EXHIBIT 10.5
MASTER SITE AGREEMENT
---------------------
THIS MASTER SITE AGREEMENT (hereinafter referred to as this "MSA"), is made
as of the 6th day of August, 1998 (the "MSA Commencement Date"), by and between
BELLSOUTH CAROLINAS PCS, L.P., a Delaware limited partnership, BELLSOUTH
PERSONAL COMMUNICATIONS, INC., a Delaware corporation, each doing business as
BELLSOUTH MOBILITY DCS, and their respective BellSouth Affiliates, successors
and assigns (hereinafter collectively referred to as "BellSouth") and AIRGATE
WIRELESS, L.L.C., a Delaware limited liability company, and its successors and
permitted assigns (hereinafter referred to as the "User").
WHEREAS, BellSouth is the owner of communications towers located on
property either owned, leased or licensed by BellSouth (individually, a "Tower",
collectively, "Towers");
WHEREAS, User is a provider of certain wireless digital communications
services in the United States as such services are more particularly defined in
Section 3 hereinbelow ("User's Wireless Business");
WHEREAS, BellSouth and User desire to enter into this MSA which will
establish the general terms and conditions whereby User will lease, sublease,
license or sublicense, as applicable, from BellSouth space on one or more of
BellSouth's Towers and ground space on BellSouth's land (real property owned,
leased or licensed by BellSouth with respect to each Site (as defined below)
hereinafter the "Property") for the construction of an equipment shelter or
cabinet(s) for the placement of User's communications equipment for operation of
User's Wireless Business;
WHEREAS, BellSouth and User will enter into a Site Agreement in form and
substance substantially similar to Schedule "I" attached hereto and by reference
------------
made a part hereof (individually, a "Site Agreement"; collectively, "Site
Agreements") which will establish the terms for use of a specific Site.
NOW, THEREFORE, for valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
1. MSA. This MSA sets forth the general terms and conditions upon which
---
all Sites, as defined below, shall be leased,, subleased, licensed or
sublicensed to User. From time to time during the term hereof, User and
BellSouth may, execute Site Agreements in the form attached hereto as Schedule
--------
"I" and by reference made a part hereof. Each Site Agreement shall identify a
----
particular Site made subject to this MSA and more fully set forth specific terms
particular to that Site. In the event of a conflict or inconsistency between
the terms of this MSA and a Site Agreement, the terms of the Site Agreement
shall govern and control for that Site.
2. Demise.
-------
(a) Leasing Program. Subject to the following terms and conditions,
---------------
BellSouth hereby agrees to lease, sublease, license or sublicense, as
applicable, to User certain space on one or more of BellSouth's Towers together
with sufficient space on the Property with easements for access and utilities.
User's use of the Tower and Property shall be limited to the Tower and Property,
together with easements for access and utilities described and depicted in
Exhibit "A" to
-----------
each Site Agreement (the Property, the space upon BellSouth's Tower utilized by
User and any easements providing access and utilities to the Property are
sometimes referred to herein individually as a "Site" or collectively as
"Sites"). With respect to any Sites which User may desire to lease, sublease,
license or sublicense, as applicable, User shall give written notice to
BellSouth at the address provided in Section 27 hereof of such desire. After
receipt of written notice from User of such desire to add a Site to this MSA,
BellSouth shall provide User with a Site Application to be completed by User.
Upon receipt by BellSouth of the completed Site Application, together with any
application fee required by BellSouth, BellSouth shall evaluate the feasibility
of utilization of each Site requested by User to be added to this MSA. Except in
extraordinary circumstances, as determined by BellSouth in its discretion, the
application fee generally will not exceed $ [ * ] per Site. The Site Application
fee, once received by BellSouth shall in all instances under this MSA be applied
toward the first base rent payments due under the applicable Site Agreement.
BellSouth will use reasonable best efforts to respond promptly to initial
requests for a Site Application and to Site Applications submitted by User.
BellSouth may decline additional Sites for any reason whatsoever. If BellSouth
desires to lease or to license any Site to User, BellSouth shall deliver to User
three (3) completed, unexecuted counterparts of a Site Agreement pertaining to
such Site. User shall have a period of fifteen (15) business days from User's
receipt of such Site Agreement to execute and return same to BellSouth. If User
fails to return all counterparts of the Site Agreement, properly executed and
unmodified by User, together with the Site Cost Reimbursement Amount (as defined
herein) set forth in the Site Agreement, within such fifteen (15) day period
such Site Agreement shall immediately be deemed null and void. Upon receipt of
the properly executed, unmodified counterparts of the Site Agreement, BellSouth
will execute same and return a fully executed original of the Site Agreement to
User, whereupon the Site Agreement shall be deemed to be added to this MSA.
(b) Right of Refusal Sites. In addition to the standard leasing
----------------------
program described above, User shall have a right of first refusal on certain
BellSouth Towers as described herein (each a "First Right Site"). Certain
payment obligations and rights of User differ with respect to the First Right
Sites. Except for differences specifically noted in this MSA with respect to
the First Right Sites, the First Right Sites shall for all purposes be treated
as Sites governed by this MSA. Within [ * ] business days of the execution of
this MSA, User shall submit to BellSouth a list of approximately [ * ] of
BellSouth's Towers on which User may wish to locate. The list shall include the
applicable Site number of the BellSouth Tower, as well as User's contemplated
antenna type and mounting height for each First Right Site. Until [ * ], User
shall then have a first right of refusal to locate on the listed Towers at the
specified heights and with the specified equipment shown on User's list (subject
to existing users, including other users with applications submitted to
BellSouth). In the event that a third-party potential user submits a site
application or similar request to BellSouth for one of the [ * ] Towers,
BellSouth shall notify User in writing. The form of notice shall be
substantially as shown on Schedule III attached hereto. User shall then have
------------
[ * ] business days to return to BellSouth a countersigned copy of the notice,
an executed Site Application, together with the Site Application fee and first
annual installment of rent. The Site Application fee shall be credited toward
the rental payment, and thus reduce by [ * ] the payment of the first annual
installment of rent. The return of this material by User shall constitute User's
binding agreement to execute a Site Agreement for that particular Site. In the
event that User does not forward an executed Site Application, together with the
above referenced related fees, to
---------------
[ * ] Portions of the specified exhibit has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
2
BellSouth within said [ * ] business days, User shall be presumed to have
declined use of that particular Tower and BellSouth will be free to proceed with
the third -party user. In the event that SprintCom (as defined herein) has
previously delivered a Site Application for a particular Site listed on the
[ * ] Towers referenced above, and a third-party potential user submits an
application for that Tower, BellSouth shall notify User. User shall have [ * ]
business days to notify BellSouth in writing that it intends to accept such Site
(in which case the prior SprintCom Site Application shall be accepted as User's
Site Application, except that information contained in User's initial list of
[ * ] potential First Right Sites shall be deemed to amend information to the
extent inconsistent with SprintCom's Site Application) and User shall submit the
first years annual rent and the Site Application fee (if not previously paid).
(c) Expense Amount. At the time User submits the above-referenced
--------------
list of [ * ] potential Tower Sites, User shall submit to BellSouth a fee of
[ * ] Dollars [ * ] to be used in accordance with this paragraph (the "Expense
Amount"). The Expense Amount shall be used by BellSouth to reimburse BellSouth
for all fees of GlobalComm, Arcadis, or other agents or consultants of BellSouth
used in the preparation and processing of Tower Sites. BellSouth shall
reasonably document amounts of the Expense Amount used by BellSouth for such
reimbursement. In the event that the Expense Amount is depleted such that it is
less than [ * ] Dollars [ * ], the User shall replenish the Expense Amount by
not less than [ * ] Dollars [ * ]. In the event that following User's
commencement or declining of the [ * ] Towers referenced above, there are funds
remaining in the Expense Amount held by BellSouth, the excess amount shall be
applied to the next-due rents under Sites leased by User, in a manner determined
by BellSouth.
(d) Submission of Site Application in Grows of Forty. User shall make
------------------------------------------------
all reasonable efforts to submit Site Applications for Sites (other than First
Right Sites submitted following notification of a potential third-party user as
described in Section 2(b) above) in groups of approximately [ * ] Site
Applications at a time, in order to make the processing of Site Agreements as
easy and efficient as possible.
(e) Minimum Site Application Requirement. User agrees that it shall
------------------------------------
submit not less than [ * ] Site Applications, together with the Site Application
fee, not later than ninety (90) days from the date of this MSA. In the event
that User fails to submit at least [ * ] Site Applications, together with
related fees, not later than ninety (90) days from the date of this MSA,
BellSouth may, at its option, terminate this MSA and retain any unspent amount
of the Expense Amount.
3. Permitted Use. Subject to the terms of this MSA and the Site
-------------
Agreement for each respective Site, User shall be permitted the non-exclusive
right to install, maintain, operate, service, and subject to BellSouth's prior
written approval, which approval shall not be unreasonably withheld, conditioned
or delayed, modify and replace its communication equipment as more particularly
described on the User's Co-Location Application attached as Exhibit "C" to each
-----------
Site Agreement (the "Facilities") at such Site, including without limitation,
BellSouth's Tower, which Facilities shall be utilized for the transmission and
reception of wireless voice and data communications using digital communications
services technology. These shall be the only
-------------
[ * ] Portions of the specified exhibit has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
3
permissible uses under this MSA and each Site Agreement, and User specifically
acknowledges that microwave facilities are not permitted uses.
4. Master Lease/License. A Site Agreement shall be subject and
--------------------
subordinate to all of the terms and conditions of the agreement pursuant to
which BellSouth has rights in and to the Property (the "Master Lease/License"),
which are incorporated in the Site Agreement by reference and a copy of which
has been or will be delivered to User and attached to the Site Agreement as
Exhibit "A-I" subject to redaction of the financial terms set forth therein or
-------------
as otherwise required by confidentiality and non-disclosure provisions contained
therein. If applicable, BellSouth agrees to provide User with copies of all
amendments to, extensions of and renewal notices given pursuant to the Master
Lease/License, subject to redaction of the financial terms set forth therein or
as otherwise required by confidentiality and non-disclosure provisions contained
therein. BellSouth represents to User that as of the Execution Date of a Site
Agreement neither BellSouth nor BellSouth's Landlord ("Master Landlord") is in
default under the Master Lease/License.
5. Conditions Precedent.
--------------------
(a) Conditions Precedent Based On Consent of Master Landlord. If
--------------------------------------------------------
BellSouth is party to a Master Lease/License for a Site, the Site Agreement for
such Site shall be contingent upon BellSouth and/or User, as applicable, being
able to satisfy one (1) of the following conditions precedent within thirty (30)
days of the Execution Date of the Site Agreement, if required by the Master
Lease/License, in BellSouth's sole reasonable opinion.
(i) Notice to Master Landlord of [Sublease/License]. If notice
-----------------------------------------------
to the Master Landlord of the sublease, license or sublicense, is required by
the Master Lease/License, in BellSouth's sole reasonable opinion, BellSouth
shall so notify the Master Landlord and shall deliver, upon User's request,
evidence of such notification; or
(ii) Consent of Master Landlord to [Sublease/License] of Tower
---------------------------------------------------------
Space and Ground Space. BellSouth or User, at BellSouth's option, will obtain
----------------------
the written consent of Master Landlord to BellSouth's [sublease, license,
sublicense] to User of Tower Space and Ground Space (as such terms are defined
in the Site Agreement), if required by the Master Lease/License, in BellSouth's
sole reasonable opinion;
(iii) Consent of Master Landlord to [Sublease/License] of
---------------------------------------------------
Tower Space and Master Landlord Leasing Ground Space to User. BellSouth or User,
------------------------------------------------------------
at BellSouth's option, will obtain (aa) the written consent of Master Landlord
to BellSouth's [sublease, license, sublicense) to User of Tower Space, if
required by the Master Lease/License, in BellSouth's sole reasonable opinion,
and (bb) a written ground lease from the Master Landlord providing for the
[lease/license) of ground space from the Master Landlord to User for User's
Ground Facilities (as defined in the Site Agreement), upon terms and conditions
acceptable to User in User's sole and absolute discretion.
