and is subject to the provisions of
this Master Lease and any applicable SLA, and provided that such sublease only
leases or licenses a portion of the Tower Facilities or portion of the Property
and a portion of the Easements and does not effect a sublease of the entire
Tower Facilities, the entire Property or the Entire Easement.
(ii) ASSIGNMENT. SpectraSite shall not voluntarily, involuntarily
or by operation of law assign, sell, sublease or otherwise transfer
SpectraSite's interest in this Master Lease, any SLA(s), any Tower
Facility(ies), any Ground Lease(s), any Property(ies) [except as provided in
4.2(c)(i)] or Premises, without Tritel's prior written consent which consent may
not be unreasonably withheld, delayed or conditioned. Notwithstanding the
foregoing, in the event of a proposed assignment, SpectraSite may, upon fifteen
(15) days' written notice to Tritel, assign this Master Lease, any SLA(s), any
Tower Facility(ies), any Ground Lease(s), and any Property(ies) without Tritel's
consent if the proposed assignee, mortgagee or sublessee provides audited (i)
balance sheets and (ii) statements of operations prepared in accordance with
GAAP which indicate that the assignee has a financial position sufficient to
meet its obligations under this Agreement. If SpectraSite otherwise desires at
any time to assign or otherwise transfer this Master Lease, any SLA, any Tower
Facility, any Ground Lease, any Property or Premises it shall first notify
Tritel of its desire to do so and shall submit in writing to Tritel (i) the name
of the proposed sublessees, transferee, purchaser or assignee; (ii) the, terms
and provisions of the proposed sublease, transfer or assignment; and (iii) such
financial and other information as Tritel may reasonably request concerning the
proposed Sublessee, transferee, purchaser or assignee. At any time within
fifteen (15) days after Tritel's receipt of the information specified, Tritel
may by written notice to SpectraSite: consent to the subletting or assignment
upon the terms and to the sublessees, transferees, purchasers or assignees
proposed or refuse to give its consent. If Tritel consents to such assignment,
purchase, transfer or subletting, SpectraSite may, within ninety (90) days after
the date of Tritel's consent, enter into a valid assignment, purchase, transfer
or sublease of the Master Lease, the applicable SLA(s), the applicable Tower
Facility, the applicable Ground Lease, the applicable Property or applicable
Premises or portion thereof
23
upon the terms and conditions described in the information required above to be
furnished by SpectraSite to Tritel, or upon other terms not more detrimental to
Tritel; provided, however, that any material change in such terms shall be
subject to Tritel's consent. In such event, SpectraSite shall be relieved of all
liabilities hereunder relating to the assets which are assigned.
(d) PLEDGE BY SPECTRASITE. Notwithstanding anything else contained
herein, SpectraSite may, without notice or consent of Tritel, pledge, mortgage,
convey by deed of trust or security deed, assign, create a security interest in,
or otherwise execute and deliver any and all instruments for the purpose of
securing bona fide indebtedness all or any part of SpectraSite's interest in
this Master Lease, any SLA, any Premises, and/or all or any portion of
SpectraSite's right, title, and interest in and to any and/or all of Tower
Facilities, the Property or the Easements. Promptly on SpectraSite's or
SpectraSite's lender's request, Tritel shall execute and deliver, and shall
assist in facilitating the execution and delivery of, all documents requested by
any of SpectraSite's lenders including, but not limited to, consents to giving
notice to SpectraSite's lender(s) in the event of SpectraSite's default under
the provision of the SLA or the Master Lease, and consents to SpectraSite's
assignment to any lender(s) of any and all of SpectraSite's interest in or to
this Agreement, any SLA or Premises provided, however, that all such documents
and consents shall be in a form which is reasonably acceptable to Tritel and
which will not materially increase SpectraSite's burdens nor materially impair
Tritel's rights under this Master Lease or any SLA. SpectraSite shall reimburse
Tritel for any out-of-pocket costs incurred by Tritel in complying with this
provision including, but not limited to, Tritel's reasonable attorneys' fees
incurred in reviewing and negotiating such documents and consents.
(e) ASSIGNMENT OF CONSTRUCTION OBLIGATIONS. Notwithstanding
anything else contained herein, SpectraSite shall not voluntarily,
involuntarily, or by operation of law assign or otherwise transfer its rights or
obligations (including, but not limited to, the obligation to construct the
Tower Facilities) relating to any Site which is subject to this Agreement, prior
to the acceptance of a Site by Tritel pursuant to paragraph 2.8 hereof.
4.3 REPRESENTATIONS AND WARRANTIES OF TRITEL. Tritel represents and
warrants to SpectraSite that:
(a) ORGANIZATION, GOOD STANDING AND AUTHORITY. It is a
corporation, duly organized, validly existing and in good standing under the
laws of Delaware and has the requisite corporate power and authority to enter
into and perform this Master Lease and Tritel is duly qualified to do business
in the states of Alabama, Florida, Mississippi, Tennessee, Kentucky, and in any
other Market in which Tritel is doing business with SpectraSite.
(b) AUTHORIZATION AND VALIDITY OF MASTER LEASE. That Tritel's
execution and delivery of this Master Lease have been duly authorized and no
further action on the part of Tritel is necessary to authorize this Master Lease
or the consummation of the transactions contemplated herein. This Master Lease
constitutes the valid and binding obligation of Tritel duly enforceable in
accordance with its terms.
(c) NO BREACH OF OTHER INSTRUMENTS. That there is no contract or
agreement or other instrument to which Tritel is a party or by which Tritel or
its assets are bound which prohibits the execution or delivery by Tritel of this
Master Lease or the performance or observance by Tritel of any term or condition
of this Master Lease and, subject to the fulfillment of all conditions set forth
therein, neither execution and delivery of this Master Lease nor the
consummation of the transactions contemplated hereby will violate any term or
provision of any such contract, agreement, or instrument.
24
(d) NO VIOLATION OF LAW OR ORDER. That subject to the fulfillment
of all conditions set forth herein, neither the execution and delivery of this
Master Lease nor transactions contemplated hereby, shall result in the violation
by Tritel of any, law, regulation, judgment or order of any court or
governmental authority applicable to Tritel or result in a breach of the terms
of this or any other agreement to which Tritel is a party.
4.4 REPRESENTATIONS AND WARRANTIES OF SPECTRASITE. SpectraSite
represents and warrants to Tritel that:
(a) ORGANIZATION, GOOD STANDING AND AUTHORITY. It is a
corporation, duly organized, validly existing and in good standing under the
laws of Delaware and has the requisite corporate power and authority to enter
into and perform this Master Lease and SpectraSite is duly qualified to do
business in the states of Alabama, Florida, Mississippi, Tennessee and Kentucky,
and in the event that SpectraSite develops, leases and constructs Tower
Facilities in any other Markets, SpectraSite shall become duly qualified to do
business in the state of such Market.
(b) AUTHORIZATION AND VALIDITY OF MASTER LEASE. That SpectraSite's
execution and delivery of this Master Lease have been duly authorized and no
further action on the part of SpectraSite is necessary to authorize this Master
Lease or the consummation of the transactions contemplated herein. This Master
Lease constitutes the valid and binding obligation of SpectraSite duly
enforceable in accordance with its terms.
(c) NO BREACH OF OTHER INSTRUMENTS. That there is no contract or
agreement or other instrument to which SpectraSite is a party or by which
SpectraSite or its assets are bound which prohibits the execution or delivery by
SpectraSite of this Master Lease or the performance or observance by SpectraSite
of any term or condition of this Master Lease and, subject to the fulfillment of
all conditions set forth therein, neither execution and delivery of this Master
Lease nor the consummation of the transactions contemplated hereby will violate
any term or provision of any such contract, agreement, or instrument.
(d) NO VIOLATION OF LAW OR ORDER. That subject to the fulfillment
of all conditions set forth herein, neither the execution and delivery of this
Master Lease nor transactions contemplated hereby, shall result in the violation
by SpectraSite of any, law, regulation, judgment or order of any court or
governmental authority applicable to SpectraSite or result in a breach of the
terms of this or any other agreement to which SpectraSite is a party.
(e) MARKETABLE LEASEHOLD TITLE. SpectraSite holds good and
marketable leasehold title to its interest in the Property, the Easements, the
Premises and the Tower Facilities, subject to any encumbrances or defects which
were created by or known to Tritel prior to the execution of the SLA for a Site;
provided, however, that SpectraSite's liability for a breach of this provision
shall not exceed the amount which SpectraSite is entitled to recover from its
title insurance policy for such Site. SpectraSite hereby agrees to obtain a
policy for title insurance for each Site in an amount which shall not be less
than One Hundred Fifty Thousand and No/100 Dollars ($150,000.00).
4.5 MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. The terms, covenants and conditions
contained in this Master Lease shall be binding upon and inure to the benefit of
the parties hereto, and also their respective heirs, executors, administrators,
personal representatives, successors and assigns subject to the provisions of
25
paragraph 4.2 of this Master Lease relating to restrictions upon sale,
assignment or subletting of this Master Lease.
(b) INTEGRATION. It is understood that there are no oral
agreements or representations between the parties hereto affecting this Master
Lease and this Master Lease supersedes and cancels any and all previous
negotiations, arrangements, agreements or representations and understandings, if
any, between the parties hereto with respect to the subject matter thereof,
except the Site Acquisition Services Agreement between Tritel and SpectraSite
dated July 28, 1999 and any Attachments or documents referred to herein. There
are no other representations or warranties between the parties and all reliance
with respect to representations is solely upon the representations and
agreements contained in this document.
(c) HEADINGS. The Headings and paragraph titles herein are for
convenience only and do not in any way define, limit or construe the contents of
such Paragraphs.
(d) SEVERABILITY. It is agreed that if any provision of this
Master Lease shall be determined to be void by any court of competent
jurisdiction, then such determination shall not affect any other provisions of
this Master Lease and all such other provisions shall remain in full force and
effect.
