MASTER BUILD TO SUIT AND LEASE AGREEMENT
THIS MASTER BUILD TO SUIT AND LEASE AGREEMENT ("Master Lease" or
"Agreement") is made and entered into by and between TRITEL COMMUNICATIONS,
INC., a Delaware corporation ("Carrier") and SBA TOWERS, INC., a Florida
corporation ("Tower Company").
WHEREAS, Carrier has licenses to provide personal communications
service ("TCS") in the states of Alabama, Florida, Mississippi, Tennessee,
Kentucky and any additional state or markets in which Carrier obtains a license
to provide PCS;
WHEREAS, Carrier requires that in certain instances towers and related
facilities be developed for the installation of antennas, equipment cabinets,
cabling and related equipment;
WHEREAS, Carrier also requires that parcels of real property together
with easements for ingress, egress and utilities to those properties be acquired
for the construction of the towers and related facilities;
WHEREAS, Carrier has acquired or leased parcels of real property for
the operations of a wireless or telecommunications facility;
WHEREAS, Carrier desires to assign to Tower Company certain of those
leases and for Tower Company to construct facilities on the sites;
WHEREAS, Carrier also desires for Tower Company to lease or purchase
designated parcels of property when Carrier has not already leased such
properties to construct towers or structures for the operation of a wireless or
telecommunications facility;
WHEREAS, Carrier desires to lease space on the facilities from Tower
Company when the towers or structures are completed.
NOW THEREFORE, for [CONFIDENTIAL TREATMENT REQUESTED] and other good
and valuable consideration, the legal receipt and sufficiency of which is hereby
mutually acknowledged and agreed to, Carrier and Tower Company do hereby agree
as follows:
I. DEFINITIONS
1.1. DEFINED TERMS. In addition to the terms defined elsewhere in this
Agreement, the following terms shall have the following meaning (such meanings
to be applicable equally to the singular and plural forms of such terms) unless
the context otherwise requires:
"ASSIGNMENT" shall mean the assignment of the Ground Lease from Carrier to Tower
Company.
"CARRIER" shall mean Tritel Communications, Inc.
"CARRIER'S EQUIPMENT" OR "CARRIER EQUIPMENT" shall mean the equipment that may
be installed at the Site by Carrier which shall be described in the Schedule
attached to Attachment "VI" for each Market.
"COMMENCEMENT DATE" shall mean the date when the initial term of each SLA shall
commence and shall be the date which is the later of (i) the date that Tower
Company completes installation of Carrier
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Equipment on the Premises in the event that the Tower Company is installing
Carrier's Equipment on the Premises or (ii) fifteen (15) days after Carrier has
accepted the Tower Facilities pursuant to Paragraph 3.8, or (iii) in the event
that Carrier has not accepted the Tower Facilities pursuant to Paragraph 3.8,
fifteen (15) days after the date that the Tower Facilities are substantially
complete and Carrier is able to operate the Carrier Equipment upon the Tower
Facilities in compliance with all laws, rules and regulations. In the event that
Carrier reasonably disputes Tower Company's assertion that all items on a
Punchlist have been completed and the uncompleted item precludes Carrier's
installation or operation of its equipment, the Commencement Date shall be the
date on which such item has been completed to the reasonable satisfaction of
Carrier.
"EASEMENTS" shall mean any and all easements for access, ingress, egress or
utilities easements obtained or intended to be utilized for the Applicable Tower
Site.
"FAA" shall mean the Federal Aviation Administration.
"FCC" shall mean the Federal Communications Commission.
"GROUND LEASE" shall mean the lease, option or other contract between the owner
of the Property and Tower Company (or Carrier who will assign the lease to Tower
Company) for the property where the Tower Facilities will be located.
"GROUND LESSOR" shall mean the owner of the fee simple interest or other
interest in the entire portion of Property where the Tower Facility is to be
located and the person who has entered into a ground lease with Tower Company
(or Carrier who will assign the lease to Tower Company) for the lease of the
entire Property for the location of a Tower Facility upon the Property.
"HAZARDOUS MATERIALS" shall mean any substance, chemical or waste identified as
hazardous or toxic in any applicable federal, state or local law or regulation
including, without limitation, petroleum or hydrocarbon based fuels such as
diesel, propane or natural gas.
"MASTER LEASE" OR "AGREEMENT" shall mean this Master Build to Suit and Lease
Agreement.