BellSouth and User shall cooperate with one another in efforts to obtain the
consent of the Master Landlord pursuant to Sections 5(a)(ii) and 5(a)(iii)
hereof.
4
If BellSouth or User is able to obtain the written consent of the Master
Landlord to BellSouth's sublease, license or sublicense to User of Tower Space
and Ground Space pursuant to Section 5(a)(ii), (aa) BellSouth or User shall
deliver to the other a copy of such written consent, (bb) the condition
precedent to BellSouth leasing Tower Space and Ground Space to User shall be
deemed satisfied, and (cc) the term "Leased Space" as used in the Site Agreement
shall mean Tower Space and Ground Space and the term "Facilities" as used in the
Site Agreement shall mean the Tower Facilities and Ground Facilities.
If BellSouth or User is able to obtain the written consent of Master Landlord to
BellSouth's lease to User of Tower Space (but not to BellSouth's sublease,
license or sublicense to User of the Ground Space) and BellSouth or User is able
to obtain a ground lease from the Master Landlord pursuant to Section 5(a)(iii)
hereof, (aa) BellSouth or User shall deliver to the other a copy of such written
consent, (bb) User shall deliver to BellSouth a copy of the certification as to
the ground lease or license from the Master Landlord to User in substantially
the form of Exhibit D attached to the Site Agreement, (cc) the condition
---------
precedent set forth in Section 5(a)(ii) hereof shall not have been satisfied but
the condition precedent set forth in Section 5(a)(iii) hereof shall be deemed
satisfied, and (dd) the term "Leased Space" as used in the Site Agreement shall
mean Tower Space only and the term "Facilities" as used in the Site Agreement
shall mean Tower Facilities only. If BellSouth elects to obtain the ground
lease described in Section 5(a)(iii), then such ground lease shall be subject to
User's prior approval and User shall be responsible for the payment of
BellSouth's reasonable, documented costs in obtaining the ground lease and of
all rents and other sums due under the ground lease, as and when such sums are
due and payable.
If BellSouth or User is unable to satisfy the condition set forth in Section
5(a)(ii) or BellSouth or User is unable to satisfy the conditions set forth in
Section 5(a)(iii) within thirty (30) days of the Execution Date of the Site
Agreement, the Site Agreement shall automatically terminate and become null and
void, unless extended in writing by mutual consent of BellSouth and User. Upon
such termination, neither BellSouth nor User shall have any obligations to the
other except for any indemnity obligations, including without limitation,
environmental indemnity and tax obligations, arising prior to the date of
termination.
(b) Conditions Precedent to Site Commencement Date. Each Site
----------------------------------------------
Agreement is further contingent upon User being able to satisfy the following
conditions prior to the Site Commencement Date, as defined in the Site
Agreement:
(i) Approvals. User obtaining, after the Execution Date of the
---------
Site Agreement, all certificates, permits, licenses and other approvals that may
be required by any federal, state or local authorities (the "Approvals") to
permit User's intended use of the Leased Space. BellSouth shall cooperate, at
User's cost, with User in its effort to obtain such Approvals. In the event that
User notifies BellSouth that (aa) any application for an Approval is rejected,
(bb) an Approval is canceled, expires, lapses, or is otherwise withdrawn or
terminated for any reason whatsoever prior to installation of the Facilities by
User, or (cc) any application for Approval is not likely to be obtained or
approved, as determined in User's sole discretion, the Approvals shall be deemed
to not have been obtained by User.
5
(ii) Radio Frequency Propagation Test. User determining, in
--------------------------------
User's sole discretion, that the results of any radio frequency propagation
tests are satisfactory, such that User is able to use the Leased Space for
User's intended use.
(iii) Utilities and Access. User determining, in User's sole,
--------------------
reasonable discretion, that (aa) telephone and electric utilities are available
at the Leased Space or Tower of sufficient capacity to accommodate User's
Facilities and (bb) ingress and egress is available to and from the Leased Space
and to and from a publicly dedicated road.
(iv) Tower Capacity. User determining in User's sole,
--------------
reasonable discretion based on a Tower analysis satisfying the requirements of
Section 10 (ii) hereof that the Tower is of sufficient capacity to accommodate
the load requirements of User's Facilities.
(v) Title. User determining in User's sole discretion that the
-----
status of title as to the Leased Space and easements granted herein are
acceptable to User.
(vi) Hazardous Substances. User determining in User's sole
--------------------
discretion that the Leased Space and Property are free of all Hazardous
Substances, as defined in Section 15 (b) hereof.
If any one (1) of the conditions set forth above will not be satisfied as
of the Site Commencement Date of the Site Agreement, User shall have the right
to terminate the Site Agreement by giving BellSouth written notice thereof. If
User elects to terminate the Site Agreement, the Site Agreement shall terminate
as of the date BellSouth receives such notice from User and neither BellSouth
nor User shall have any further obligation under this Site Agreement except for
any indemnity obligations and User's obligation to remove its Facilities from
the Property.
(c) Site Cost Reimbursement Amount. User shall pay a one-time site
------------------------------
cost reimbursement amount ("Site Cost Reimbursement Amount") to BellSouth, paid
by User to BellSouth not later than (a) the execution and delivery of the Site
Agreement with respect to such Site for all Sites other than First Right Sites,
and (b) the Site Commencement Date with respect to such Site for all First Right
Sites. Except in certain circumstances, as set out herein, the Site Cost
Reimbursement Amount generally will not exceed [ * ] Dollars [ * ] per Site.
BellSouth and User acknowledge and agree that the Site Cost Reimbursement Amount
reflects an equitable sharing of the capital costs incurred by BellSouth with
respect to the construction of the Tower and the ability of User to locate its
Facilities thereon. Consequently, the Site Cost Reimbursement Amount is
independent of and in addition to, and not in substitution or reduction of, all
or any part of the Base Rent specified in such Site Agreement, or the fair
market value of the rent applicable to such Site. The preceding notwithstanding,
in the event that User has not on or before [ * ] (a) executed and returned
[ * ] or more Site Agreements, and (b) paid (i) any applicable Site Cost
Reimbursement Amount for each of said [ * ] or more Sites (for Sites other than
First Right Sites), or (ii) the first annual installment of base rent on each of
said [ * ] or more Sites (for First Right Sites), BellSouth may look back to all
existing Sites as well as those Sites for which Site Agreements have been
executed but the Site Commencement Date has not yet occurred and charge
---------------
[ * ] Portions of the specified exhibit has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
6
User an additional Site Cost Reimbursement Amount of [ * ] Dollars [ * ] per
Site regardless of whether any Site Cost Reimbursement Amount had previously
been paid on that Site. The preceding notwithstanding, in the event that User
has (i) executed and returned [ * ] or more Site Agreements, and (b) paid (i)
any applicable Site Cost Reimbursement Amount for each of said [ * ] or more
Sites (for Sites other than First Right Sites), or (ii) the first annual
installment of base rent on each of said [ * ] or more Sites (for First Right
Sites), the Site Cost Reimbursement Amount to be paid to BellSouth, for every
Site in excess of [ * ] shall be [ * ] Dollars [ * ]. In the event that User
finds it necessary to structurally enhance or otherwise to upgrade the Tower
prior to locating on the Tower, any such enhancement or upgrades shall be
subject to BellSouth's prior written approval and the costs which User incurs in
performing said upgrade shall be applied and credited to the Site Cost
Reimbursement Amount for that particular Site.
Beginning January 1, 1999, the Site Cost Reimbursement Amount for each new
Site shall then be based upon the amount for the Site Cost Reimbursement Amount
referenced above on the [ * ] deadline. In the event User has submitted less
than [ * ] Site Applications, together with related fees, by [ * ], the Site
Cost Reimbursement Amount shall remain at [ * ] Dollars [ * ] per Site until
User has submitted [ * ] Site Applications, with related fees, at which point
future Site Cost Reimbursement Amounts shall be [ * ] Dollars [ * ] per Site. In
the event User has submitted between [ * ] and [ * ] Site Applications, together
with related fees, by [ * ], the Site Cost Reimbursement Amount shall remain at
[ * ] Dollars [ * ] per Site until User has submitted [ * ] Site Applications,
with related fees, at which point future Site Cost Reimbursement Amounts shall
be [ * ] Dollars [ * ] per Site. In the event User has submitted [ * ] or more
Site Applications, together with related fees, by [ * ], the Site Cost
Reimbursement Amount shall remain at [ * ] Dollars [ * ] per Site.
6. Term.
----
(a) MSA Term. The MSA term shall begin on the MSA Commencement Date
--------
and shall continue until midnight of the tenth (10th) anniversary of the MSA
Commencement Date, unless terminated earlier in accordance with the terms hereof
(the "Term").
(b) Site Agreement Term and Renewal. The initial term of each Site
-------------------------------
Agreement and any renewal terms are provided in each Site Agreement.
Notwithstanding the expiration of this MSA, the terms and conditions of this MSA
shall continue to apply to each Site Agreement until the Site Agreement Term,
including any renewal terms expires or terminates. User shall have the right to
terminate a Site Agreement for a First Right Site if the conditions precedent in
Section 5 are not satisfied through no fault of User.
7. Rent.
----
(a) Base Rent. During the Initial Term of any Site Agreement, User
---------
shall pay annual rent in equal annual installments in the amount set forth in
each Site Agreement, (a) in advance on or before the Site Commencement Date and
then on each anniversary date of the Site
---------------
[ * ] Portions of the specified exhibit has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
7
Commencement Date for Sites other than First Right Sites and (b) in advance on
or before the delivery of the fully executed Site Agreement and then on each
anniversary date of the Site Commencement Date for First Right Sites. If the
Site Agreement for a First Right Site is terminated pursuant to Section 6(B),
the annual rent that User had paid shall be credited towards annual rent for a
separate Tower Site leased by User hereunder. Rent shall be payable by check,
and checks shall be made payable to the order of the BellSouth entity specified
in the applicable Site Agreement and shall be mailed to the address designated
in the applicable Site Agreement. In the event that the initial base rent is
paid by User but the Site Agreement does not commence because of a failure of a
condition precedent described in Section 5 or such other reason as described
herein, through no fault of User, BellSouth shall refund the initial annual
payment of base rent.
(b) Taxes.
-----
(i) Property Taxes. User shall be responsible for the reporting
--------------
and payment when due of any tax directly related to User's ownership or
operation of the Facilities and such reporting and payment shall be made
directly to the appropriate tax authorities.
(ii) Sales Taxes. BellSouth shall be responsible for billing,
-----------
collecting, reporting, and remitting sales taxes directly related to rent
payments received pursuant to this MSA and any Site Agreement, if any. User
shall be responsible for reimbursing BellSouth for all sales taxes billed
related to rent payments received pursuant to this MSA and any Site Agreement,
such reimbursement to be due and payable within thirty (30) days of BellSouth's
delivery to User of a written invoice and copies of paid tax receipts specifying
the payments made by BellSouth.
(c) Site Agreement Renewal Terms. If and when one or more of the Site
----------------------------
Agreement Renewal Terms (as defined in the applicable Site Agreement) are
exercised by the User, upon the commencement of each Renewal Term, the annual
rent for each Renewal Term shall increase by the percent set forth in such Site
Agreement over the annual rent for the immediately preceding term.
(d) Additional Facilities. If, after the installation of the
---------------------
Facilities, User, with the, prior written approval of BellSouth as required by
Section 10 hereof, modifies the Facilities by adding additional equipment to the
Tower which materially increases the size or structural or windload on the Tower
or is in a different location on the Tower than the Facilities such that
additional rent is payable pursuant to Section 10 (vi) hereof, BellSouth and
User acknowledge that the rent for the Site shall be increased by an amount set
forth in the Site Agreement for each piece of additional equipment. If the Site
Agreement is silent on rent for additional equipment, BellSouth and User
acknowledge that the rent for the Site shall be increased by a mutually agreed
upon amount. In the event BellSouth and User cannot agree upon the increased
rent, the increase in rent shall be the fair market rental value for the
additional equipment placed on the Tower, which shall be determined by BellSouth
and User each designating, within five (5) days of the dispute, an independent
MAI appraiser with demonstrated experience appraising similar property and
telecommunication uses and shall be the average of the two appraisals prepared
by the appraisers. Each party shall pay the fees of its appraiser.