(e) FORCE MAJEURE. Except as otherwise provided in this Master
Lease, any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes therefor governmental restrictions, actions or inactions,
governmental controls, enemy or hostile governmental action, civil commotion,
fire or other casualty, and other causes beyond the reasonable control of the
party obligated to perform, shall excuse the performance by such or a period
equal to any such delay or stoppage.
(f) HOLDING OVER. If Tritel remains in possession of the Premises
after the termination of the applicable SLA without the execution of a new SLA,
Tritel shall be deemed to be occupying the Premises as a tenant from
month-to-month at the last applicable monthly rental provided for herein,
subject to all the other conditions, provisions and obligations of this Master
Lease and the applicable SLA insofar as the same are applicable to a
month-to-month tenancy.
(g) ESTOPPEL CERTIFICATE. (i) Tritel shall, upon the request of
any lender of SpectraSite, but no more than two (2) times in any single year,
upon not less than ten (10) days' prior written notice from SpectraSite,
execute, acknowledge and deliver to SpectraSite's lender a statement in writing
on a form prescribed by SpectraSite's lender reasonably acceptable to Tritel (i)
certifying that this Master Lease is unmodified and in full force and effect
(or, if modified, stating the nature of such modification and certifying that
this Master Lease as so modified is in full force and effect), or if not in full
force and effect stating that the Master Lease is not in full force and effect
and the reasons therefore, to the best of its knowledge, and the date to which
the rent and other charges are paid in advance, if any, and (ii) acknowledging
that there is not, to the best of Tritel's knowledge, any uncured default on the
part of SpectraSite hereunder, or specifying such default if any is claimed.
(ii) SpectraSite shall, upon the request of any lender of Tritel,
but no more than two (2) times in any single year, upon not less than ten (10)
days' prior written notice from Tritel, execute, acknowledge and deliver to
Tritel's lender a statement in writing on a form prescribed by Tritel's lender
reasonably acceptable to SpectraSite (i) certifying that this Master Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Master Lease as so modified is in
full force and
26
effect), or if not in full force and effect stating that the Master Lease is not
in full force and effect and the reasons therefore, to the best of its
knowledge, and the date to which the rent and other charges are paid in advance,
if any, and (ii) acknowledging that there is not, to the best of SpectraSite's
knowledge, any uncured default on the part of Tritel hereunder, or specifying
such default if any is claimed.
(h) ATTORNMENT. (i) Upon request of the mortgagee, Tritel will
attorn, as lessee under this Master Lease, to the purchaser at any foreclosure
sale thereunder, or if any ground or underlying Prime Lease is terminated for
any reason, Tritel will attorn, as Tritel under this Master Lease, to the Prime
Lessor under the ground Prime Lease provided that the Prime Lessor agrees not to
disturb Tritel's possession of the Premises and agree to honor Tritel's rights
and obligations under this Agreement and the applicable SLA, and will execute
such instruments as may be necessary or appropriate to evidence such attornment.
(ii) Upon request of the mortgagee, SpectraSite will attorn, as
lessor under this Master Lease, to the purchaser at any foreclosure sale
thereunder.
(i) RIGHT OF APPROVAL BY SECURED PARTY. This Master Lease may not
be modified or amended so as to reduce the Rent, as adjusted, or shorten the
Term without the prior written consent, in each instance, of any mortgagee or
secured party having an interest in the Tower Facilities who has given notice to
Tritel of its security interest.
(j) CERTAIN RULES OF CONSTRUCTION. (i) Notwithstanding the fact
that certain references elsewhere in this Master Lease to acts required to be
performed by Tritel hereunder, or to breaches or defaults of this Master Lease
by Tritel, omit to state that such breaches or defaults by Tritel are material,
unless the context implies to the contrary, and all breaches or defaults by
Tritel hereunder shall be deemed material. Tritel shall be fully responsible and
liable for the observance and compliance by concessionaires of and with all the
terms and conditions of this Master Lease, which terms and conditions shall be
applicable to concessionaires as if they were the Tritel hereunder and failure
by a concessionaire fully to observe and comply with the terms and conditions of
this Master Lease shall constitute a default hereunder by Tritel.
(ii) Notwithstanding the fact that certain references elsewhere in
this Master Lease to acts required to be performed by SpectraSite hereunder, or
to breaches or defaults of this Master Lease by SpectraSite, omit to state that
such breaches or defaults by SpectraSite are material, unless the context
implies to the contrary, and all breaches or defaults by SpectraSite hereunder
shall be deemed material. SpectraSite shall be fully responsible and liable for
the observance and compliance by concessionaires of and with all the terms and
conditions of this Master Lease, which terms and conditions shall be applicable
to concessionaires as if they were SpectraSite hereunder and failure by a
concessionaire fully to observe and comply with the terms and conditions of this
Master Lease shall constitute a default hereunder by SpectraSite.
(k) WARRANTIES AND REPRESENTATIONS. The warranties and
representations. made in this Agreement shall be deemed to be made, reaffirmed,
ratified, rewarranted and re-represented upon the execution of each SLA.
(l) COUNTERPARTS. This Master Lease may be executed in
counterparts with the same effect as if both parties hereto had signed the same
document. Both counterparts shall be construed together and shall constitute one
(1) Master Lease.
(m) INTERPRETATION. The parties hereby acknowledge that the
draftsmanship of this Agreement was a cooperative effort by both parties who
were represented by counsel and that this Master Lease
27
shall not be construed either for or against SpectraSite or Tritel, but this
Master Lease shall be interpreted in accordance with the general tenor of the
language in an effort to reach an equitable result.
(n) GOVERNING LAW. This Master Lease is to be governed by and
construed in accordance with the laws of the state in which the Premises is
situated.
(o) NO PARTNERSHIP. Tritel and SpectraSite agree that their
relationship under this Master Lease shall be that of landlord and tenant and
that no partnership is intended or shall be created by this Master Lease.
(p) LIMITATION OF SPECTRASITE'S AND TRITEL'S LIABILITY.
SpectraSite shall not be responsible for any incidental or consequential damages
arising under this Agreement or any SLA incurred or resulting from (i) Tritel's
(or any party claiming by, through or under Tritel's use or Tritel (or any party
claiming by through or under Tritel) inability to use the Premises (or any
portion thereof), or from (ii) damage to Tritel's Equipment (or any party
claiming by, through or under Tritel) which is caused by the negligence of
SpectraSite. Tritel shall not be responsible for any incidental or consequential
damages arising under this agreement or any SLA incurred or resulting from (i)
SpectraSite's (or any party claiming by, through or under Licensor) use or
SpectraSite's (or any party claiming by, through or under SpectraSite) inability
to use the Property, the tower Facilities, the Easements, or the Premises (or
any portion thereof) or from (ii) damage to the Tower Facilities, the Property,
the Easements, the Premises, or equipment or property of SpectraSite (or any
party claiming by, through or under SpectraSite which is caused by the
negligence of Tritel.
(q) CONSENT. SpectraSite and Tritel covenant that whenever their
consent or approval is required under this Master Lease said consent shall not
be conditioned or unreasonably withheld, delayed, or conditioned.
(r) SCHEDULES. Tritel and SpectraSite acknowledge and agree that
Schedules may be added to Attachment VII to the Master Lease to define, set,
modify, covenant and agree upon certain terms and conditions of the Master
Lease. The Schedules shall only be applicable to the Markets identified in each
Schedule and each Schedule must be executed and signed by a duly authorized
representative of SpectraSite and Tritel. Upon execution by a duly authorized
officer of Tritel and SpectraSite, the Schedule shall be added to and be
incorporated into and become a part of the terms, conditions, and covenants of
the Master Lease. In the event of any conflict or contradiction within the terms
and conditions of the Schedule and the Master Lease, the terms and conditions of
the Schedule shall control.
(s) DAYS. In computing any period of time under this Agreement,
the date of the act, event or default upon which the designated period of time
begins to run shall be included in the period of time calculated. In the
calculation of the number of days elapsed, only business days shall be included
in the computation.
(t) NOTICES. Any notices to be received by SpectraSite or Tritel
under this Agreement shall be deemed properly given if marked to the other party
with proper postage via the United States Mail or sent via a reputable overnight
carrier to the following address:
28
TO 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
TO TRITEL:
Tritel Communications, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
IN WITNESS WHEREOF, SpectraSite and Tritel have executed this Master
Lease and the "Effective Date" of this Master Lease shall be the last date that
this Master Lease is signed by SpectraSite and Tritel.
SPECTRASITE:
SPECTRASITE COMMUNICATIONS, INC.
BY:
----------------------------------
TITLE:
-------------------------------
DATE:
--------------------------------
TRITEL:
------------------------------
TRITEL COMMUNICATIONS, INC.:
BY:
----------------------------------
XXXXX X. XXXXXXXX, XX.
EXECUTIVE VICE PRESIDENT
CHIEF OPERATING OFFICER
DATE:
--------------------------------
29
LIST OF ATTACHMENTS
ATTACEMENT DESCRIPTION
---------- -----------
I ASSIGNMENT
II MEMORANDUM OF ASSIGNMENT
III ESTOPPEL CERTIFICATE
IV SITE LEASE AGREEMENT
V MEMORANDUM OF SITE LEASE AGREEMENT
VI COLLOCATION APPLICATION
VII MARKET SPECIFICATIONS
VIII NOTICE OF COMPLETION OF TOWER FACILITIES
IX LETTER CONFIRMING COMMENCEMENT DATE
30
ATTACHMENT I
ASSIGNMENT OF PRIME LEASE
THIS ASSIGNMENT OF PRIME LEASE AGREEMENT ("Assignment ") is made and
entered into as of the _____ day of ________, ________, by and between
SpectraSite Communications, Inc., a Delaware corporation ("SpectraSite"), and
Tritel Communications, Inc., a Delaware Corporation, ("Tritel").