8. BellSouth to Locate on User's Towers. As additional consideration for
------------------------------------
BellSouth's agreement to lease, sublease, license or sublicense, as applicable,
the Site to User, User hereby agrees
8
to lease, sublease, license or sublicense, as applicable, to BellSouth space on
User's tower and ground space adjacent to such tower for the construction and
placement of an equipment shelter or cabinet (such tower and ground space
collectively referred to as a "Reciprocal Site") and shall be evidenced by a
site agreement and master site agreement, in substantially the same form as the
Site Agreement for BellSouth's Tower and Property and this MSA. In the event
User refuses to lease, sublease, license or sublicense, as applicable, a
Reciprocal Site to BellSouth, for reasons unrelated to User's capacity, zoning,
permits, licenses and other required approvals, or environmental issues with
respect to such Reciprocal Site, BellSouth may elect to terminate any existing
Site Agreement with respect to a Site in the same geographic market as the
proposed Reciprocal Site refused by User in accordance with the provisions set
forth in Section 20(b) hereof.
9. Relocation of Facilities.
------------------------
(a) With respect to any Site, BellSouth reserves the right to change
the location of User's Facilities upon sixty (60) days written notice to User to
accommodate the communications equipment (including a change in frequency) of
BellSouth. User shall relocate or remove the Facilities, at BellSouth's
expense, within sixty (60) days of receipt of any such notice by User; provided,
however, if the relocated space is unacceptable to User, in User's reasonable
discretion, User shall have the right to terminate the Site Agreement upon
written notice to BellSouth, which termination shall be effective the earlier of
(i) the date set forth in User's termination notice, or (ii) two hundred forty
(240) days from User's receipt of BellSouth's relocation notice. Upon such
termination, the parties to the Site Agreement shall be released from all
duties, obligations, liabilities and responsibilities under the Site Agreement
except for any indemnity obligations, including without limitation,
environmental indemnity and tax obligations, and User's obligation to remove the
Facilities from the Property. In the event BellSouth needs additional capacity
at a Site for its equipment and there is no space on the Tower in which to
relocate User's Facilities, upon two hundred and forty (240) days notice,
BellSouth may terminate a Site Agreement, and thereafter the Site Agreement
shall be of no further force and effect, and except for any indemnity
obligations, including without limitation, environmental indemnity and tax
obligations, and User's obligation to remove the Facilities from the Property,
and BellSouth's obligation to reimburse User for the book value (to be
determined. at the date of termination of the Site Agreement) of any structural
enhancements made by User to such Site, the parties hereto shall be released
from all duties, obligations, liabilities and responsibilities under the Site
Agreement.
(b) In the event of a termination under this Section 9 within the
Initial Term of the terminated Site Agreement, BellSouth shall also reimburse
User a prorata portion of the Site Cost Reimbursement Amount applicable to such
Site Agreement based on a five-year proration of the full Site Cost
Reimbursement Amount. The amount reimbursed by BellSouth shall be equal to the
prorata portion of the Site Cost Reimbursement Amount from the date of
termination to the expiration of the Initial Term. BellSouth shall deliver such
reimbursement to User within thirty (30) days of the termination date of the
Site Agreement.
10. Installation, Modification and Relocation.
-----------------------------------------
During the term of the Site Agreement, including any renewal terms, User
shall have the right, at User's expense, to install, and with BellSouth's prior
written approval, which approval shall
9
not be unreasonably withheld, delayed or denied, relocate and modify the
Facilities on the Site. User's installation, maintenance, relocation,
modification, and removal shall be in compliance with the following
requirements:
(i) Facilities. With regard to a modification or relocation of
----------
the Facilities, User shall provide BellSouth with an updated Exhibit "C" listing
-----------
all communications equipment to be located on the Site.
(ii) Tower Analysis. User shall submit to BellSouth a
--------------
completedTower analysis, prepared by licensed structural engineer approved
by BellSouth (a) describing any and all installations, modifications, or
relocations, as the case may be, of the Facilities on the Tower, (b) including
information demonstrating continued compliance with the Tower manufacturer's
warranty requirements, if delivered to User, current EIA/TIA standards, other
legal requirements for the Tower, and any other information reasonably requested
by BellSouth and (c) demonstrating that the installation, modification, or
relocation, as the case may be, does not exceed the load capacity of the Tower.
The Tower analysis shall be based on all Facilities listed on Exhibit "C "
------------
regardless of whether User does not intend to initially install all
Tower Facilities. If the Tower is a monopole, User, at User's cost, shall be
responsible for the installation of any platforms and cutting of portals
required to install User's Tower Facilities; provided, however, User shall not
cut any portal in the Tower if the cutting of such portal would adversely affect
the manufacturer's warranty on the Tower, if any, or the integrity of the Tower.
If the Tower is structurally inadequate to accommodate User's proposed
installation, modification or relocation, User, subject to BellSouth's consent,
which consent shall not be unreasonably withheld or delayed, shall have the
right to structurally enhance the Tower to accommodate User's proposed
installation, modification or relocation of User's Tower Facilities, provided
User complies with the, following additional requirements:
(1) Plans and Specifications for Structural Enhancement. User
---------------------------------------------------
shall submit to BellSouth all plans and specifications for structurally
enhancing the Tower, the proposed architect, engineer and/or contractor involved
in the structural enhancement, and a structural analysis demonstrating that the
Tower, as structurally enhanced, will accommodate all equipment located on the
Tower at the time of the structural enhancement and the proposed installation,
modification, or relocation of User's Tower Facilities, as the case may be, all
of which shall be approved by BellSouth, which approval shall not be
unreasonably withheld, conditioned or delayed.
(2) Payment of Costs. User shall pay all costs incurred in
----------------
structurally enhancing the Tower including, without limitation, all material
costs, all architectural, engineering and contracting fees, all certificate,
permit, license and approval fees, and all actual, reasonable costs incurred by
BellSouth to review the plans and specifications and structural analysis.
(3) Ownership of Structural Enhancements. Upon completion of and
------------------------------------
payment by User for the structural enhancements, such structural enhancements
shall become the property of BellSouth, and upon request, User shall promptly
provide to BellSouth any bills of sale or documentation evidencing BellSouth's
ownership of said enhancements.
(iii) Insurance. User shall provide BellSouth with insurance
---------
certificates for each Site evidencing that the insurance required by Section 17
of this MSA is in full force and effect
10
including, without limitation, worker's compensation insurance and the insurance
required of User's contractors and subcontractors.
(iv) Compliance with Laws. User's installation, modification or
--------------------
replacement of the Facilities on the Site and structural enhancement of the
Tower, if any, shall be in compliance with all applicable laws, regulations and
requirements of any federal, state or local authority, including without
limitation, OSHA work practice standards for performing said work. BellSouth,
at no cost to BellSouth, agrees to cooperate with User to obtain such
compliance.
(v) Availability of Space. With regard to the relocation of the
---------------------
Facilities, space on the Tower must be available at the levels, and/or space on
the ground must be available at the locations, to which User desires to relocate
and, if consent of the Master Landlord is required to relocate the Ground
Facilities, then such consent must be obtained prior to relocation.
(vi) Additional Rent. User shall pay BellSouth additional rent, in an
---------------
amount determined in accordance with the provisions of Section 7(d) hereof.
(vii) Plans and Specifications; Contractor. User shall submit to
------------------------------------
BellSouth (i) the plans and specifications, a detailed site plan and any other
construction documents setting forth the proposed construction, installation and
other work to be performed on the Site and Tower and (ii) the names of the
proposed contractors and subcontractors performing any such construction,
installation or other work, all of which shall be approved by BellSouth, such
approval not to be unreasonably withheld, conditioned or delayed. Following the
completion of any installation, modification or relocation, User shall provide
to BellSouth, at User's expense, updated, as-built drawings, initialed by User,
documenting all installed Facilities on the Site and conforming to the plans and
specifications, site plan, and any other construction documents approved by
BellSouth. The as-built drawings shall include an as-built survey locating the
Site to a monument or the Tower (the "As-Built Survey"). Upon receipt and
provided the As-Built Survey conforms to the plans and specifications, site plan
and any other construction documents approved by BellSouth, BellSouth shall
initial the As-Built Survey.
(viii) Liens. User shall keep the Site, Tower, Property and
-----
Facilities free from any liens arising from any work performed, materials
furnished or obligations incurred by or at the request of User in accordance
with the provisions of Section 16 (c) hereof, with the sole exception of any
liens with respect to equipment financing obtained by User for such Facilities
provided that such equipment financing liens do not encumber, attach to or
affect, in any manner, BellSouth's or the Master Landlord's right, title or
interest in and to all or any part of the Towers or the Property.
(ix) Pre-construction Meeting; Other Construction Meetings. Prior to
-----------------------------------------------------
commencing any installation and/or construction, a duly authorized
representative of User shall meet with a duly authorized representative of
BellSouth at the Tower site to mutually approve the construction methods and
procedures, such approval not to be unreasonably withheld, conditioned or
delayed by either party. BellSouth and User agree to cooperate with one another
in scheduling such pre-construction meeting. In addition, BellSouth and User
will meet during and upon substantial completion of construction to mutually
approve grounding and punch-list items, respectively, and BellSouth and User
agree to cooperate with one another in scheduling such meetings.
11
11. Ingress and Egress.
------------------
(a) Upon the Execution Date of a Site Agreement, BellSouth hereby
grants to User, as well as User's contractors, subcontractors, agents,
affiliates, or employees, subject to the limitations set forth herein or in the
applicable Site Agreement, (i) the non-exclusive right to use the Tower, at
locations mutually agreed upon by User and BellSouth, for the term hereof for
ingress, egress, and access to the Tower Space adequate to service the Tower
Facilities and (ii) if the term "Leased Space" as used in the Site Agreement
includes Ground Space, a non-exclusive easement for the term hereof, for
ingress, egress, and access to the Leased Space, on a twenty-four (24) hours per
day, seven (7) days per week basis, across (aa) the Property in locations
mutually agreed upon by BellSouth and User and (bb) if the Property is leased or
licensed by BellSouth, across the property of the Master Landlord to the extent
and in the locations of the Master Landlord-granted ingress, egress and access
easements to BellSouth in the Master Lease/License. User or User's qualified,
insured contractors under User's direct supervision, as well as SprintCom, Inc.,
a Kansas corporation ("SprintCom") shall have access to the Tower upon twenty-
four (24) hours notice to BellSouth, which access shall be subject to the
accompaniment, at BellSouth's option, of BellSouth's field personnel to provide
an escort and/or supervision, and User shall reimburse BellSouth for BellSouth's
actual, reasonable costs related thereto within thirty (30) days of BellSouth's
delivery to User of a written invoice for such costs. The foregoing
notwithstanding, User and SprintCom shall have access to the Leased Space and
User's Facilities immediately and without notice in the event of an emergency,
and User shall notify BellSouth as soon as practicable of User's access
(SprintCom's) during such emergency. Other security measures required for a
particular Site may be set forth in the Site Agreement. User shall be
responsible to ensure that User's contractors, subcontractors, agents,
affiliates, employees, as well as SprintCom, are adequately insured prior to
gaining access to any Site. Without in any way limiting the scope of Section
18, User shall indemnify, protect and hold harmless BellSouth for any loss,
claim, or damages resulting from access to any Site permitted in this paragraph.
(b) Prior to the Execution Date of a Site Agreement, User may have
access to a Property and the Tower situated thereon only upon the execution and
delivery by BellSouth and User of an entry and testing agreement in form and
substance substantially similar to Schedule "II" attached hereto and by
-------------
reference made a part hereof (an "Entry and Testing Agreement") which will
establish the terms under which User may access the Property and Tower for the
"Permitted Activities," as defined in the applicable Entry and Testing
Agreement.