WHEREAS, Tritel has entered into a ground lease agreement, lease
agreement or other similar agreement (the "Prime Lease") for the lease of the
real property more particularly described in Exhibit "A" attached hereto (the
"Property") upon which Tritel has constructed or intends to construct a tower
and related facilities and for an easement for ingress, egress and utilities
over the real property more particularly described in Exhibit "B" attached
hereto (the "Easement");
WHEREAS, Tritel desires to assign the Prime Lease for said Property, a
copy of which is attached hereto as Exhibit "C", to SpectraSite; and
WHEREAS, SpectraSite desires to develop the tower and certain
facilities on the Property and sublease a portion of the space upon the Tower
Facilities to Tritel.
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, Tritel and SpectraSite do hereby agree as
follows:
1. Assignment. Tritel does hereby assign to SpectraSite and SpectraSite
shall and hereby assumes and agrees to be bound by the Prime Lease, or such
other contract through which Tritel has acquired an interest in the real
property which is the subject of the Prime Lease together with any easements for
ingress, egress and utilities ("Easements") to the Property.
2. Covenants of Tritel. Tritel covenants that it:
(a) unconditionally and absolutely assigns, transfers, sets over and
conveys to SpectraSite without warranty or representation except as otherwise
set forth herein, free and clear of all liens, claims and encumbrances, except
as shown in Exhibit "D", all of Tritel's right, title and interest in, to and
under the Prime Lease and the Easements except as such rights may be limited or
modified by any (if any) addenda attached to the Prime Lease. Tritel represents
and warrants to SpectraSite that all addenda to the Prime Lease are attached to
this Agreement as part of Exhibit "C". The Easements, if any, in addition to the
Prime Lease are attached hereto as Exhibit "E".
(b) shall warrant, indemnify and defend the leasehold title assigned to
SpectraSite against the lawful claims of all persons provided that such claim
arises as a result of Tritel's interest in the Prime Lease, but no further or
otherwise.
(c) to the best of its knowledge, without independent inquiry or
investigation, has no knowledge or notice of any default, defense, offset,
claim, demand, counterclaim or cause of action which may presently exist under
the Prime Lease; and
31
(d) to the extent Tritel may assign, Tritel irrevocably assigns,
transfers, conveys and sets over to SpectraSite without warranty or
representation and SpectraSite accepts from Tritel all of the right, title and
interest of Tritel under each and all of the following items (without warranty
that any of the following may be assigned):
(i) the Federal Aviation Administration application, responses,
approvals and registration numbers submitted or received by Tritel with
respect to the tower proposed to be constructed on the Property;
(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 Tritel 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 Tritel;
(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
The items described in paragraphs 2(d) may hereinafter be collectively referred
to as "Site Acquisition Items"; and
(e) shall use diligent efforts to assist SpectraSite in obtaining an
estoppel certificate from the lessor in the Prime Lease in substantially the
same form as is attached hereto as Exhibit "E" ("Estoppel Certificate").
SpectraSite shall use diligent efforts to obtain such Estoppel Certificate from
each lessor.
3. Covenants of Spectrasite. SpectraSite covenants that:
(a) SpectraSite hereby assumes the Prime Lease and all of Tritel's
duties and obligations under the Prime Lease arising subsequent to the date
hereof and SpectraSite hereby agrees to promptly and faithfully perform all of
the obligations of Tritel under the Prime Lease.
(b) SpectraSite shall and hereby agrees to hold Tritel harmless and
indemnify Tritel from any and all claims, losses, obligations, damages, costs or
expenses ever suffered, threatened or incurred by Tritel which claims, losses,
obligations, damages, costs or expenses must be paid by Tritel to a third party
(including, without limitation, any lawyers, experts, engineers or similar
professionals) or which Tritel may expend in defending itself against any claim
threatened or made by a third party which arise out of any act or omission of
SpectraSite under the Prime Lease, including without limitation, any default
under the Prime Lease.
4. Master Lease. This Assignment is being executed pursuant to the
terms of a Master Build To Suit and Lease Agreement (the "Master Lease") and in
the event that there is a conflict between the terms and
32
conditions of the Master Lease, this Assignment, the terms and conditions of
this Assignment shall control. This Assignment shall remain subject to the
remaining terms and conditions of the Master Lease.
IN WITNESS WHEREOF, SpectraSite and Tritel have signed this Agreement
as of the date and year first above written.
TRITEL: SPECTRASITE:
TRITEL COMMUNICATIONS, INC. SPECTRASITE COMMUNICATIONS, INC.
By: By:
--------------------------------- ---------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx. Name:
------------------------------- -------------------------------
Title: Executive Vice President Title:
------------------------------ ------------------------------
33
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
34
EXHIBIT "B"
LEGAL DESCRIPTION OF EASEMENTS
35
EXHIBIT "C"
COPY OF PRIME LEASE
36
EXHIBIT "D"
COPY OF EASEMENTS, IF ANY
37
EXHIBIT "E"
ESTOPPEL CERTIFICATE
THIS INSTRUMENT is given as of this ___ day of _________________, __,
by ("Lessor") to SpectraSite Communications, Inc. ("Assignee").
RECITALS
A. Lessor entered into a Lease Agreement or similar agreement with
_____ ( __ )numbers of addenda attached thereto, (collectively, the "Prime
Lease") dated as of the ___ day of _____, ____with Tritel Communications, Inc.,
a Delaware corporation ("Lessee").
B. Lessee desires to assign to Assignee its interest in the Prime
Lease.
C. Assignee seeks Lessor's acknowledgment, as of the date of execution
of this Instrument, of certain matters affecting the Prime Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, intending to be legally bound:
1. Lessor's Estoppel Certificate. Lessor hereby certifies, with the
understanding that Assignee is relying upon the statements made herein, the
following:
a. The Prime Lease constitutes the entire agreement between the parties
with respect to the Premises. The Prime Lease has not been amended and there are
no other agreements between Lessor and Lessee with respect to the property or
the easements which are described in the Prime Lease.
b. The Prime Lease is in full force and effect in accordance with its
terms. To the best of Lessor's knowledge, neither Lessee nor Lessor is in
default under any of the terms of the Prime Lease, and 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 Prime Lease.
c. All applicable Prime Lease fees and rent (if any) and other charges
and payments due Lessor from Lessee under the Prime 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).
2. Consent. Lessor hereby acknowledges the right of Lessee to assign
the Prime Lease to Assignee and agrees that all terms of the Prime Lease shall
be in full force and effect between Lessor and Assignee as if Lessor and
Assignee were the original parties to the Prime Lease and that such assignment
shall not violate the terms of the Prime Lease, will not create or cause the
Assignee to be liable for any rent in excess of $ per month during the Initial
Term or be considered a sublease under the terms of the Prime Lease or any
addenda thereto.
3. Release. Lessor, with the intention of binding itself and its
successors and assignees, expressly forever releases and discharges Lessee and
its successors and assigns from all claims, demands, actions, grievances,
controversies, contracts, promises, agreements, causes of action, in both law
and equity, judgments
38
and executions, damages of whatever nature, past or present, known and unknown,
that it ever had, or now has, known or unknown, or that anyone claiming through
or under Lessor may now have or claim to have, against Lessee which arise from
the Prime Lease, but no further or otherwise.
4. Reliance. Lessor understands that Assignee and Lessee are relying on
the information contained in this Instrument, and agrees that Assignee and
Lessee may rely on this information, for purposes of determining whether to
consummate their transaction. Further, Assignee's and Lessee's subsidiaries,
affiliates, legal representatives and successor and assigns may rely on the
contents of this Instrument. A facsimile of this instrument delivered to
Assignee by telecopier shall be deemed an original for all purposes.
5. Notice, Non-Disturbance. Assignee intends to grant a sub-leasehold
interest to Lessee pursuant to a sublease dated the ___ day of _____, ____ (the
"Sublease"). Lessor shall give notice to Lessee at the same time that Lessor
gives notice to Assignee of any default under the Prime Lease, and Lessor shall
accept a cure of any such default from Lessee on Assignee's behalf. In such
case, Lessee shall be entitled to reimbursement from Assignee of any amount paid
or obligation incurred in respect thereof. So long as the Lessee is not in
default under the Sublease beyond any applicable grace or cure period, Lessee
shall be permitted quiet enjoyment of the Premises under the Sublease
notwithstanding any termination or expiration of the Prime Lease and
notwithstanding any termination or expiration of the Prime Lease and, Lessor
agrees at the request of the Lessee to honor the terms and conditions of the
Sublease for the remainder of the term thereof and any renewal terms.. Lessee
agrees, at the request of Lessor to attorn to the Lessor upon the terms and
conditions of the Sublease for the remainder of the term thereof (whether
original or renewal) and any renewal terms, and that the Sublease shall continue
in full force and effect as if the Lessor were the sublandlord under the
Sublease notwithstanding the expiration or termination of the Prime Lease.
6. Notices. Any Notices to be received by Assignee, Lessee or Lessor
under the Prime Lease or this Estoppel Certificate shall be deemed properly
given if marked to Assignee, Lessee or Lessor with proper postage or sent via a
reputable overnight carrier to the following address:
TO ASSIGNEE: 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
TO LESSEE: Tritel Communications, Inc.
000 X. Xxxxx Xxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
39
TO LESSOR:
IN WITNESS WHEREOF, Lessor has executed this Instrument as of the date
set forth above.
LESSOR:
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
SPECTRASITE:
SpectraSite Communications, Inc.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
40
ATTACHMENT "II"
THIS INSTRUMENT PREPARED BY: SITE NAME: INDEXING INSTRUCTIONS
------------
SITE ID:
---------------------------- -------------- ---------------------
---------------------------- ---------------------
---------------------------- ---------------------
Memorandum of Assignment of Prime Lease
This memorandum evidences that an assignment was made and entered into by
written Assignment of Prime Lease (the "Assignment") dated ______________ 1999,
between SPECTRASITE COMMUNICATIONS, INC., a Delaware corporation ("SpectraSite")
and TRITEL COMMUNICATIONS, INC., a Delaware corporation("Tritel")..
Such Agreement provides in part that Tritel assigns to, and Tritel does hereby
assign to SpectraSite that certain Option and Lease Agreement or similar lease
agreement (the 'Lease) dated for the lease of real property (the "Property")
located in ____________ County, in the state of ____________, which Property is
more particularly described on Exhibit "A" attached hereto and made a part
hereof, a memorandum (the "Memorandum") of which lease is of record in
__________ in the ____________ office for recording real property records in the
____________ County of the state of __________ Tritel hereby assigns the Lease
and Memorandum of Lease to the SpectraSite pursuant to the terms of the
Assignment.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the day and
year first above written.
SPECTRASITE:
SPECTRASITE COMMUNICATIONS, INC.
By:
------------------------------------
Its:
-----------------------------------
Address:
-------------------------------
---------------------------------------
TRITEL:
TRITEL COMMUNICATIONS, INC.
By:
------------------------------------
Its:
-----------------------------------
Address:
-------------------------------
---------------------------------------
41
[ACKNOWLEDGEMENTS]
42
EXHIBIT "A"
REAL PROPERTY DESCRIPTION
43
ATTACHMENT "III"
ESTOPPEL CERTIFICATE
THIS INSTRUMENT Is given as of this ___ day of ______________, ______, by
_________________ ("Lessor") to SpectraSite Communications, Inc. ("Assignee").
RECITALS
A. Lessor entered into a Lease Agreement or similar agreement with
_______ (___) numbers of addenda attached thereto, (collectively, the "Prime
Lease") dated as of the _____day of ______, ______ with Tritel Communications,
Inc., a Delaware corporation ("Lessee").
B. Lessee desires to assign to Assignee its interest in the Prime
Lease.
C. Assignee seeks Lessor's acknowledgment, as of the date of execution
of this Instrument, of certain matters affecting the Prime Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, intending to be legally bound:
1. Lessor's Estoppel Certificate. Lessor hereby certifies, with the
understanding that Assignee is relying upon the statements made herein, the
following:
a. The Prime Lease constitutes the entire agreement between the parties
with respect to the Premises. The Prime Lease has not been amended and there are
no other agreements between Lessor and Lessee with respect to the property or
the easements which are described in the Prime Lease.
b. The Prime Lease is in full force and effect in accordance with its
terms. To the best of Lessor's knowledge, neither Lessee nor Lessor is in
default under any of the terms of the Prime Lease, and 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 Prime Lease.
c. All applicable Prime Lease fees and rent (if any) and other charges
and payments due Lessor from Lessee under the Prime 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).
2. Consent. Lessor hereby acknowledges the right of Lessee to assign
the Prime Lease to Assignee and agrees that all terms of the Prime Lease shall
be in full force and effect between Lessor and Assignee as if Lessor and
Assignee were the original parties to the Prime Lease and that such assignment
shall not violate the terms of the Prime Lease, will not create or cause the
Assignee to be liable for any rent in excess of $ per month during the Initial
Term or be considered a sublease under the terms of the Prime Lease or any
addenda thereto.
3. Release. Lessor, with the intention of binding itself and its
successors and assignees, expressly forever releases and discharges Lessee and
its successors and assigns from all claims, demands, actions, grievances,
controversies, contracts, promises, agreements, causes of action, in both law
and equity,
44
judgments and executions, damages of whatever nature, past or present, known and
unknown, that it ever had, or now has, known or unknown, or that anyone claiming
through or under Lessor may now have or claim to have, against Lessee which
arise from the Prime Lease, but no further or otherwise.
4. Reliance. Lessor understands that Assignee and Lessee are relying on
the information contained in this Instrument, and agrees that Assignee and
Lessee may rely on this information, for purposes of determining whether to
consummate their transaction. Further, Assignee's and Lessee's subsidiaries,
affiliates, legal representatives and successor and assigns may rely on the
contents of this Instrument. A facsimile of this instrument delivered to
Assignee by telecopier shall be deemed an original for all purposes.
5. Notice; Non-Disturbance. Assignee intends to grant a sub-leasehold
interest to Lessee pursuant to a sublease dated the _____ day of ____________,
____ (the "Sublease"). Lessor shall give notice to Lessee at the same time that
Lessor gives notice to Assignee of any default under the Prime Lease, and Lessor
shall accept a cure of any such default from Lessee on Assignee's behalf. In
such case, Lessee shall be entitled to reimbursement from Assignee of any amount
paid or obligation incurred in respect thereof. So long as the Lessee is not in
default under the Sublease beyond any applicable grace or cure period, Lessee
shall be permitted quiet enjoyment of the Premises under the Sublease
notwithstanding any termination or expiration of the Prime Lease and
notwithstanding any termination or expiration of the Prime Lease and, Lessor
agrees at the request of the Lessee to honor the terms and conditions of the
Sublease for the remainder of the term thereof and any renewal terms. Lessee
agrees, at the request of Lessor to attorn to the Lessor upon the terms and
conditions of the Sublease for the remainder of the term thereof (whether
original or renewal) and any renewal terms, and that the Sublease shall continue
in full force and effect as if the Lessor were the sublandlord under the
Sublease notwithstanding the expiration or termination of the Prime Lease.
6. Notices. Any Notices to be received by Assignee, Lessee or Lessor
under the Prime Lease or this Estoppel Certificate shall be deemed properly
given if marked to Assignee, Lessor or Lessee with proper postage or sent via a
reputable overnight carrier to the following address:
TO ASSIGNEE: 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
TO LESSEE: Tritel Communications, Inc.
000 X. Xxxxx Xxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
45
TO LESSOR:
-------------------------------
-------------------------------
-------------------------------
IN WITNESS WHEREOF, Lessor has executed this Instrument as of the date
set forth above.
LESSOR:
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
SPECTRASITE:
SPECTRASITE COMMUNICATIONS
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
46
ATTACHMENT IV
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ("SLA") is executed this ___ day of
___________, ___, by and between SPECTRASITE COMMUNICATIONS, INC.
("SpectraSite") and TRITEL COMMUNICATIONS, INC. ("Carrier" or "Tritel").
WHEREAS, on the ___ day of __________, __, SpectraSite and Carrier
entered into that certain Master Build To Suite and Lease Agreement ("Master
Lease") which provides for the execution of individual SLAs for each Site, as
those terms are defined in the Master Lease, owned by SpectraSite upon which
Tritel desires to mount certain antenna, structures and other equipment.
1. SITE. Subject to the terms of the Master Lease, SpectraSite hereby
leases and grants to Carrier and Carrier hereby leases from and accepts from
SpectraSite space to install, maintain, operate, upgrade and remove Carrier's
wireless communications equipment and appurtenances on the tower owned by
SpectraSite ("Tower Facilities"), including antennas and microwave dishes
between the heights of _________________ above ground level on the Tower
Facilities and which is located on certain real property leased by SpectraSite
more particularly described in Exhibit "A" attached hereto ("Property"); and to
install, maintain, operate and remove Carrier's compound and related devices
(including, but not limited to emergency generators, equipment shelters,
equipment cabinets, all necessary test equipment and any temporary construction
materials) owned by Carrier on a _____________ hundred (__)square foot portion
of the Property at a location to be agreed upon in writing between SpectraSite
and Carrier, which is shown as the cross hatched area shown on Exhibit "B".
SpectraSite has granted and hereby grants unto Tritel for the Initial Term and
any Renewal Term an easement for ingress, egress and utilities during the term
of the Master Lease over the property described in Exhibit "C" attached hereto
("Easement") (the space occupied by Carrier on the Property and the Tower, and
the Easement hereinafter shall be referred to collectively as the "Premises")
(The Tower, Property and Easement shall constitute and hereinafter be referred
to and known as the "Site"). The Site is more commonly known to SpectraSite as
the _____________ Site. The Site is more commonly known to Tritel as the
_____________ Site.
3. RENT AND COMMENCEMENT DATE. The Commencement Date of this SLA, and
the Rent payable hereunder are defined in Attachment VII to the Master Lease and
the term of this Site Lease shall be as set forth in 3.4 and 3.5 of the Master
Lease. Tritel and SpectraSite shall execute a letter agreement which shall be
attached to this SLA confirming the date which the parties understand to be the
Commencement Date for each SLA.
2. EQUIPMENT. A description of the equipment, antennae, mounting height
of the antenna and other personal property of Tritel which Tritel intends to
locate on the Site ("Tritel's Equipment") is described in the Collocation
Application which is attached hereto as Exhibit "D". Tritel will not install any
equipment on the Site which is not described in Exhibit "D" without
SpectraSite's prior, written consent, which consent shall not be unreasonably
withheld, delayed or conditioned. SpectraSite and Tritel acknowledge and agree
that so long as SpectraSite approves any substituted, additional or altered
equipment, which approval shall not be unreasonably withheld, delayed or
conditioned and any additional or substituted equipment does not increase the
wind load or structural burden upon the Tower Facilities, does not increase the
space upon the Tower Facilities or the ground space upon the Site, and does not
create any technical or radio frequency interference with any existing equipment
located upon the Tower Facilities at the time of the request for such
modification or substitution,
47
Tritel may substitute, add, alter, modify and replace Tritel's Equipment
described in Exhibit "D" upon the Tower Facilities.
3. PRIME LEASE. A copy of the Prime Lease for this Site is attached
hereto as Exhibit "E" and is incorporated by reference herein.
4. EFFECT OF AGREEMENT. SpectraSite and Tritel acknowledge that the
Master Lease is the controlling agreement between the parties with regard to
Tritel's lease of the Site. This SLA is intended to supplement the Master Lease
and fulfill the requirements of paragraph I of the Master Lease.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
SPECTRASITE:
SPECTRASITE COMMUNICATIONS, INC.