12. Utilities, Cable Runs. Upon execution of a Site Agreement, BellSouth
---------------------
hereby grants to User the non-exclusive right to use the Tower for the term
hereof to place any cable runs on the Tower, at locations mutually agreed upon
in writing by BellSouth and User, in order to service or operate the Facilities,
subject to BellSouth's prior written approval of the design and installation
method and procedures, such approval not to be unreasonably withheld,
conditioned or delayed. If the term "Leased Space" as used in the Site
Agreement includes the Ground Space, upon execution of the Site Agreement,
BellSouth hereby grants to User a non-exclusive easement for the term hereof to
place any utilities or cable runs on or bring utilities across the Property and
if the Property is leased or licensed by BellSouth, the property of the Master
Landlord to the extent and in the locations the Master Landlord granted utility
and cable run easements. User shall pay the cost of all utility service
necessary to install, maintain and operate the Facilities. Where practicable,
User shall
12
install a separate meter for User's use. If installation of a meter is not
practicable, the parties shall prorate such charges based on approximate actual
use within thirty (30) days of receipt by BellSouth of any invoice from an
applicable utility company. User shall obtain and pay the cost of telephone
connections. Installation of telephone service shall be in compliance with the
procedures for installation and maintenance of Facilities set forth herein.
13. User's Covenants. User covenants that from the Execution Date of a
----------------
Site Agreement, that the Facilities, and all installation, operation,
modification, relocation and maintenance associated therewith, will:
(a) In no way damage BellSouth's Tower, Property, any other structure
or accessories thereto, any Prior User's, as defined below, equipment or
facilities or any Subsequent User's, as defined below, equipment or facilities,
normal wear and tear excepted. If damage, other than normal wear and tear,
occurs and such damage is caused by User, or User's employees, agents,
contractors, or subcontractors, then User shall be liable for repair or
reimbursement of repair for said damages;
(b) Not interfere with BellSouth's operation on the Tower or the
operations of any Prior User (as defined herein). For purposes hereof, a "Prior
User" shall mean any other user of the Tower that has submitted to BellSouth a
site application in good faith prior to the submission of User's Site
Application for such Tower, which site application serves as the basis for a
written agreement for the use of the Tower by such user. In the event BellSouth
determines, in its sole discretion based on standard and accepted engineering
practices, that User's Facilities are interfering with the operation of
BellSouth's or a Prior User's equipment, authorized frequency spectrum or signal
strength, User shall, within forty-eight (48) hours of notification, take all
steps necessary to eliminate the interference, with the exception of ceasing
User's operations. If User cannot eliminate or resolve such interference within
the forty-eight (48) hour period, BellSouth shall have the right to require that
User turn off its Facilities and only turn on its Facilities during off-peak
hours specified by BellSouth in order to test whether such interference
continues or it has been satisfactorily eliminated. In the event that User is
unable to resolve or eliminate, to the satisfaction of BellSouth, such
interference within thirty (30) days from the initial notification of such
interference, User will immediately remove or cease operations of the
objectionable Facilities and BellSouth shall have the right to terminate the
applicable Site Agreement. User shall not on any Site interfere with
BellSouth's use of the Site, the provision of services to BellSouth's customers,
or the use of the Site by other Prior Users. Such interference shall be deemed
a material breach of the Site Agreement.
(c) Not interfere with the maintenance of BellSouth's Tower and the
Tower lighting system;
(d) Keep the Facilities in a state of repair acceptable to BellSouth
in BellSouth's reasonable discretion;
(e) Identify the Facilities with metal tags fastened securely to its
bracket on the Tower and to each transmission line;
13
(f) Comply with all applicable rules and regulations of the Federal
Communications Commission ("FCC") and all federal, state and local laws
governing use of the Facilities on the Site;
(g) Comply with all applicable laws and ordinances and promptly
discharge or bond off any lien for labor or material within thirty (30) days of
filing same;
(h) Within thirty (30) days after the expiration or termination of a
Site Agreement, remove all Facilities from the Property and restore the Tower
and the Site to its original condition, normal wear and tear excepted. In the
event User has not removed the Facilities at the time of expiration or
termination of the Site Agreement, User shall pay rent at the then existing
monthly rate or on the existing monthly pro-rata basis if based upon a longer
payment term until such time as the removal of the Facilities is completed. In
the event User does not remove its Facilities within thirty (30) days after the
expiration or termination of the Site Agreement, BellSouth shall have the right
to remove and store the Facilities, at User's sole expense, and User shall
reimburse BellSouth for such expenses upon demand. If BellSouth removes the
Facilities, BellSouth shall not be responsible for any damage to the Facilities
during the removal and storage thereof unless caused by the gross negligence of
BellSouth. Notwithstanding the foregoing, except as may be required under any
lease or license agreement pursuant to which BellSouth has rights in and to the
Property, User shall not be required to remove any concrete pads upon which
User's equipment shelters or cabinets may have been located upon the expiration
or termination of a Site Agreement;
(i) Upon the completion of the initial installation of the Facilities
on the Site, within thirty (30) days of the completion of the relocation of the
Facilities or installation of additional Facilities on the Site and, for any
year in which User has performed a site audit on the Site or the Facilities or
User's operations at the Site have changed or been modified, by December 1 of
each year throughout the term of the Site Agreement, User shall provide
BellSouth with the number of batteries, battery model numbers, battery
manufacturers, the number of cells in each battery and the amount of sulfuric
acid in User's batteries on the Site in order for BellSouth or if, the property
is leased or licensed by BellSouth, the Master Landlord, to file such
information with the Environmental Protection Agency ("EPA") and any state and
local authorities as required by applicable law. Further, within thirty (30)
days of User's receipt of a written request from BellSouth, User will provide
BellSouth with any other information and copies of documents relating to the
Facilities located on the Site which BellSouth or Master Landlord may be
required to file with the FCC, EPA or any other governmental agencies. User
agrees to indemnify and hold BellSouth harmless from any liabilities resulting
from any inaccuracies in such information or documentation delivered by User to
BellSouth or User's failure to provide BellSouth with such information or
documentation in accordance with the provisions of this Section 13(i);
(j) Be coordinated through BellSouth and User shall cooperate with
BellSouth.
(k) It is recognized that certain construction, such as the erection
of an antenna support structure, can have an effect on a given AM Signal Array
within certain parameters. This issue is addressed in Part 22 of the FCC Rules
and Regulations. A statement of this policy regarding structures erected or
modified by Commission Licensees in the vicinity of broadcast AM Stations is
found in the FCC Report No. CL-90-40, "Re-Publication of Standard Broadcast Re-
Radiation and Tower Construction Authorized Under Part 22 of the Rules." This
policy states that "Licensees and
14
Permitees planning to construct or modify a tower within 2 miles of a
directional AM array or within .5 miles of a non-directional AM tower should
take certain precautions..." to protect the array of said AM Station(s).
BellSouth has constructed its Towers in compliance with the rules and
regulations of the FCC. By User's collocation on any BellSouth Tower, User
accepts full responsibility (including financial responsibility) to take any and
all measures to comply with the FCC mandate as it pertains to modifications of
existing towers. After this mandate has been satisfied, all documentation to
substantiate compliance will be forwarded to BellSouth for records maintenance.
In the event that the applicable Tower at any Site was fitted with a
detuning apparatus to protect the array of a given AM Station, User will be
responsible for following the procedure set forth below to ensure that the Tower
remains in compliance:
Prior to actual collocation on the existing BellSouth Tower, a certified
letter will be sent from User to the AM station(s) in question advising
said station(s) of the intent to collocate on the BellSouth existing Tower.
This document will reference that BellSouth has detuned the structure with
the installation of a detuning apparatus; furthermore, the Tower will not
be increasing in electrical height and therefore this collocation will
cause no further perturbation to the AM Signal. A copy of this letter will
be furnished to BellSouth for record purposes. After the collocation has
been completed, User will ensure the proper working condition of the
detuning apparatus by retaining the appropriate BellSouth detuning
consultant to take proximity measurements of the Tower to adjust said
apparatus to include the new antenna. This course of action is necessary
because the detuning apparatus will need to be rendered inert during the
actual installation of any additional antennas to the structure. Any costs
involved in following this procedure will be the responsibility of User.
If, due to User's collocation, it becomes necessary to modify the actual
height of the Tower, it will be the responsibility of User to retain a detuning
consultant and perform a partial proof of performance report and/or
install/modify detuning apparatus to ensure the integrity of a given AM Signal.
14. BellSouth's Covenants. BellSouth covenants that during the term of a
---------------------
Site Agreement it shall:
(a) Maintain the Tower and surrounding area in a safe condition;
(b) Except as otherwise set forth in this MSA, take no action which
would adversely affect the User's proposed use of the Site;
(c) Upon User's payment of rent and performance of its covenants, but
subject to the terms of any Master Lease/License pursuant to which BellSouth has
rights in and to the Property, and subject to any prior lien or encumbrance on
the Property, ensure User's quiet use and enjoyment of the Site;
15
(d) Comply with all applicable rules and regulations of the FCC, the
FAA, and all federal, state and local laws governing the Tower and Property;
(e) Not permit any Subsequent User (as defined herein) to interfere
with the operation of User's equipment, authorized frequency spectrum, signal
strength or Facilities. For purposes hereof, a "Subsequent User" shall mean any
other user of the Tower that submits to BellSouth a site application for the use
of such Tower after the submission of User's Site Application for such Tower.
In the event BellSouth determines, in its sole discretion based on standard and
accepted engineering practices, that the Subsequent User is interfering with the
operation of User's equipment, authorized frequency spectrum, signal strength or
Facilities, BellSouth shall, within forty-eight (48) hours of notification, take
all steps reasonably necessary to eliminate the interference, with the exception
of ceasing the Subsequent User's operations. If the Subsequent User cannot
eliminate or resolve such interference within the forty-eight (48) hour period,
BellSouth shall take all steps reasonably necessary to require that the
Subsequent User turn off its facilities and only turn on its facilities during
off-peak hours specified by BellSouth in order to test whether such interference
continues or it has been satisfactorily eliminated. In the event that the
Subsequent User is unable to resolve or eliminate, to the satisfaction of
BellSouth, such interference within thirty (30) days from the initial
notification of such interference, the Subsequent User will immediately remove
or cease operations of the objectionable facilities. Notwithstanding the
foregoing, if the Subsequent User is a governmental entity, BellSouth shall have
the right to give the governmental entity five (5) business days notice prior to
BellSouth being required to take any actions required by this Section 14(e) to
cure such interference. BellSouth shall give such governmental entity written
notice of the interference within two (2) business days of BellSouth's
determination that such action is reasonably necessary. BellSouth's notice to
the governmental entity shall be deemed given on the day it is delivered by hand
or on the day it is deposited with an overnight courier or the United States
mail;
(f) Not permit any Prior User or Subsequent User to damage User's
Facilities or the Site, normal wear and tear excepted. If damage by BellSouth,
a Prior User, or Subsequent User, other than normal wear and tear, occurs to
User's Facilities or the Site, then BellSouth, such Prior User, or Subsequent
User, shall be liable for repair or reimbursement of repair for such damages
caused by such party;
(g) Use reasonable efforts not to violate or breach any term of the
Master Lease/License giving the Master Landlord the right, with the passage of
time and/or giving of notice, to terminate the Master Lease/License; deliver to
User copies of every notice of default, non-renewal or non-conformance received
from Master Landlord immediately upon receipt thereof by BellSouth, and User
shall have the right, but not the obligation, to cure any such defaults of
BellSouth within the periods afforded BellSouth under the Master Lease;
(h) Provide the Master Landlord with the information necessary to
enable the Master Landlord to comply with the reporting requirements of the EPA
or any other governmental agency; provided, however, BellSouth shall have no
obligation to provide the Master Landlord with information regarding the User's
Facilities if User has not provided BellSouth with such information in
accordance with the provisions of Section 13(i) hereof.