By:
---------------------------------
TRITEL:
TRITEL COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Title:
48
ACKNOWLEDGMENTS
49
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
50
EXHIBIT "B"
SURVEY OR MAP OF THE SITE WITH LOCATION OF TOWER AND
GROUND SPACE SHOWN AND GROUND SPACE CROSS-HATCHED
51
EXHIBIT "C"
LEGAL DESCRIPTION OF EASEMENTS
52
ATTACHMENT V
This Instrument Prepared By: Site Name: Site ID: Indexing Instructions
---- ----
---------------------------- ---------------------
---------------------------- ---------------------
---------------------------- ---------------------
MEMORANDUM OF SITE LEASE AGREEMENT
This memorandum evidences that a lease was and hereby is made and entered into
by written Site Lease Agreement dated ______________, 19__, between SPECTRASITE
COMMUNICATIONS, INC., a Delaware corporation ("SpectraSite") and TRITEL
COMMUNICATIONS, INC., a Delaware corporation ("Tritel").
Such Agreement provides in part that Tower Company leases to Carrier and Tower
Company does hereby lease to Carrier space upon a tower (which tower is located
as shown on Exhibit "B") (the "Tower") between the heights of ________ and
_______ above ground level, which Tower is located upon the real property
located at _______, City of _________, County of ________, State of _______,
which real property is described in EXHIBIT A attached hereto (the "Site" or the
"Property") and certain space (the "Ground Space") upon the Property which is
described on Exhibit "B" or which is shown as the cross-hatched area on a plat
or survey attached hereto as Exhibit "B" with runs for cable, wiring, conduit,
etc. to the Tower and the Ground Space and with a grant of and Tower Company
hereby grants a non-exclusive easement for unrestricted rights of access thereto
and to electric and telephone facilities which are described on Exhibit "A"
and/or shown on Exhibit "B" such lease and easement to be for a term of five (5)
years commencing on _____, 19__ which term is subject to four (4) additional
five (5) year extension periods by Carrier.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the day and
year first above written.
TRITEL:
Tritel Communications, Inc.
BY:
---------------------------------------------
NAME: Xxxxx X. Xxxxxxxx, Xx.
---------------------------------------------
TITLE: Exec. Vice President/Chief Operating Officer
---------------------------------------------
ADDRESS: X.X. Xxx 0000
---------------------------------------------
Xxxxxxxxx, XX 00000-0000
---------------------------------------------
PHONE NUMBER: 000-000-0000
---------------------------------------------
DATE:
---------------------------------------------
SPECTRASITE:
SpectraSite Communications, Inc.
BY:
---------------------------------------------
NAME:
---------------------------------------------
TITLE:
---------------------------------------------
ADDRESS:
---------------------------------------------
---------------------------------------------
PHONE NUMBER:
---------------------------------------------
TAX ID:
---------------------------------------------
DATE:
---------------------------------------------
53
EXHIBIT "A"
Property
Attached hereto Metes and Bound Description of the Real Property
54
EXHIBIT "B"
GROUND SPACE:
ATTACH HERETO THE SITE PLAN FOR THE SITE WITH THE GROUND SPACE CROSS HATCHED AND
THE TOWER IDENTIFIED.
55
ATTACHMENT VI
COLLOCATION APPLICATION
------------------------------------------------------------------------------------------------------------------------------------
RETURN THIS APPLICATION TO: (E-MAIL IS PREFERRED)
SpectraSite Communications, Inc. e-mail: XxxxxxxX@XxxxxxxXxxx.xxx
0000 Xxxxxxx Xxxxxxx, Xxxxx 000 OFFICE: (919) 468-0112
Xxxx, XX 00000 FAX: (000) 000-0000
Attn: Collection Management
------------------------------------------------------------------------------------------------------------------------------------
APPLICANT INFORMATION
Tower Owner: SpectraSite Communications Tenant Applicant:
Site Name Site Name:
Site Number: Site Number:
Date (to be filled in by SpectraSite): Contact Name:
Contact Number:
Contact Address:
Contact e-mail:
------------------------------------------------------------------------------------------------------------------------------------
SPECTRASITE TOWER INFORMATION
------------------------------------------------------------------------------------------------------------------------------------
Latitude: Existing Structure Type:
Longitude: Existing Structure Height:
Site Address:
------------------------------------------------------------------------------------------------------------------------------------
ANTENNAS
------------------------------------------------------------------------------------------------------------------------------------
VI V2 V3
Desired Rad Center (Feet AGL)
Antenna Quantity
Antenna Manufacturer
Antenna Model (Attach Spec Sheet)
Weight (per antenna)
Antenna Dimensions
ERP (xxxxx)
Antenna Gain
Orientation/Azimuth
Mechanical Tilt
Channels
Tower Mount Dimensions
Tower Mount Weight
Tower Mount Mounting Height
Transmit Frequency
Receive Frequency
Number of Coax Cables (PER ANTENNA)
Diameter of Coax Cables
RF Contact Name/Number
Type of Service (i.e., CELLULAR, CDMA, GSM, TDMA,
PAGING):
------------------------------------------------------------------------------------------------------------------------------------
GROUND SPACE REQUIREMENTS
------------------------------------------------------------------------------------------------------------------------------------
Cabinet Manufacturer/Model Shelter
Manufacturer
Equipment Pad Dimensions Shelter Dimensions
------------------------------------------------------------------------------------------------------------------------------------
POWER REQUIREMENTS
------------------------------------------------------------------------------------------------------------------------------------
AC Power Required Voltage and Total Amperage
------------------------------------------------------------------------------------------------------------------------------------
Construction Contact Name/ Number:
------------------------------------------------------------------------------------------------------------------------------------
58
ATTACHMENT VII
MARKET SPECIFIC TERMS
SEE SCHEDULES ATTACHED HERETO
SCHEDULE 1
MARKET SPECIFIC TERMS
TO ATTACHMENT VII OF MASTER LEASE BETWEEN
SPECTRASITE AND TRITEL
1. TRITEL MARKET: Knoxville Market - This Schedule shall apply to the Knoxville
Market only.
2. MINIMUM NUMBER OF SITES: -- Tritel shall and hereby grants to SpectraSite the
right to develop, construct and lease a minimum of twenty-five (25) Tower
Facilities in the Knoxville Market more particularly described in Exhibit A
attached hereto. In the event that Tritel does not require the construction of
25 new Tower Facilities in the Knoxville Market during the 1999 calendar year,
all of the new Tower Facilities which Tritel must construct and install in the
Knoxville Market in the 1999 calendar year, which Tritel intends to assign to a
third (3rd) party, shall be constructed, developed and owned by SpectraSite, and
Tritel shall grant SpectraSite the right to develop, construct and lease
additional sites in other Tritel Markets in addition to those sites set forth on
the other Schedules to Exhibit VII so that the cumulative minimum number of
sites set forth in Schedules 1 and 2 to Exhibit VII shall not be diminished.
3. PRE-DEVELOPMENT COSTS: (a) For each Tower Site for which SpectraSite has
performed Site Acquisition Services as defined in that certain Site Acquisition
Services Agreement (the "Site Acquisition Services Agreement") by and between
the parties dated the 28th day of July, 1998, and such Site Acquisition Services
commenced prior to or on January 31, 1999, SpectraSite shall reimburse Tritel
[CONFIDENTIAL TREATMENT REQUESTED] per site upon the receipt of a SLA executed
by Tritel. Such payment shall be made within fifteen (15) days of the date that
the Assignment is executed by both parties. Notwithstanding anything contained
in the Master Lease, such payment shall be the only payment or reimbursement
which SpectraSite makes to Tritel for reimbursement of Pre-Development costs for
any Tower Sites upon which Site Acquisition Services commenced prior to January
31, 1999, but no further or otherwise. Upon the execution of the Assignment of
the Prime Lease from Tritel to SpectraSite, SpectraSite shall assume all
responsibility for any Pre-Development Costs incurred after the date of the
Assignment, subject to the terms of the Master Lease. (b) For each Tower Site
for which SpectraSite has performed Site Acquisition Services which commenced
after January 31, 1999, the amount of the reimbursement for such Site
Acquisition Services shall be negotiated between the parties and shall be agreed
upon in an exhibit which shall be attached hereto and made a part hereof and
shall be incorporated into this Agreement as if originally executed and attached
herewith, and such agreement shall be effective upon the execution of the
exhibit by duly authorized representatives of SpectraSite and Tritel. The amount
of reimbursement for such Site Acquisition Services shall also be set forth in
the Notice from Tritel to SpectraSite pursuant to paragraph 1.1(b) to the Master
Lease and in the Acceptance of the Site by SpectraSite pursuant to paragraph
1.1(b) of the Master Lease.
4. SCHEDULE OF COMPLETION: SpectraSite shall deliver all Tower Sites fully
completed and ready for the installation of Tritel's Equipment, excepting those
Tower Sites delayed by Tritel actions or inaction's or those Tower Sites delayed
beyond SpectraSite's control, including but not limited to governmental
approvals, moratoria, FAA or force majeure according to the following schedule
which was mutually agreed upon between the parties at a meeting on April 12,
1999:
May 28, 1999 two (2) Tower Sites
June 15, 1999 five (5) Tower Sites
July 15, 1999 ten (10) Tower Sites
August 15, 1999 eight (8) Tower Sites
58
SpectraSite shall diligently exercise its best efforts to construct and deliver
all of the Tower Sites in the clusters which have been developed by Tritel for
the best system optimization.