16
15. Compliance with Laws.
--------------------
(a) FCC and FAA Compliance. BellSouth acknowledges that it is aware
----------------------
of its obligations under Section 303 of the Communications Act of 1934 (47
U.S.C. 303), as amended, to maintain the painting and illumination of Towers as
prescribed by the FCC. BellSouth further acknowledges that it is aware that it
is subject to forfeitures assessed by the FCC for violations of such rules and
requirements. BellSouth further acknowledges that it, and not User, shall be
responsible for compliance with all Tower or building marking and lighting
requirements which may be required by the Federal Aviation Administration
("FAA") or the FCC. BellSouth shall indemnify and hold harmless User from any
fines or other liabilities caused by BellSouth's failure to comply with such
requirements. Further, should User be cited by either the FCC or FAA because a
Tower is not in compliance within the time frame allowed by the citing agency,
User may terminate the Site Agreement for such Tower immediately upon notice to
BellSouth, or, at User's option, cause the Tower to comply with FAA or FCC
requirements and BellSouth shall be responsible for reimbursing User for its
actual, reasonable costs incurred to bring the Tower into compliance with FAA or
FCC requirements. Notwithstanding the foregoing, if FAA or FCC compliance
requires the removal and/or relocation of the Tower, User's sole remedy shall be
to terminate the Site Agreement for such Tower. Upon such termination, the
parties to the Site Agreement shall be released from all duties, obligations,
liabilities and responsibilities under the Site Agreement except for any
indemnity obligations, including without limitation, environmental indemnity and
tax obligations, and User's obligation to remove the Facilities from the
Property.
(b) Hazardous Substances. BellSouth and User agree that they will not
--------------------
use, store, dispose, or release any Hazardous Substances on the Property in
violation of any applicable federal, state or local law, regulation, or order.
"Hazardous Substances" means any hazardous material or substance which is or
becomes defined as a hazardous substance, pollutant or contaminant subject to
reporting, investigation or remediation pursuant to any federal, state or local
law, regulation or order; and any substance which is or becomes regulated by any
federal, state or local governmental authority; and any oil, petroleum products
and their by-products. BellSouth and User acknowledge that User, BellSouth,
Prior Users and Subsequent Users may each use diesel fuel and batteries in
appropriate small quantities from time to time to operate emergency back-up
generators provided that the transportation, delivery, storage, use and disposal
by User, BellSouth, a Prior User, or a Subsequent User, as the case may be, is
in compliance with all federal, state and local laws, regulations and orders.
BellSouth agrees to indemnify and save harmless the User against any and all
claims, liabilities, demands, causes of action, losses, damages, orders,
judgments, penalties, clean-up costs, costs and expenses including, without
limitation, attorneys fees and costs, arising from BellSouth's
misrepresentation, breach of warranty or breach of agreement contained in this
Section 15(b). User agrees to indemnify and save harmless BellSouth against any
and all claims, liabilities, demands, causes of action, losses, damages, orders,
judgments, penalties, clean-up costs, costs and expenses including, without
limitation, attorneys fees and costs arising from User's misrepresentation,
breach of warranty or breach of agreement, contained in this Section 15(b). The
obligations of BellSouth and User to indemnify the other pursuant to this
Section 15(b) shall survive the termination or expiration of this MSA and each
Site Agreement.
(c) Phase I - Environmental Site Assessment. After the execution and
---------------------------------------
delivery by BellSouth and User of an Entry and Testing Agreement for a Site User
may perform a Phase I -environmental site assessment on the Property pertaining
to such Site provided such Phase I -environmental site assessment does not
involve any subsurface soils testing and further provided
17
that User provides BellSouth with a complete written copy of the Phase I -
environmental site assessment within ten (10) days of completion at no expense
to BellSouth. Only with BellSouth's prior written consent and subject to
BellSouth's supervision may User perform a Phase II - environmental site
assessment on the Property.
(d) National Environmental Policy Act Compliance. Upon execution of a
--------------------------------------------
Site Agreement, and except as provided in a Site Agreement, BellSouth represents
that the Tower and Property comply with the applicable provisions of the
National Environmental Policy Act, 47 C.F.R. Section 1.1301 et seq. (`NEPA').
BellSouth acknowledges that it, and not the User, shall be responsible for
compliance with all applicable provisions of NEPA. BellSouth shall indemnify
and hold harmless User from any fines or other liabilities caused by BellSouth's
failure to comply with NEPA. In no event shall BellSouth be responsible to User
for lost profits, market share or consequential damages. Further, should
BellSouth be cited for noncompliance with NEPA and fail to bring the Tower
and/or Property into compliance, User, in addition to any and all other remedies
available to User at law or in equity, may terminate this Site Agreement
immediately upon written notice to BellSouth, or, at User's option, cause the
Tower to comply with NEPA and BellSouth shall be responsible for reimbursing
User for its actual, reasonable costs incurred to bring the Tower into
compliance with NEPA requirements. Notwithstanding the foregoing, if NEPA
compliance requires the removal and/or relocation of the Tower, User's sole
remedy shall be to terminate the Site Agreement for such Tower. Upon such
termination, the parties hereto shall be released from all duties, obligations,
liabilities and responsibilities under this Site Agreement except for any
indemnity obligations, including without limitation, environmental indemnity and
tax obligations, and User's obligation to remove the Facilities from the
Property.
(e) User acknowledges and understands that BellSouth has installed or
will install certain signage and/or physical barriers pertaining to radio
frequency exposure from BellSouth's transmitter and other equipment. User shall
instruct all of its personnel and its contractors performing work at the site to
read carefully all such signage, to follow the instructions provided in such
signage, and to honor all physical barriers. In no event shall User's personnel
or contractors tamper with any such signage or barriers. User shall be
responsible for placement of signage or physical barriers at or near its
facilities at the Site in order to comply with applicable FCC radio frequency
exposure guidelines. BellSouth agrees that it shall cooperate with User in
these efforts and that BellSouth shall instruct its personnel and contractors
performing work at the Site to read carefully all such signage, to follow the
instructions provided in such signage, and to honor all physical barriers. In
no event shall BellSouth's personnel or contractors tamper with any such signage
or barriers. BellSouth and User 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 Site.
16. Assignment or Subletting; No Liens.
----------------------------------
(a) Assignment by User. User shall not assign, convey, or transfer
------------------
its interest in this MSA or any Site Agreement without first obtaining
BellSouth's written approval, which approval may not be unreasonably withheld,
conditioned, or delayed. User is not permitted to sublease or to license its
interest in this MSA or any Site Agreement. Notwithstanding the foregoing, User
has the right, without the necessity of obtaining BellSouth's consent, to assign
this
18
MSA or any Site Agreement to a User Affiliate (as defined herein), provided that
User notifies BellSouth in writing of such assignment. For purposes hereof,
"User Affiliate" shall mean any entity which controls, is controlled by, or is
under common control with User or to any entity resulting from the merger or
consolidation of User, or to any person or entity which acquires substantially
all of the assets of User, provided that such assignee assumes in full all of
the obligations of User under this MSA and the Site Agreements that may be
assigned. Notwithstanding the above, in the event of a termination of User's
management relationship with SprintCom, User shall be permitted to assign its
rights under any Site Agreements to SprintCom, upon written notice to BellSouth.
(b) Assignment by BellSouth. BellSouth shall have the right to assign
-----------------------
this MSA or any Site Agreement to a BellSouth Affiliate (as defined herein) or
an assignee who purchases an MSA, RSA, BTA or MTA, as defined by the FCC,
without User's prior approval, and shall notify User within a reasonable time of
any such assignment. For purposes of this MSA and the Site Agreements,
"BellSouth Affiliate" shall mean any entity which controls, is controlled by, or
is under common control with BellSouth Carolinas PCS, L.P. ("BSCP") or BellSouth
Personal Communications, Inc. ("BPCI"), to any entity resulting from the merger
or consolidation of BSCP or BPCI, or to any person or entity which acquires
substantially all of the assets of BSCP or BPCI, provided that such assignee
assumes in full all of the obligations of BellSouth, under this MSA and the Site
Agreements that may be assigned.
(c) Liens. Except as provided in Section 10 (viii) hereof, User shall
-----
keep the Property, the Tower, the Site and the Facilities free from any liens
arising from any work performed, materials furnished or obligations incurred by
or at the request of User. All persons either contracting with User or
furnishing or rendering labor and materials to User shall be notified in writing
by User that they must look only to User for payment for any labor or materials.
If any lien is filed against the Property, the Tower, the Site or the Facilities
as a result of the acts or omissions of User, its employees, agents or
contractors or subcontractors, User shall discharge it or bond it off within
thirty (30) days after User learns that the lien has been filed.
17. Insurance, Risk of Loss.
-----------------------
(a) User's Insurance. Prior to installation of the Facilities and to
----------------
having access to a Site and at all times during the term of a Site Agreement,
User shall provide proof of insurance for each individual Site, as outlined
below, satisfactory to BellSouth, and maintain the coverages specified below
during the term of a Site Agreement and until all Facilities are removed from
the Site following termination of a Site Agreement:
(i) Commercial General Liability Insurance with limits of
not less than $2,000,000 per occurrence and in the aggregate.
(ii) Workers' Compensation coverage in the statutory amount.
(iii) Employers Liability coverage with limits of not less
than $500,000 each accident, $500,000 each employee by disease and $500,000
policy limit by disease.
(iv) Automobile Liability for Owned and Non-Owned Autos,
Combined Single Limit of $1,000,000.
19
(v) All Risk Insurance with Replacement Value coverage of
User's Facilities and personal property located on the Property.
(b) BellSouth's Insurance. At all times during the term of a Site
---------------------
Agreement, BellSouth shall maintain insurance for such Site as outlined below:
(i) Commercial General Liability Insurance with limits of not
less than $2,000,000 per occurrence and in the aggregate.
(ii) Workers' Compensation coverage in the statutory amount.
(iii) Employers Liability coverage with limits of not less
than $500,000 each accident, $500,000 each employee by disease and $500,000
policy limit by disease.
(iv) Automobile Liability for Owned and Non-Owned Autos,
Combined Single Limit of $1,000,000.
(v) All Risk Insurance with Replacement Value coverage of the
Tower and BellSouth's personal property located on the Property.
(c) Additional Insured. BellSouth shall be named as additional
------------------
insured on the policy listed in Section 17(a)(i) above. User shall be named as
additional insured on the policy listed in Section 17(b)(i) above.
Additionally, each party shall obtain a waiver of subrogation from its insurer
on the policies listed in Section 17(a)(i) and Section (b)(i) above. BellSouth
and User may satisfy this requirement by obtaining appropriate endorsements to
any master or blanket policy of liability insurance User or BellSouth, as
applicable, may maintain. No policy may be cancelable or subject to reduction
of coverage except after thirty (30) days prior written notice to BellSouth or
User.
(d) Third Parties. User and BellSouth shall require their respective
-------------
contractors and subcontractors to `carry workers' compensation insurance and
adequate liability insurance in conformity with the minimum requirements listed
above.
(e) Risk of Loss; Limitation of Liability. Notwithstanding anything
-------------------------------------
herein to the contrary, each party shall bear the risk of loss of or damage to
the respective personal property during the term of each Site Agreement except
to the extent caused by the negligence or willful misconduct of the other party.
Neither party shall be liable for any damage to the other party's personal
property except to the extent caused by a party's negligence or willful
misconduct. Notwithstanding anything herein to the contrary, the parties shall
not be liable for any consequential or incidental damages incurred by the other
party due to any malfunction, vandalism, acts of God (including, without
limitation, lightning, wind, rain, hail, fire or storms) or any other damage
resulting from any reason. In the event the Tower or other portions of the Site
are destroyed or so damaged as to be unusable, BellSouth or User shall be
entitled to elect to cancel and terminate the Site Agreement, or in the
alternative may elect to restore the Site, in which case User and BellSouth
shall remain bound hereby but shall be entitled to an abatement of rent during
the loss of use, if the User or BellSouth has not elected to cancel the Site
Agreement. In no event shall the leasehold or
20
other interest created by the Site Agreement be specifically enforceable and in
no event shall either BellSouth or User be responsible to any party for
consequential damages, lost business opportunities, profits or market share.
(f) Removal of Facilities. User's obligation to provide the insurance
---------------------
coverages set forth in this Section 17 shall survive the expiration or
termination of the Site Agreement until the User's Facilities are removed from
the Property.