5. RENT: (a) Initial Term. As consideration for the use and occupancy of the
Premises under any SLA during the Initial Term, Tritel shall pay SpectraSite or
such entity as SpectraSite may designate from time to time, on the first day of
each calendar month during the Initial Term, the sum of [CONFIDENTIAL TREATMENT
REQUESTED] per month. Rent shall be payable on the first day of each month in
advance to SpectraSite at SpectraSite's address as specified in Paragraph 4.5(t)
of the Master Lease. In the event that the Commencement Date is other than the
first day of a calendar month, Rent shall be prorated over the number of days
remaining in the month in which the SLA commenced and shall thereafter be paid
on the first day of each calendar month. SpectraSite and Tritel shall execute a
letter agreement to attach to each SLA to confirm the amount of the Rent.
(b) Renewal Terms. In the event that Tritel elects to renew an SLA as
provided in paragraph 3.5, Rent shall be increased by fifteen percent over the
Rent accruing under the immediately prior term of the SLA.
6. COMMENCEMENT DATE. The Initial Term of the SLA for any Tower Facility which
is completed prior to September 1, 1999 in the Knoxville Market shall commence
on the earlier of: (i) September 1, 1999; or (ii) 90 calendar days from the
acceptance of a Site by Tritel pursuant to Section 2.8 of this Agreement (the
"Launch Commencement Date"). The Initial Term of the SLA for any Tower Facility
which is completed on or after September 1, 1999 in the Knoxville Market shall
commence on the date on which Tritel accepts the Site pursuant to Section 2.8 of
this Agreement (the "Post Launch Commencement Date"), (the Launch Commencement
Date and the Post Launch Commencement Date are collectively referred to as the "
Commencement Date").
7. COMPLETION OF REAL ESTATE SERVICES ON NON-SPECTRASITE GREENFIELD SITES. Until
formal written notification from Tritel, SpectraSite shall continue to perform
fee based acquisition services on Greenfield sites in the Knoxville Market and
the Chattanooga Market not assigned to SpectraSite as a Tower Facility under
this Schedule, such services to be performed pursuant to the terms of the Site
Acquisition Services Agreement. Tritel shall elect to either continue the Site
Acquisition Services on the time and materials basis set out in the Site
Acquisition Services Agreement or to convert the Tower Sites at the individually
appropriate points, over to the milestone payment schedule that is attached
hereto as Exhibit "B" to this Schedule. The billing and expense portion of the
Site Acquisition Services Agreement will be altered and modified the day after
receipt of such written notification.
8. COLLOCATION ASSISTANCE. As further consideration for the agreement to grant
the right to construct, develop and lease the Tower Facilities as described
herein, SpectraSite agrees to provide its employee, Xxxxx Best, as collocation
coordinator for the coordination of all collocation sites in the Knoxville
Market and the Chattanooga Market, for a period of time not to exceed 90 days at
SpectraSite's actual cost for such employee. Such cost shall include salary,
taxes, benefits, etc. SpectraSite acknowledges and agrees that such employee
shall remain an employee of SpectraSite and that it shall be primarily
responsible for all obligations to such employee in connection therewith, and
that the employee shall have no claim against Tritel and that the employee is
not a third party beneficiary of this Agreement.
9. SCHEDULE. This Schedule shall be added to and modify the terms and conditions
of the Master Lease and hereby is incorporated into the terms of the Master
Lease. In the event that there is a conflict or contradiction
59
between the terms and conditions of the Master Lease and this Schedule, the
terms and conditions of this Schedule shall control.
IN WITNESS WHEREOF, SpectraSite and Tritel have signed this Schedule as
of the date and year first above written.
TRITEL: SPECTRASITE:
TRITEL COMMUNICATIONS, INC. SPECTRASITE COMMUNICATIONS, INC.
By: By:
------------------------------- -------------------------------
Xxxxx X. Xxxxxxxx, Xx. Name:
Executive Vice President/ -----------------------------
Chief Operating Officer Title:
----------------------------
60
EXHIBIT "A"
TO SCHEDULE 1 TO ATTACHMENT VII OF MASTER LEASE
BETWEEN SPECTRASITE AND TRITEL
Agreed Upon BTS Sites and Rebate for Tritel Knoxville
-----------------------------------------------------
Site Number Site Name AGREED UPON REBATE/
----------- --------- RENTAL ABATEMENT VALUE
Wise Hill [CONFIDENTIAL TREATMENT REQUESTED]
Westview [CONFIDENTIAL TREATMENT REQUESTED]
Park City [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxxx Lake [CONFIDENTIAL TREATMENT REQUESTED]
Oak Grove Heights [CONFIDENTIAL TREATMENT REQUESTED]
Copper Ridge [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxxx Road [CONFIDENTIAL TREATMENT REQUESTED]
Bright Hope Church [CONFIDENTIAL TREATMENT REQUESTED]
Rocky Hill [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxxx [CONFIDENTIAL TREATMENT REQUESTED]
Knob Creek [CONFIDENTIAL TREATMENT REQUESTED]
Seymour [CONFIDENTIAL TREATMENT REQUESTED]
Mill Creek [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxx Creek [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxx Creek [CONFIDENTIAL TREATMENT REQUESTED]
Hickory Valley [CONFIDENTIAL TREATMENT REQUESTED]
Limestone Creek [CONFIDENTIAL TREATMENT REQUESTED]
East Sevierville [CONFIDENTIAL TREATMENT REQUESTED]
South Clinton [CONFIDENTIAL TREATMENT REQUESTED]
State Road 168 [CONFIDENTIAL TREATMENT REQUESTED]
Ford [CONFIDENTIAL TREATMENT REQUESTED]
West Morristown [CONFIDENTIAL TREATMENT REQUESTED]
Tellico Parkway [CONFIDENTIAL TREATMENT REQUESTED]
Fox Hill [CONFIDENTIAL TREATMENT REQUESTED]
Union Grove [CONFIDENTIAL TREATMENT REQUESTED]
61
SCHEDULE 2 TO ATTACHMENT VII
OF MASTER LEASE BETWEEN SPECTRASITE AND TRITEL
MARKET SPECIFIC TERMS
1. TRITEL MARKET: Chattanooga Market - This Schedule shall apply to the
Chattanooga Market only.
2. MINIMUM NUMBER OF SITES: __ -- Tritel shall and hereby grants to SpectraSite
the right to develop, construct and lease a minimum of twenty-five (25) Tower
Facilities in the Chattanooga Market more particularly described in Exhibit A
attached hereto. The parties acknowledge and agree that upon the date of the
execution of this Schedule, Tritel and SpectraSite have only identified
seventeen (17) sites for the location of Tower Facilities in the Chattanooga
Market. In the event that Tritel does not require the construction of 25 new
Tower Facilities in the Chattanooga Market during the 1999 calendar year, all of
the new Tower Facilities which Tritel must construct and install in the
Chattanooga Market in the 1999 calendar year, which Tritel intends to assign to
a third (3rd) party, shall be constructed, developed and owned by SpectraSite,
and Tritel shall grant SpectraSite the right to develop, construct and lease
additional sites in other Tritel Markets in addition to those sites set forth on
the other Schedules to Exhibit VII so that the cumulative minimum number of
sites set forth in Schedules 1 and 2 to Exhibit VII shall not be diminished.
3. PRE-DEVELOPMENT COSTS: (a) For each Site identified on Exhibit A attached
hereto, SpectraSite shall reimburse Tritel for the Site Acquisition Services
completed for that Site according to the amounts set forth on Exhibit A. Such
payment shall be made within fifteen (15) days of the date that the Assignment
is executed by both parties. Notwithstanding anything contained in the Master
Lease, such payment shall be the only payment or reimbursement which SpectraSite
makes to Tritel for reimbursement of Pre-Development costs for the Sites
identified on Exhibit A. Upon the execution of the Assignment of the Prime Lease
from Tritel to SpectraSite, SpectraSite shall assume all responsibility for any
Pre-Development Costs incurred after the date of the Assignment, subject to the
terms of the Master Lease. (b) For each additional Tower Site which Tritel
grants SpectraSite the right to develop, construct and lease for which
SpectraSite has performed Site Acquisition Services, the amount of the
reimbursement for such Site Acquisition Services shall be negotiated between the
parties in accordance with the milestone price guide on Exhibit B attached
hereto and shall be agreed upon in an exhibit which shall be attached hereto and
made a part hereof and shall be incorporated into this Agreement as if
originally executed and attached herewith and such agreement shall be effective
upon the execution of the exhibit by duly authorized representatives of
SpectraSite and Tritel. The amount of reimbursement for such Site Acquisition
Services shall also be and shall be set forth in the Notice from Tritel to
SpectraSite pursuant to paragraph 1.1(b) to the Master Lease and in the
Acceptance of the Site by SpectraSite pursuant to paragraph 1.1(b) of the Master
Lease.
4. SCHEDULE OF COMPLETION: SpectraSite shall deliver all Tower Sites fully
completed and ready for the installation of Tritel's Equipment, excepting those
Tower Sites delayed by Tritel actions or inaction's or those Tower Sites delayed
beyond SpectraSite's control, including but not limited to governmental
approvals, moratoria, FAA or force majeure according to the following schedule
which was mutually agreed upon between the parties at a meeting on April 12,
1999:
June 15, 1999 five (5) Tower Sites
July 15, 1999 five (5) Tower Sites
August 15, 1999 three (3) Tower Sites
August 30, 1999 two (2) Tower Sites
September 15, 1999 three (3) Tower Sites
62
SpectraSite shall diligently exercise its best efforts to construct and deliver
all of the Tower Sites in the clusters which have been developed by Tritel for
the best system optimization.
5. RENT: (a) Initial Term. As consideration for the use and occupancy of the
Premises under any SLA during the Initial Term, Tritel shall pay SpectraSite or
such entity as SpectraSite may designate from time to time, on the first day of
each calendar month during the Initial Term, the sum of [CONFIDENTIAL TREATMENT
REQUESTED] per month. Rent shall be payable on the first day of each month in
advance to SpectraSite at SpectraSite's address as specified in Paragraph 4.5(t)
of the Master Lease. In the event that the Commencement Date is other than the
first day of a calendar month, Rent shall be prorated over the number of days
remaining in the month in which the SLA commenced and shall thereafter be paid
on the first day of each calendar month. SpectraSite and Tritel shall execute a
letter agreement to attach to each SLA to confirm the amount of the Rent.