18. Indemnification. User does hereby agree to indemnify and save
---------------
BellSouth harmless from any and all claims, liabilities, demands, causes of
action, losses, damages, orders, judgments, penalties, costs and expenses,
including without limitation, reasonable attorneys fees and costs (i) for
property damage or personal injuries or death caused by the negligence or
willful misconduct of User, User's agents, employees, and contractors arising
out of User's occupancy of the Site or the installation, maintenance, operation
and removal of the Facilities, or (ii) resulting from the User's breach of any
term or condition of this MSA or a Site Agreement. BellSouth does hereby agree
to indemnify and save User harmless from any and all claims, liabilities,
demands, causes of action, losses, damages, orders, judgments, penalties, costs
and expenses, including without limitation, reasonable attorneys fees and costs
(i) for property damage or personal injuries or death caused by the negligence
or willful misconduct of BellSouth, BellSouth's agents, employees, and
contractors arising out of BellSouth's occupancy of the Site or the
installation, maintenance and operation of the Facilities, or (ii) resulting
from BellSouth's breach of any term or condition of this MSA or a Site
Agreement. The obligations to indemnify and hold harmless set forth in this
Section shall survive the expiration or termination of this MSA and each
respective Site Agreement.
19. Default.
-------
(a) User's Default. Each of the following shall be considered a
--------------
default of a Site Agreement by the User:
(i) The failure to pay any rent or other charges required
pursuant to this MSA and the Site Agreement within thirty (30) days after
receipt of BellSouth's written notice of such failure;
(ii) The failure to cure, within (30) days after receipt of
BellSouth's written notice thereof, any breach of any other term of this MSA or
the Site Agreement, provided, however, that if such breach is not capable of
being cured within such period but User has undertaken efforts to cure such
breach, and such breach is capable of being cured, such thirty (30) day period
shall be extended for so long as User is diligently attempting in good faith, to
cure such breach, not to exceed an additional thirty (30) calendar days (except
for promises relating to interference as set forth in Section 13 (b) hereof);
(iii) Abandonment of the Site ("Abandonment" being defined as
user not using the Site for sixty (60) consecutive days);
(iv) The failure of User to eliminate interference problems as
set forth in Section 13(b); or
21
(v) If (a) User gives notice to any governmental body of its
insolvency or pending insolvency or makes an assignment for the benefit of
creditors or takes any other similar action for the protection or benefit of its
creditors, or files an answer admitting the material allegations of, or
consenting to, or defaults in answering any pleading filed with respect to the
commencement of any case or proceeding respecting User under any bankruptcy or
insolvency law, or (b) any order for relief is entered against User in any case
in bankruptcy, any order, judgment or decree is entered against User by a court
of competent jurisdiction appointing a receiver, trustee, custodian or
liquidator of User or of all or a substantial part of its assets, and such
order, judgment, or decree continues unstayed and in effect for a period of
ninety (90) consecutive days, or any proceeding for the reorganization of a
party under, or for an arrangement under, any bankruptcy or insolvency law
applicable to User is commenced whether by or against User and not dismissed
within ninety (90) days from commencement thereof.
Upon default of a Site Agreement by User, in addition to all other remedies
provided at law or in equity, BellSouth may, at its option:
(aa) elect to remove all of the Facilities by legal process,
thereby terminating the Site Agreement, and store the Facilities at User's
expense, payable upon demand by BellSouth.
(bb) elect to treat the Site Agreement in full force and
effect and shall be entitled to collect the rent provided for hereunder.
Upon the termination of a Site Agreement pursuant to Section (aa) above, the
parties hereto shall be released from all duties, obligations, liabilities and
responsibilities under the Site Agreement except for indemnity obligations,
including without limitation, environmental indemnity and tax obligations, any
obligations arising prior to the date of termination, and User's obligation to
remove its Facilities from the Property.
(b) BellSouth's Default. Each of the following shall be considered a
-------------------
default of a Site Agreement by BellSouth:
(i) The failure to cure, within (30) days after receipt of
User's written notice thereof, any breach of any other term of this MSA or the
Site Agreement, provided, however, that if such breach is not capable of being
cured within such period but BellSouth has undertaken efforts to cure such
breach, and such breach is capable of being cured, such thirty (30) day period
shall be extended for so long as BellSouth is diligently attempting in good
faith, to cure such breach, not to exceed an additional thirty (30) calendar
days (except for promises relating to interference by a Subsequent User as set
forth in Section 14 (e) which must be cured within the time frame set forth in
Section 14 (e) and except for any breach of the Master Lease/License which must
be cured within the time frames set forth in the Master Lease/License); or
(ii) The failure of BellSouth to eliminate interference
problems as set forth in Section 14 (e).
Upon default of a Site Agreement by BellSouth, in addition to all other remedies
provided at law or in equity, User may, at its option:
22
(aa) elect to cure BellSouth's default, in which event User
shall have the right to offset any and all reasonable costs incurred in curing
BellSouth's default against any rent or other amounts due BellSouth; or
(bb) elect to terminate the Site Agreement as of the date of
the default and to recover from BellSouth all damages (except those for which
BellSouth is not liable under the terms of this MSA) incurred by User as a
result of such default. Upon such termination, the parties hereto shall be
released from all duties, obligations, liabilities and responsibilities under
the Site Agreement except for any indemnity obligations, including without
limitation, environmental indemnity and tax obligations, obligation to pay
damages, and User's obligation to remove the Facilities from the Property.
20. Termination.
-----------
(a) Termination of Site Agreement.
-----------------------------
(i) Termination by User. Notwithstanding anything to the
-------------------
contrary contained in this MSA, User shall be entitled to terminate a Site
Agreement after the Commencement Date, with written notice to BellSouth in the
event:
(a) any Approval is canceled, expires, lapses, or is otherwise
withdrawn or terminated through no fault of the User; or
(b) any notice by BellSouth of relocation of User's Facilities
pursuant to Section 9 hereof is unacceptable to User.
Any such termination by User shall be effective thirty (30) days after receipt
of written notice by BellSouth. Upon such termination, the Site Agreement shall
terminate and be of no further force and effect, and except for any indemnity
obligations, including without limitation, environmental indemnity and tax
obligations, and User's obligations to remove the Facilities from the Property,
the parties hereto shall be released from all duties, obligations, liabilities
and responsibilities under the Site Agreement.
(ii) Termination by BellSouth.
------------------------
(a) In the event BellSouth's right to occupy the Property is
terminated at any time following execution of a Site Agreement as a result of
the termination or expiration of the Master Lease/License, the Site Agreement
shall automatically terminate upon the effective termination date of the Master
Lease/License and be of no further force and effect, and except for any
indemnity obligations and User's obligation to remove the Facilities from the
Property, the parties hereto shall be released from all duties, obligations,
liabilities and responsibilities under the Site Agreement. It is specifically
understood that BellSouth is under no obligation to extend the term of the
Master Lease/License, irrespective of the term stated in the Site Agreement.
The applicable Site Agreement shall expire upon the expiration or termination of
the applicable Master Lease/License
23
(b) In the event BellSouth needs additional capacity at a Site
for its equipment, BellSouth may terminate a Site Agreement as provided in
Section 9 hereof. In the event User refuses to lease, sublease, license or
sublicense, as applicable, a Reciprocal Site to BellSouth, for reasons unrelated
to User's capacity, zoning, permits, licenses and other required approvals, or
environmental issues with respect to such Reciprocal Site, BellSouth may elect
to terminate any existing Site Agreement in the same geographic market as the
proposed Reciprocal Site refused by User, effective thirty (30) days after
receipt by User of written notice. Upon termination of any Site Agreement, such
terminated Site Agreement shall be of no further force and effect and the
parties hereto shall be released from all duties, obligations, liabilities, and
responsibilities under the terminated Site Agreement, except for indemnity
obligations, User's obligation to remove the Facilities from the terminated
Site, and User's obligations set forth in Section 13 (h) hereof. In the event
User does not remove its Facilities from the terminated Site as provided in
Section 9 or Section 13 (h) hereof, as applicable, BellSouth shall have the
right to remove and store User's Facilities, at User's expense.
21. Condemnation. If the whole of the Property or Site which are subject
------------
of any Site Agreement or so much thereof as to interfere with the use thereof
shall be taken or condemned by any competent authority for any public or quasi-
public use or purpose, such Site Agreement shall terminate as of the date when
possession is taken. In such event, BellSouth shall be under no liability to
User resulting from such condemnation and User shall be entitled to no part of
any condemnation award except so much thereof as the condemning authority
expressly allocates to that portion of the proceeds directly attributable to the
value of User's Facilities on the Tower, its leasehold interest in the Site, and
moving or relocation expenses incurred by User. BellSouth shall provide User
with notice in writing of any actual or threatened condemnation proceedings
promptly after receiving notice thereof. Upon such termination, the parties to
the Site Agreement shall be released from all duties, obligations, liabilities
and responsibilities under the Site Agreement except for any indemnity
obligations, including without limitation, environmental indemnity and tax
obligations, and User's obligation to remove the Facilities from the Property.
22. Mortgage by BellSouth. This MSA and each Site Agreement is and shall
---------------------
be subject to a security interest or mortgage which might now or hereafter
constitute a lien upon the Site. This MSA and each Site Agreement is and shall
be subject and subordinate in all respects to any and all such mortgages on the
Site and to all renewals, modifications, consolidations, replacements and
extensions thereof. In the event any proceedings are brought for foreclosure or
in the event of the exercise of the power of sale under any mortgage covering
any Site, the User shall attorn to the purchaser upon any such foreclosure or
sale and recognize such purchaser as the lessor/licensor, as applicable, under
this MSA and the applicable Site Agreement(s); provided that so long as the User
is not in default hereunder, this MSA and the applicable Site Agreement(s) shall
remain in full force and effect, and User's use and occupancy pursuant to this
MSA and applicable Site Agreements shall not be disturbed.
23. Entirety. This MSA and Site Agreement, including all Schedules and
--------
Exhibits hereto and thereto, constitute the entire agreement between BellSouth
and User and any modification to the MSA or Site Agreement, any Schedule or
Exhibits hereto or thereto, must, in order to be effective, be in writing,
signed by authorized representatives of each party.
24
24. Waiver. Failure or delay on the part of either party to exercise any
------
right, power, privilege or remedy hereunder shall not operate as a waiver
thereof; nor shall any single or partial exercise of any right under this MSA of
under a Site Agreement preclude any other or further exercise thereof or the
exercise of any other right.
25. Binding Effect. This MSA and the Site Agreements shall extend to and
--------------
bind the heirs, personal representatives, successors, permitted assigns, or its
successors in interest of the parties hereto.
26. Governing Law. This MSA and each Site Agreement and performance
-------------
hereunder and thereunder shall be governed, interpreted, construed and regulated
by the laws of the state where the Property and Site are located.
27. Notice. All notices hereunder shall be deemed validly given if sent
------
by certified mail, return receipt requested, or with a nationally recognized
courier which provides notice of receipt, postage fully prepaid, addressed as
follows, or to such other addresses as may be given from either party in writing
to the other:
BellSouth: BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Real Estate Manager
with a copy to:
BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
User: AirGate Wireless, LLC
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Operating Officer
with a copy to:
AirGate Wireless, LLC
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Legal Department
28. Headings. Section headings in this MSA and in each Site Agreement are
--------
included for the convenience of reference only and shall not constitute a part
of this MSA or the Site Agreement for any other purpose.
25
29. Brokerage. User warrants and represents to BellSouth that it has not
---------
dealt with a real estate agent or broker with respect to this MSA or any Site
Agreement, and shall hold BellSouth harmless against all claims by any real
estate agent or broker claiming a commission hereunder or thereunder on behalf
of User. BellSouth warrants and represents to User that except for GlobalComm,
Inc., it has not dealt with a real estate agent or broker with respect to this
MSA or any Site Agreement, and shall hold User harmless against all claims by
any real estate agent or broker claiming a commission hereunder or thereunder on
behalf of BellSouth.
30. Memorandum of Lease. At the request of User, BellSouth hereby agrees
-------------------
to execute a memorandum or short form of lease (a "Memorandum of Lease"), in
form satisfactory for recording, and such Memorandum of Lease may be filed of
record by the User, at User's sole cost, including taxes or assessments incurred
in connection therewith. The parties understand and agree that this MSA and the
Site Agreements shall not be recorded of record. User agrees to prepare,
execute and record, at its expense, a release, within thirty (30) days of
expiration or termination of a Site Agreement. In the event User fails to do
so, BellSouth has a contractual right as User's agent for this limited purpose
to prepare, execute and record such release and User shall reimburse BellSouth,
upon demand, for all expenses, including attorney fees and filing fees, incurred
in connection therewith.
31. Counterparts. This MSA and each Site Agreement may be executed in any
------------
number of counterparts, each. of which shall be an original, but all of which
together shall constitute but one instrument.
32. Authority. Each party hereby represents and warrants to the other
---------
that all necessary corporate authorizations required for execution and
performance of this MSA and each Site Agreement have been given and that the
undersigned officer is duty authorized to execute this MSA and each Site
Agreement and bind the party for which it signs.
33. Severability. If any term, covenant, condition or provision of this
------------
MSA or the Site Agreement or any application hereof or thereof shall, to any
extent, be invalid or unenforceable, the remainder of this MSA and each Site
Agreement shall not be affected thereby, and shall be valid and enforceable to
the fullest extent permitted by law.
[Remainder of page intentionally left blank.)
26
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
BellSouth:
----------
BELLSOUTH CAROLINAS PCS, L.P.,
a Delaware limited partnership (SEAL)
By: BellSouth Personal Communications, Inc.,
a Delaware corporation, its general partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
--------------------------------
Title: Asst. Vice President-Real Estate
--------------------------------
Attest: /s/ Xxxx Xxx Xxxx
--------------------------------
Name: Xxxx Xxx Xxxx
--------------------------------
Title: Asst. Secretary
--------------------------------
[AFFIX CORPORATE SEAL]
BELLSOUTH PERSONAL COMMUNICATIONS, INC.,
a Delaware corporation
By: [sig]
--------------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------------
Title: Asst. Vice President-Real Estate
-----------------------------------
Attest: [sig]
----------------------------------
Name: Xxxx Xxx Xxxx
-----------------------------------
Title: Asst. Secretary
-----------------------------------
[AFFIX CORPORATE SEAL]
27
IN WITNESS WHEREOF, the parties hereto have set their hands the day and year
first above written.
User:
-----
AIRGATE WIRELESS, L.L.C.
a Delaware limited liability company (SEAL)
By [sig]
---------------------------------
Name: W. Xxxxx Xxxxx
--------------------------------
Title: Manager
-------------------------------
Witness: [sig]
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
--------------------------------
Title:
-------------------------------
STATE OF GEORGIA )
)
XXXXXX COUNTY )
I, a Notary Public for said County and State, do hereby certify that Xxxx
----------
Xxx Xxxx personally appeared before me this day and acknowledged that
-------------
he/she is Asst. Secretary of BELLSOUTH PERSONAL COMMUNICATIONS, INC., a Delaware
corporation, individually and as general partner of BELLSOUTH CAROLINAS PCS,
L.P., a Delaware limited partnership, and that by authority and as the act of
the corporation, individually and on behalf of the partnership, the foregoing
instrument was signed in its name by its Asst. Vice President, sealed with its
corporate seal, and attested by him/her as its Asst. Secretary.
[sig]
-------------------------------
Notary Public, State of Georgia
My Commission Expires: 4/1/02
[NOTARIAL SEAL]
STATE OF GEORGIA )
)
XXXXXX COUNTY )
I, a Notary Public for said County and State, do hereby certify that H. Xxxxx
----------
Xxxxx , a manager of AIRGATE WIRELESS, L.L.C., a Delaware limited liability
-------
company personally appeared before me this day and acknowledged the due
execution of the foregoing instrument on behalf of said limited liability
company.
[sig]
-------------------------------
Notary Public, State of Georgia
My Commission Expires: FEB. 12, 2001
[NOTARIAL SEAL]
FIRST AMENDMENT TO MASTER SITE AGREEMENT
----------------------------------------
THIS FIRST AMENDMENT TO MASTER SITE AGREEMENT ("Amendment") is made as of
the 26 , day of March , 1999 by and between BELLSOUTH CAROLINAS PCS,
L.P., a Delaware limited partnership, BELLSOUTH PERSONAL COMMUNICATIONS, INC., a
Delaware corporation, each doing business as BELLSOUTH MOBILITY DCS, and their
respective BellSouth Affiliates, successors and assigns (hereinafter
collectively referred to as "BellSouth") and AIRGATE WIRELESS, L.L.C., a
Delaware limited liability company ("LLC"), AIRGATE WIRELESS, INC., a Delaware
corporation ("AirGate"), AGW LEASING COMPANY, INC., a Delaware corporation
("AGW"), and their respective successors and permitted assigns (AirGate and AGW
sometimes hereinafter collectively referred to as the "User"). This Amendment
is further executed by SPRINTCOM, INC., a Kansas corporation ("SprintCom"), to
evidence their consent and agreement hereto, in accordance with certain
provisions hereof.
WITNESSETH:
THAT WHEREAS, BellSouth and LLC are parties to a Master Site Agreement
dated the 6th day of August, 1998 (the "MSA"); and
WHEREAS, BellSouth and User wish to amend certain terms and provisions of
the MSA.
NOW THEREFORE, for the mutual promises herein contained and other valuable
consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, BellSouth and User agree as follows:
1. Capitalized Terms. Capitalized terms contained herein and not
-----------------
otherwise defined in this Amendment shall have the remaining set forth in the
MSA.
2. Assignment and Assumption. LLC hereby assigns all of its right, title
-------------------------
and interest as "User" in and to the MSA and any Site Agreements executed as of
this date to AirGate and AGW. AirGate and AGW hereby jointly and severally
assume all of LLC's right, title and interest in and to the MSA and any Site
Agreements executed as of this date. AirGate and AGW are each parties to the
MSA as if they had been original signatories thereto. LLC is hereby released of
all obligations and liabilities under the MSA and existing Site Agreements and
AirGate and AGW expressly and jointly and severally assumes all such obligations
and liabilities.
3. Elimination of First Right Site Concept. Section 2(b) of the MSA is
---------------------------------------
deleted in its entirety. Reference in the MSA to First Right Sites shall no
longer be applicable to the MSA, except as to Sites which are First Rights Sites
for which Site Agreements have already been executed or first rights have been
previously exercised. A list of such sites is attached as Exhibit A attached
hereto and incorporated herein.
4. Execution of Certain Site Agreements; Commencement Date for Initial
-------------------------------------------------------------------
Sites.
-----
(a) User has submitted approximately * Site Applications to
BellSouth, for Sites which are referenced in Exhibit B attached hereto and
incorporated herein by reference (the "Initial Sites"). User agrees, following
the date hereof and in accordance with the terms of this Amendment, to proceed
to promptly execute Site Agreements on each of the Initial Sites.
(b) User agrees to execute and return Site Agreements on *
of the Initial Sites on or before * .
(c) User agrees to execute and return Site Agreements on *
more of the Initial Sites on or before * .
(d) User agrees to execute and return Site Agreements on the remaining
* Initial Sites on or before * .
(e) The Site Commencement Date for each Initial Site shall be the
earlier to occur of the following for the applicable Initial Site:
(i) The date when User commences the installation of its
Facilities on the Tower for that particular Initial Site; or
(ii) Forty-five (45) days from the date of full execution of the
Site Agreement for that particular Initial Site.
(f) Although the Site Commencement Date for the Initial Sites shall be
the dates stated above, the first * Dollars ($ * ) installment
of base annual rent for the Initial Sites shall not be due until the earlier to
occur of the following:
(i) the date when User commences the installation of its
Facilities on the Tower for that particular Initial Site (it being understood,
however, that User shall make such payment prior to actually beginning work at
the Tower); or
(ii) * ; or
(iii) *
(g) It is contemplated that some of the Site Agreements may be
executed prior to the completion and approval by User and BellSouth of all
structural analysis, site plan/sketch, and tower elevation sketch work. Such
work shall be done in a prompt and diligent manner. In the event that the
results of any such work demonstrates that the particular Site is not suitable
and not functional for its intended purpose, then any party may terminate that
Site Agreement prior to the Site Commencement Date and that particular Site
Agreement shall terminate and be of no further force or effect. All such work
shall be completed prior to the Site Commencement Date, however, if all such
work cannot be completed by the Site Commencement Date due to circumstances
beyond
---------------
*Portions of the specified exhibit has been omitted pursuant to a request for
confidential treatment and filed separately with the commission.
2
User's reasonable control, the parties will extend the date by which such
work shall be completed for a reasonable period of time. BellSouth shall notify
User of any such unsatisfactory results promptly upon learning of the results
and any Site Cost Reimbursement Amount paid for such Site by User shall be
credited toward its replacement as described in Section 4(h) below. User agrees
to immediately authorize the commencement of all such work.
(h) User acknowledges that it is contractually obligated to enter into
all * Site Agreements referenced above within the time frames
referenced above and to make the payment of the Site Cost Reimbursement Amount
as described below, subject to the possible termination of Site Agreements under
Section 4(g) of this Amendment. If any Site Agreements for Initial Sites are
terminated pursuant to Section 4(g) of this Amendment, User shall submit or
designate applications for additional Sites (which Sites shall be subject to the
reasonable approval of SprintCom, which approval or disapproval shall be granted
by SprintCom within five (5) business days of SprintCom's receipt of a request)
that shall become Initial Sites under this Amendment up to an aggregate number
of Initial Sites not to exceed * . In such event, any Site Cost
Reimbursement Amount or other charges previously paid shall be credited toward
the replacement Site. Without limiting BellSouth's remedies in the event of a
failure of User to execute such Site Agreements, BellSouth shall be entitled to
retain the Site Cost Reimbursement Amount.
(i) User acknowledges and agrees that all Initial Sites not terminated
under Section 4(g) of this Amendment shall become fully operational by User as
telecommunication facilities for the transmission and receipt of wireless
communications not later than * . The failure of User to meet the
foregoing date shall constitute an event of default for the applicable Site
Agreement.
5. Modification to Site Cost Reimbursement Amount Process. Section 5(c)
------------------------------------------------------
of the MSA is deleted in its entirety and replaced with the following:
(c) Site Cost Reimbursement Amount.
------------------------------
(i) User shall pay a one-time site cost reimbursement amount
("Site Cost Reimbursement Amount") to BellSouth, paid by User to BellSouth not
later than the execution and delivery of the Site Agreement (expect as provided
in Section 5(c)(ii) below). Except in certain circumstances, as set out herein,
the Site Cost Reimbursement Amount will not exceed [*] Dollars ($ [*] ) per
Site except for unusual Sites which, as a result of peculiar characteristics
required a greater capital expenditure by BellSouth (and except as provided in
Section 5(c)(ii) below). BellSouth and User acknowledge and agree that the Site
Cost Reimbursement Amount reflects an equitable sharing of the capital costs
incurred by BellSouth with respect to the construction of the Tower and the
ability of User to locate its Facilities thereon. Consequently, the Site Cost
Reimbursement Amount is independent of and in addition to, and not in
substitution or reduction of, all or any part of the Base Rent specified in such
Site Agreement, or the fair market value of the rent applicable to such Site. In
the event that User finds it necessary to structurally enhance or otherwise to
upgrade the Tower prior to locating on the Tower, any such enhancement or
upgrades shall be subject to BellSouth's prior written approval and the costs
which User incurs in performing
---------------
*Portions of the specified exhibit has been omitted pursuant to a request for
confidential treatment and filed separately with the commission.
3
said upgrade shall be applied and credited to the Site Cost Reimbursement Amount
for that particular Site.
(ii) *
6. Modification of Expense Amount. *
------------------------------
7. Assignment and Assumption Involving SprintCom. The terms of this
---------------------------------------------
Section shall apply for each Site Agreement entered into from and after the date
hereof as well as User's contractual obligations described herein; provided,
SprintCom shall not be liable for any obligations or liabilities arising prior
to, or based on actions prior to, the date of assignment or assumption under
this Section 7, except for the obligation of User to make all rent and Site Cost
Reimbursement Amount payments under this Amendment and to execute, commence and
maintain the Site Agreements in the manner provided in this Amendment. All Site
Agreements for all Initial Sites and the MSA (to the extent the MSA governs the
applicable Site Agreements) shall be automatically, and without the need for a
further writing, assigned by User to SprintCom and assumed by SprintCom, in the
event that:
(a) [ * ] or
(b) there is an event of termination under the terms of that certain
"Management Agreement between SprintCom, Inc. and AirGate Wireless, LLC" dated
July 22, 1998 as assigned or amended, that results in the transfer of User's
assets, including the Initial Sites, to SprintCom (it being understood that in
the event of any such default, SprintCom shall immediately provide BellSouth
with written notice and BellSouth shall be entitled for all purposed to rely
upon such written notice).