(b) Renewal Terms. In the event that Tritel elects to renew an SLA as
provided in paragraph 3.5, Rent shall be increased by fifteen percent over the
Rent accruing under the immediately prior term of the SLA.
6. COMMENCEMENT DATE. The Initial Term of the SLA for any Tower Facility which
is completed prior to September 1, 1999 in the Chattanooga Market shall commence
on the earlier of: (i) September 1, 1999; or (ii) 90 calendar days from the
acceptance of a Site by Tritel pursuant to Section 2.8 of this Agreement (the
"Launch Commencement Date"). The Initial Term of the SLA for any Tower Facility
which is completed on or after September 1, 1999 in the Chattanooga Market shall
commence on the date on which Tritel accepts the Site pursuant to Section 2.8 of
this Agreement (the "Post Launch Commencement Date") (the Launch Commencement
Date and the Post Launch Commencement Date are collectively referred to as the
"Commencement Date").
7. COMPLETION OF REAL ESTATE SERVICES ON NON-SPECTRASITE GREENFIELD SITES. Until
formal written notification from Tritel, SpectraSite shall continue to perform
fee based acquisition services on Greenfield sites in the Knoxville Market and
the Chattanooga Market not assigned to SpectraSite as a Tower Facility under
this Schedule, such services to be performed pursuant to the terms of the Site
Acquisition Services Agreement. Tritel shall elect to either continue the Site
Acquisition Services on the time and materials basis set out in the Site
Acquisition Services Agreement or to convert the Tower Sites at the individually
appropriate points, over to the milestone payment schedule that is attached
hereto as Exhibit "A" to this Schedule. The billing and expense portion of the
Site Acquisition Services Agreement will be altered and modified the day after
receipt of such written notification.
8. SCHEDULE. This Schedule shall be added to and modify the terms and conditions
of the Master Lease and hereby is incorporated into the terms of the Master
Lease. In the event that there is a conflict or contradiction between the terms
and conditions of the Master Lease and this Schedule, the terms and conditions
of this Schedule shall control.
63
IN WITNESS WHEREOF, SpectraSite and Tritel have signed this Schedule as
of the date and year below.
TRITEL: SPECTRASITE:
TRITEL COMMUNICATIONS, INC. SPECTRASITE COMMUNICATIONS, INC.
By: By:
---------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxx Name:
Director of Site Acquisition --------------------------------
And Property Administration Title:
-------------------------------
64
EXHIBIT "A"
TO SCHEDULE 2 TO ATTACHMENT VII OF MASTER LEASE
BETWEEN SPECTRASITE AND TRITEL
Agreed Upon BTS Sites and Rebate for Tritel Chattanooga
-------------------------------------------------------
Site Number Site Name COMPLETION POINT Agreed Upon Rebate/
AS OF 2/25/99 Rental Abatement Value
076-003-00A Bushtown Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-007-00A X-Xxxxx Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-012-00A Xxxxxx Ridge Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-027-00A Sugartown Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-028-00A Ft Ogelthorpe Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-0300R1 Rock Spring Complete thru Milestone #1 [CONFIDENTIAL TREATMENT REQUESTED]
076-034-00X Slygo Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-035-00X Trenton Complete thru Milestone #1 [CONFIDENTIAL TREATMENT REQUESTED]
076-036-00X Union Complete thru Milestone #4 [CONFIDENTIAL TREATMENT REQUESTED]
076-037-00X New Hope Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-050-0R1 Sale Creek Complete thru Milestone #1 [CONFIDENTIAL TREATMENT REQUESTED]
076-051-00X Graysville Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-052-00X Sentinel Hts (Dayton) Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-053-00A Short Tail Springs Complete thru Milestone #1 [CONFIDENTIAL TREATMENT REQUESTED]
102-008-00A Cedar Ridge Complete thru Milestone #2 [CONFIDENTIAL TREATMENT REQUESTED]
102-010-00X Chattsworth East Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
000-000-000 Mt. Xxxxxx Complete thru Milestone #2 [CONFIDENTIAL TREATMENT REQUESTED]
-------------
Dayton Boulevard No Reimbursement
65
EXHIBIT "B"
MILESTONE PER SITE PRICING
FOR REBATE/RENTAL ABATEMENT ON BTS SITES AND FOR COMPLETION OF
CHATTANOOGA NON-BTS GREENFIELD SITES OR COLLOCATION SITES
REQUIRING SITE ACQUISITION SERVICES
MILESTONE FEE/Rebate
--------- ----------
1) DELIVERY OF SITE ID REPORTS TO TRITEL (UP TO 4 PER SEARCH RING) [CONFIDENTIAL
TREATMENT
REQUESTED]
2) DELIVERY OF SOR TO TRITEL ON PREFERRED SITE [CONFIDENTIAL
TREATMENT
REQUESTED]
3) DELIVERY OF LEASE TO TRITEL (EXECUTED BY LANDLORD) [CONFIDENTIAL
TREATMENT
REQUESTED]
4) ZONING COMPLETED OR STATEMENT OF NO ZONING REQUIRED** [CONFIDENTIAL
TREATMENT
REQUESTED]
5) NOTICE OF DELIVERED SITE* [CONFIDENTIAL
TREATMENT
REQUESTED]
* PAYMENT FOR NOTICE OF DELIVERED SITE IS NOT TO EXCEED 45 CALENDAR DAYS AFTER
THE LEASE IS EXECUTED IF NO ZONING, OR 10 DAYS AFTER ZONING IS APPROVED IF
ZONING IS REQUIRED.
** TRITEL IS RESPONSIBLE FOR LEGAL FEES IF SUCH REPRESENTATION IS REQUIRED AT
ZONING HEARINGS
NOTE: IN THE EVENT TRITEL ASSIGNS ONE OF THE NON-BTS SITES SUBJECT TO THE ABOVE
TO A BTS COMPANY OTHER THAN SPECTRASITE, SPECTRASITE SHALL BE ALLOWED TO
COMPLETE AND XXXX XXXXXX FOR THE THEN UNCOMPLETED MILESTONE.
66
ATTACHMENT "VIII"
NOTICE OF COMPLETION OF TOWER FACILITIES
Tritel
-----------------------------------
-----------------------------------
-----------------------------------
Re: Notice of Completion of Tower Facilities ("Notice") for
Site # _____ ("_________ Site")
Dear _____________:
On the ______ day of _________, ____ the Tower Facilities at the __________
Site were completed in accordance with the terms and conditions of the Master
Lease between SpectraSite and Tritel. Pursuant to Paragraph 2.8 of the Master
Lease, Tritel has a period of fifteen (15) days after the date of this Notice of
Completion to provide a Punch List of items to be completed by SpectraSite in
order to render the Tower Facilities completed in accordance with the Plans and
Specifications in the opinion of Tritel.
Sincerely,
-------------------------------
67
ATTACHMENT IX
____________, 19__
Re: Site Lease Agreement
Site:
Dear :
Tritel Communications, Inc. ("Tritel") and SpectraSite Communications, Inc.
(the "Tower Company") entered into a Site Lease Agreement for the
above-captioned site. The Site Lease Agreement provides that Tritel and
SpectraSite shall execute a letter agreement which shall be attached to the SLA
confirming the calendar date which the parties understand to be the Commencement
Date for each SLA.
Tritel and SpectraSite agree that the Commencement Date for the
above-referenced site is ____________.
By countersigning this letter, SpectraSite acknowledges and agrees to the
Commencement Date listed above for the Site. This letter shall constitute an
amendment to the Site Lease Agreement.
TRITEL COMMUNICATIONS, INC.
By:
--------------------------------
Its:
-------------------------------
Acknowledged and Agreed to this _ day of _______________, ___.
SPECTRAS1TE COMMUNICATIONS, INC.
By:
--------------------------------
Its:
-------------------------------
68
SCHEDULE 3 TO ATTACHMENT VII
OF MASTER LEASE BETWEEN SPECTRASITE AND TRITEL
MARKET SPECIFIC TERMS
1. TRITEL MARKET: Birmingham Market - This Schedule shall apply to the
Birmingham Market only.
2. NUMBER OF SITES: -Tritel shall and hereby grants to SpectraSite the right to
develop, construct and lease ten (10) Tower Facilities in the Birmingham Market
more particularly described in Exhibit A attached hereto.
3. PRE-DEVELOPMENT COSTS: (a) For each Site identified on Exhibit A attached
hereto, SpectraSite shall reimburse Tritel for the Site Acquisition Services
completed for that Site according to the amounts set forth on Exhibit A. Such
payment shall be made within fifteen (15) days of the date that the Assignment
is executed by both parties. Notwithstanding anything contained in the Master
Lease, such payment shall be the only payment or reimbursement which SpectraSite
makes to Tritel for reimbursement of Pre-Development costs for the Sites
identified on Exhibit A. Upon the execution of the Assignment of the Prime Lease
from Tritel to SpectraSite, SpectraSite shall assume all responsibility for any
Pre-Development Costs incurred after the date of the Assignment, subject to the
terms of the Master Lease. (b) For each additional Tower Site which Tritel
grants SpectraSite the right to develop, construct and lease for which
SpectraSite has performed Site Acquisition Services, the amount of the
reimbursement for such Site Acquisition Services shall be negotiated between the
parties in accordance with the milestone price guide on Exhibit B attached
hereto and shall be agreed upon in an exhibit which shall be attached hereto and
made a part hereof and shall be incorporated into this Agreement as if
originally executed and attached herewith and such agreement shall be effective
upon the execution of the exhibit by duly authorized representatives of
SpectraSite and Tritel. The amount of reimbursement for such Site Acquisition
Services shall also be and shall be set forth in the Notice from Tritel to
SpectraSite pursuant to paragraph 1.1(b) to the Master Lease and in the
Acceptance of the Site by SpectraSite pursuant to paragraph 1.1(b) of the Master
Lease.