SprintCom's obligation and agreement to assume such Site Agreements of User (not
terminated under Section 4(g) of this Amendment) following the occurrence of
either of the items described in subparagraphs (a) and (b) above shall expire
upon the occurrence of each of (i) the Commencement Date for such Site Agreement
having occurred; and (ii) User having paid the first annual installment of base
rent for the applicable Site Agreement; and (iii) such applicable Site becoming
fully operational by User and a telecommunications facility for the transmission
and receipt of wireless communications. Notwithstanding the preceding sentence,
condition (iii) shall no longer apply following the occurrence of (i) no more
than [ * ] of the Initial Sites being fully operational by User as
telecommunications facilities for the transmission and receipt of wireless
communications and (ii) User having obtained necessary and sufficient financing
such that it can provide reasonable evidence to BellSouth that User has the
financial resources to make annual rental payments on the Initial Sites for not
less that [ * ] SprintCom is executing this Amendment to consent to the
provisions of this Section and to be bound hereunder. SprintCom acknowledges
that it has had the opportunity to review the MSA and agrees to the provisions
of this Amendment and this Section. Upon such assignment and assumption,
SprintCom and BellSouth each agree to execute such additional documentation as
may be reasonably requested by either party to further evidence such assignment
and assumption. In the event that such assignment and assumption occurs,
SprintCom shall have all rights, privileges and obligations under the MSA as
amended herein as the MSA relates
---------------
*Portions of the specified exhibit has been omitted pursuant to a request for
confidential treatment and filed separately with the commission.
4
to the applicable Site Agreements. Following any such assignment and assumption,
the applicable Site Agreements shall continue to be governed by the terms of
this MSA rather than the terms of the master agreement currently in place
between BellSouth and SprintCom. It is expressly understood that SprintCom's
obligations and agreements set forth above shall continue to be binding upon
SprintCom irrespective of any insolvency proceedings by User, including (without
limitation) any rejection of any or all Site Agreements by User in any
insolvency proceedings. It is agreed that SprintCom shall assume any Site
Agreements whether accepted by User (and then subsequently assigned by virtue of
a User default described above) or rejected by User in a bankruptcy proceeding.
Notwithstanding the preceding sentence, SprintCom shall not be obligated to
assume any Site Agreements during the period of User's insolvency proceeding as
established by the bankruptcy courts in which User has the option of accepting
or rejecting the applicable Site Agreements. Nonetheless, so long as SprintCom's
rights herein continue, during the continuing period of such bankruptcy
proceeding of User, SprintCom following its assumption of the contractual
obligations of User under this Amendment agrees that it shall immediately cure
any rent payment default of User under this Amendment, the MSA, or any
applicable Site Agreements which default is continuing on or after [ * ].
8. Assignment. Section 16(a) of the MSA is amended to provide that User
----------
shall have the right to assign its rights in the MSA and the Site Agreements, in
whole or in part, to SprintCom without the further consent of BellSouth.
Section 16(b) of the MSA is amended to provide that BellSouth shall have the
right to assign its rights in the MSA and the Site Agreements, in whole or in
part, to any party agreeing in writing to be bound to the terms thereof without
the further consent of User or SprintCom. In the event of any such assignment,
notice shall be given to the other party.
9. Tower Enhancement. In the event that User and BellSouth find it
-----------------
necessary to structurally enhance or otherwise to upgrade the Tower prior to
User's locating on the Tower, any such proposed enhancement shall be subject to
BellSouth's prior approval in BellSouth's sole discretion. In the event that
BellSouth consents to the upgrade, the cost for such upgrade shall be shared as
between BellSouth and User as follows: (i) the first [ * ] Dollars ($
[ * ] ) shall be paid by User; (ii) for all amounts in excess of [ * ]
Dollars ($ [ * ] ), such amounts shall be shared equally between User and
BellSouth. The manner and style or upgrade, including the parties performing
the upgrade, shall be subject to BellSouth's approval, which approval shall not
be unreasonably withheld. User shall receive a credit of up to [ * ]
Dollars ($ [ * ] ) toward the first annual installment of base rent for
User's costs associated with such tower enhancement.
10. AGW as Subtenants. It is understood that AGW is a wholly owned
-----------------
subsidiary of AirGate and that AGW may be the subtenant of the various Site
Agreements. The obligations of User under the MSA and this Amendment are joint
and several obligations of AirGate and AGW. AGW has had the opportunity to
review the MSA (as amended herein) and agrees to be bound by, and agrees that it
is bound by, the terms thereof. AGW covenants that is a corporation in good
standing and is fully authorized to enter this Amendment.
--------------
[ * ] Portions of the specified exhibit has been omitted pursuant to a request
for confidential treatment and filed separately with the commission.
5
11. Modification of Conditions Precedent. As it relates to the Initial
------------------------------------
Sites only, Section 5(b) of the MSA is deleted in its entirety and replaced with
the following (as it relates to all Sites other than Initial Sites, Section 5(b)
remains unchanged) (section references are to the MSA):
(b) Conditions Precedent to Site Commencement Date. Each Site
----------------------------------------------
Agreement is further contingent upon User being able to satisfy the following
conditions prior to the Site Commencement Date, as defined in the Site
Agreement:
(i) Approvals. User obtaining, after the Execution Date of the
---------
Site Agreement, all certificates, permits, licenses and other approvals that may
be require by any federal, state or local authorities (the "Approvals") to
permit User's intended use of the Leased Space. BellSouth shall cooperate, at
User's cost, with User in its effort to obtain such Approvals. In the event that
User notifies BellSouth that (aa) any application for an Approval is rejected
following due and diligent efforts by User to obtain the same, or (bb) any
application for Approval is not likely to be obtained or approved, as determined
in User's reasonable discretion after due and diligent efforts by User to obtain
the same, the Approvals shall be deemed to not have been obtained by User. In
the event no such notification is received by BellSouth prior to the
Commencement Date, this condition shall be deemed satisfied.
(ii) Radio Frequency Propagation Test. User determining, in
--------------------------------
User's reasonable discretion, that the results of any radio frequency
propagation tests are satisfactory, such that User is able to use the Leased
Space for User's intended use.
(iii) Utilities and Access. User determining, in User's
--------------------
reasonable discretion, that (aa) telephone and electric utilities are available
at the Leased Space or Tower of sufficient capacity to accommodate User's
Facilities and (bb) ingress and egress is available to and from the Leased Space
and to and from a publicly dedicated road.
(iv) Tower Capacity. User determining in User's reasonable
--------------
discretion, on a Tower analysis satisfying the requirements of Section 10 (ii)
hereof that the Tower is of sufficient capacity to accommodate the load
requirements of User's Facilities.
(v) Title. User determining in User's reasonable discretion that
-----
the status of title as to the Leased Space and easements granted herein are
acceptable to User.
(vi) Hazardous Substances. User determining in User's reasonable
--------------------
discretion that the Leased Space and Property are free of all Hazardous
Substances, as defined in Section 15(b) hereof.
If any one (1) of the conditions set forth above will not be satisfied,
User shall provide BellSouth with evidence satisfactory to BellSouth as to the
nature of the failure. In the event that such evidence is reasonably approved
by BellSouth, User shall have the right to terminate the Site Agreement by
giving BellSouth written notice thereof, which notice must be received on or
before the Site Commencement Date. If User elects to terminate the Site
Agreement, the Site Agreement shall terminate as of the date BellSouth receives
such notice from User and neither BellSouth nor User shall have any further
obligation under this Site Agreement except for any indemnity obligations and
User's obligation to remove its Facilities from the Property.
6
12. Full Force and Effect. Except as modified herein, the MSA remains
---------------------
unchanged and in full force and effect and applies to the Initial Sites subject
to this Amendment.
13. Authority. Each party hereby represents, covenants, and warrants to
---------
the other that all necessary authorizations required for the execution and
performance of this Amendment, the MSA as amended, and the Site Agreements have
been given and that the undersigned officer is duly authorized to execute this
Amendment and each Site Agreement and bind the party for which it signs.
14. Binding Effect. This Amendment shall be binding on the parties
--------------
hereto, as well as their permitted successors and assigns.
15. Additional Provisions. This Amendment and the MSA cannot be modified
---------------------
except by a written agreement executed by BellSouth, User and SprintCom. The
headings and captions contained in this Amendment are for convenience purposes
only and shall not be considered in construing or interpreting the provisions of
this Amendment. This Amendment contains all agreements, promises, and
understandings of the parties as to the subject matter herein contained, and no
verbal agreements, promises or statements by either party shall be binding upon
the parties as to the subject matter herein. This Amendment may be executed in
several counterparts, each of which shall be treated as an original. This
Amendment has been negotiated by BellSouth and User, each had a hand in the
drafting of this Amendment, and there shall be no presumption in favor of either
party based upon the party drafting this Amendment.
16. AGW and AirGate Authority. INTENTIONALLY OMITTED.
-------------------------
7
17. BellSouth Notice. Section 27 of the MSA is amended to provide that
----------------
BellSouth's notice address shall be as follows:
BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X., 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Real Estate Manager
with a copy to:
BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Legal Department
18. Sealed Instrument. This Amendment is executed under seal. The
-----------------
parties agree, however, that at the request of either party, the Site Agreements
need not be executed under seal.
19. SprintCom Notice. For the purposes of this Amendment, SprintCom's
----------------
notice address shall be as follows:
SprintCom, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Corporate Secretary
with a copy to:
SprintCom, Inc.,
0000 Xxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Vice President Law,
General Business and Technology
Remainder of This Page Intentionally Left Blank
Signature Page Attached Hereto and Incorporated Herein by Reference
8
Counterpart Signature Page to First Amendment to Master Site Agreement
----------------------------------------------------------------------
IN WITNESS WHEREOF, the undersigned have executed this Amendment under seal
the day and year first above written.
BELLSOUTH:
BELLSOUTH CAROLINAS PCS, L.P.,
a Delaware limited partnership (SEAL)
By: BellSouth Personal Communications, Inc.,
a Delaware corporation
By: __________________________________
Its: __________________________________
Date: __________________________________
Attest:
_____________________________
Assistant Secretary
[CORPORATE SEAL]
Witness:
__________________________________
__________________________________
BELLSOUTH PERSONAL COMMUNICATIONS, INC.,
a Delaware corporation
By: __________________________________
Its: __________________________________
Date: __________________________________
Attest:
_____________________________
Assistant Secretary
[CORPORATE SEAL]
Witness:
__________________________________
__________________________________
9
Counterpart Signature Page to First Amendment to Master Site Agreement
----------------------------------------------------------------------
IN WITNESS WHEREOF, the undersigned have executed this Amendment under seal
the day and year first above written.
LLC:
AIRGATE WIRELESS, L.L.C..,
a Delaware limited liability company (SEAL)
By: __________________________________(SEAL)
Its: __________________________________
Date: __________________________________
Witness:
_____________________________
_____________________________
10
Counterpart Signature Page to First Amendment to Master Site Agreement
----------------------------------------------------------------------
IN WITNESS WHEREOF, the undersigned have executed this Amendment under seal
the day and year first above written.
USER:
AGW LEASING COMPANY, INC.,
a Delaware corporation
By: __________________________________
Its: __________________________________
Date: __________________________________
Attest:
________________________
[_____] Secretary
[CORPORATE SEAL]
Witness:
_____________________________
_____________________________
AIRGATE WIRELESS, INC.,
a Delaware corporation
By: __________________________________
Its: __________________________________
Date: __________________________________
Attest:
________________________
[_____] Secretary
[CORPORATE SEAL]
Witness:
_____________________________
_____________________________
11
Counterpart Signature Page to First Amendment to Master Site Agreement
----------------------------------------------------------------------
IN WITNESS WHEREOF, the undersigned have executed this Amendment under seal
the day and year first above written.
SPRINTCOM:
SPRINTCOM, INC.,
a Kansas corporation
By: __________________________________
Its: __________________________________
Date: __________________________________
Attest:
________________________
Assistant Secretary
[CORPORATE SEAL]
Witness:
_____________________________
_____________________________
12