4. SCHEDULE OF COMPLETION: SpectraSite shall deliver all Tower Sites fully
completed and ready for the installation of Tritel's Equipment, excepting those
Tower Sites delayed by Tritel actions or inaction's or those Tower Sites delayed
beyond SpectraSite's control, including but not limited to governmental
approvals, moratoria, FAA or force majeure according to the following schedule:
This portion of said Schedule shall be completed no later than August 31,
1999.
SpectraSite shall diligently exercise its best efforts to construct and deliver
all of the Tower Sites in the clusters which have been developed by Tritel for
the best system optimization.
5. RENT:
(a) Initial Term. As consideration for the use and occupancy of the
Premises under any SLA during the Initial Term, Tritel shall pay SpectraSite or
such entity as SpectraSite may designate from time to time, on the first day of
each calendar month during the Initial Term, the sum of [CONFIDENTIAL TREATMENT
REQUESTED] per month. Rent shall be payable on the first day of each month in
advance to SpectraSite at SpectraSite's address as specified in Paragraph 4.5(t)
of the Master Lease. In the event that the Commencement Date is other than the
first day of a calendar month, Rent shall be prorated over the number of days
remaining in the month in which the SLA commenced and shall thereafter be paid
on the first day of each calendar month. SpectraSite and Tritel shall execute a
letter agreement to attach to each SLA to confirm the amount of the Rent.
69
(b) Renewal Terms. In the event that Tritel elects to renew an SLA as
provided in paragraph 3.5, Rent shall be increased by fifteen percent over the
Rent accruing under the immediately prior term of the SLA.
6. COMMENCEMENT DATE. The Initial Term of the SLA for any Tower Facility shall
commence on the date on which Tritel accepts the Site pursuant to Section 2.8 of
this Agreement (the "Commencement Date").
7. COMPLETION OF REAL ESTATE SERVICES ON NON-SPECTRASITE GREENFIELD SITES. Until
formal written notification from Tritel, SpectraSite shall continue to perform
fee based acquisition services on sites in the Birmingham not assigned to
SpectraSite as a Tower Facility under this Schedule, such services to be
performed pursuant to the terms of the Site Acquisition Services Agreement.
8. SCHEDULE. This Schedule shall be added to and modify the terms and conditions
of the Master Lease and hereby is incorporated into the terms of the Master
Lease. In the event that there is a conflict or contradiction between the terms
and conditions of the Master Lease and this Schedule, the terms and conditions
of this Schedule shall control.
IN WITNESS WHEREOF, SpectraSite and Tritel have signed this Schedule as of
the date and year below.
TRITEL: SPECTRASITE:
TRITEL COMMUNICATIONS, INC. SPECTRASITE COMMUNICATIONS, INC.
By: By:
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxxx Name:
Director of Site Acquisition ------------------------------
And Property Administration Title:
-----------------------------
Date: 8/3/99 Date:
------------------------------ ------------------------------
70
EXHIBIT "A"
TO SCHEDULE 3 TO ATTACHMENT VII OF MASTER LEASE
BETWEEN SPECTRASITE AND TRITEL
Agreed Upon BTS Sites and Rebate for Tritel
-------------------------------------------
COMPLETION POINT AGREED UPON REBATE/
Site Number Site Name AS OF 7/29/99 RENTAL ABATEMENT VALUE
----------- ---------
044-023-R10 Xxxxxx Hollow In Redesign [CONFIDENTIAL TREATMENT REQUESTED]
000-000-000 Wooddale Milestone 3 [CONFIDENTIAL TREATMENT REQUESTED]
044-054-R10 Xxxxxx Milestone 3 [CONFIDENTIAL TREATMENT REQUESTED]
044-068-R10 USX Milestone 2 [CONFIDENTIAL TREATMENT REQUESTED]
044-069-R10 Hueytown Milestone 3 [CONFIDENTIAL TREATMENT REQUESTED]
000-000-000 Collegeville Milestone 2 [CONFIDENTIAL TREATMENT REQUESTED]
044-135-R10 Longview Milestone 3 [CONFIDENTIAL TREATMENT REQUESTED]
044-139-R10 Alabaster Milestone 3 [CONFIDENTIAL TREATMENT REQUESTED]
*Tritel to complete &
assign lease
-----------
71
EXHIBIT "B"
MILESTONE PER SITE PRICING
FOR REBATE/RENTAL ABATEMENT ON BTS SITES
MILESTONE FEE/Rebate
--------- ----------
1) DELIVERY OF SITE ID REPORTS TO TRITEL (UP TO 4 PER SEARCH RING) [CONFIDENTIAL
TREATMENT
REQUESTED]
2) DELIVERY OF SOR TO TRITEL ON PREFERRED SITE [CONFIDENTIAL
TREATMENT
REQUESTED]
3) DELIVERY OF LEASE TO TRITEL (EXECUTED BY LANDLORD) [CONFIDENTIAL
TREATMENT
REQUESTED]
4) ZONING COMPLETED OR STATEMENT OF NO ZONING REQUIRED* [CONFIDENTIAL
TREATMENT
REQUESTED]
5) NOTICE OF DELIVERED SITE [CONFIDENTIAL
TREATMENT
REQUESTED]
** TRITEL IS RESPONSIBLE FOR LEGAL FEES IF SUCH REPRESENTATION IS REQUIRED AT
ZONING HEARINGS
72
ATTACHMENT "VIII"
NOTICE OF COMPLETION OF TOWER FACILITIES
Tritel
-----------------------------
-----------------------------
----------------------------- ----------
Re: Notice of Completion of Tower Facilities ("Notice") for
Site # _____ ("_________ Site")
Dear _____________:
On the ______ day of _________, ____ the Tower Facilities at the ________ Site
were completed in accordance with the terms and conditions of the Master Lease
between SpectraSite and Tritel. Pursuant to Paragraph 2.8 of the Master Lease,
Tritel has a period of fifteen (15) days after the date of this Notice of
Completion to provide a Punch List of items to be completed by SpectraSite in
order to render the Tower Facilities completed in accordance with the Plans and
Specifications in the opinion of Tritel.
Sincerely,
---------------------------------
73
ATTACHMENT B
AGREED UPON BTS SITES AND REBATE FOR TRITEL CHATTANOOGA
SITE NUMBER SITE NAME COMPLETION POINT AGREED UPON REBATE/
AS OF 2/25/99 RENTAL ABATEMENT VALUE
076-003-00A Bushtown Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-007-00A X-Xxxxx Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-012-00A Xxxxxx Ridge Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-027-00A Sugartown Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-028-00A Ft Ogelthorpe Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-0300R1 Rock Spring Complete thru Milestone #1 [CONFIDENTIAL TREATMENT REQUESTED]
076-034-00X Slygo Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-035-00X Trenton Complete thru Milestone #1 [CONFIDENTIAL TREATMENT REQUESTED]
076-036-00X Union Complete thru Milestone #4 [CONFIDENTIAL TREATMENT REQUESTED]
076-037-00X New Hope Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-050-0R1 Sale Creek Complete thru Milestone #1 [CONFIDENTIAL TREATMENT REQUESTED]
076-051-00X Graysville Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-052-00X Sentinel Hts (Dayton) Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
076-053-00A Short Tail Springs Complete thru Milestone #1 [CONFIDENTIAL TREATMENT REQUESTED]
102-008-00A Cedar Ridge Complete thru Milestone #2 [CONFIDENTIAL TREATMENT REQUESTED]
102-010-00X Chattsworth East Complete thru Milestone #3 [CONFIDENTIAL TREATMENT REQUESTED]
000-000-000 Mt. Xxxxxx Complete thru Milestone #2 [CONFIDENTIAL TREATMENT REQUESTED]
-------------
Dayton Boulevard No Reimbursement
74
ATTACHMENT A
AGREED UPON BTS SITES AND REBATE FOR TRITEL KNOXVILLE
SITE NUMBER SITE NAME AGREED UPON REBATE/
RENTAL ABATEMENT VALUE
Wise Hill [CONFIDENTIAL TREATMENT REQUESTED]
Westview [CONFIDENTIAL TREATMENT REQUESTED]
Park City [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxxx Lake [CONFIDENTIAL TREATMENT REQUESTED]
Oak Grove Heights [CONFIDENTIAL TREATMENT REQUESTED]
Copper Ridge [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxxx Road [CONFIDENTIAL TREATMENT REQUESTED]
Bright Hope Church [CONFIDENTIAL TREATMENT REQUESTED]
Rocky Hill [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxxx [CONFIDENTIAL TREATMENT REQUESTED]
Knob Creek [CONFIDENTIAL TREATMENT REQUESTED]
Seymour [CONFIDENTIAL TREATMENT REQUESTED]
Mill Creek [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxx Creek [CONFIDENTIAL TREATMENT REQUESTED]
Xxxxxx Creek [CONFIDENTIAL TREATMENT REQUESTED]
Hickory Valley [CONFIDENTIAL TREATMENT REQUESTED]
Limestone Creek [CONFIDENTIAL TREATMENT REQUESTED]
East Sevierville [CONFIDENTIAL TREATMENT REQUESTED]
South Clinton [CONFIDENTIAL TREATMENT REQUESTED]
State Road 168 [CONFIDENTIAL TREATMENT REQUESTED]
Ford [CONFIDENTIAL TREATMENT REQUESTED]
West Morristown [CONFIDENTIAL TREATMENT REQUESTED]
Tellico Parkway [CONFIDENTIAL TREATMENT REQUESTED]
Fox Hill [CONFIDENTIAL TREATMENT REQUESTED]
Union Grove [CONFIDENTIAL TREATMENT REQUESTED]
75