"MARKET" shall mean each market in which Tritel does business and shall be
divided into and include each of the following markets and the term "Market"
shall mean one of the following:
o Knoxville market which encompasses the Knoxville BTA
o Chattanooga market which encompasses the Chattanooga BTAs
o Nashville market which encompasses the Nashville BTAs, but excludes any Sites
located in the State of Kentucky
o Birmingham market which encompasses the Birmingham BTAs
o Huntsville Alabama market which encompasses the Huntsville BTAs
o Mississippi market which encompasses the Memphis and Xxxxxxx BTAs
o Kentucky market which encompasses the Louisville, Lexington and Evansville
BTAs and any other Sites located in the State of Kentucky
o Montgomery, Alabama market which encompasses the Montgomery BTA
"MPE" shall mean Maximum Permissible Exposure.
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"PCS" shall mean personal communications service.
"PLANS" shall mean plans for the construction of the Tower Facilities.
"PRE-DEVELOPMENT COSTS" shall mean the cost of developing the Site for the
location, construction and operation of a Tower Facility upon the Site and shall
include without limitation, the cost of the site acquisition. services, phase I
environmental assessments, geotechnical analyses, title reports, title opinions,
title commitments and title insurance, designs, Plans and Specifications,
construction plans, the cost incurred in obtaining grants of easements,
supplies, relevant travel expenses, fees or assessments imposed by local, state
or federal governmental entities, recording fees and filing fees, reasonable
fees of engineers, surveyors, architects, attorneys, brokerage commissions and
others providing professional services.
"PRE-DEVELOPMENT INFORMATION" or "PRE-DEVELOPMENT MATERIALS" shall mean all
items, reports, and matters necessary to complete the development and
construction of the Tower Facilities upon the Applicable Tower Site, including
without limitation (i) zoning permits and approvals, variances, building permits
and such other federal, state or local governmental approvals for the Applicable
Tower Site; (ii) the construction, engineering and architectural drawings and
related site plan and surveys pertaining to the construction of the Tower
Facilities on the Property (iii) the geotechnical report for the Property; (iv)
a title report, commitment for title insurance, ownership and encumbrance
report, title opinion letter, copies of instruments in the chain of title or any
other information which may have been produced regarding the marketability of
title and title to the Property and the easements; and (v) environmental
assessments including phase I reports and a report relating to contemporaneous
or subsequent intrusive testing, the "FCC Checklist" performed pursuant to
National Environmental Protection Act requirements and any other information
which may be necessary to obtain permits and maintain licensing for the
operation of a wireless communications facility upon the Applicable Tower Site.
"PRE-DEVELOPMENT NOTICE" shall mean notice that Tower Company has delivered to
Carrier all of the Pre-Development Information for the Applicable Tower Site.
"PREMISES" shall mean the space occupied by Carrier's Equipment on each Tower
Facility, the ground space adjacent to the Tower Facility where Carrier's
Equipment is located, the Easements and all cabling, conduit, wires and
utilities running to and from the Tower Facility and to and from Carrier's
Equipment for each Applicable Tower Site as defined in each SLA.
"PROPERTY" OR "SITE" shall mean the entire portion of property where the
Applicable Tower Site will be located which property is being leased from Ground
Lessor.
"PUNCH LIST" shall mean a list of items that Carrier deems necessary that Tower
Company complete, fix, alter or correct in order for the Tower Facilities to be
completed in accordance with the Plans and Specifications.
"SPECIFICATIONS" shall mean the specifications for the construction of the Tower
Facilities.
"TOWER COMPANY" shall mean SBA Towers, Inc., a Florida corporation.
Notwithstanding anything to the contrary contained in this Agreement, Tower
Company has the right to delegate certain services and duties under this
Agreement to SBA, Inc. or Communication Site Services, Inc., both of which
corporations are wholly owned by the same corporation that wholly owns Tower
Company, provided that such delegation of duties does not encompass a majority
of or substantial portion of Tower Company's
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duties and obligations under this Agreement and further provided that such
parties agree to comply with and abide by the terms, conditions and provisions
of this Agreement.
"TOWER FACILITIES" shall mean the (i) tower, (ii) foundations, (iii) fenced
compound enclosing the Tower Site, (iv) high capacity telephone service to a
main connection point within the compound, (v) concrete equipment pad for
Carrier's exclusive use, (vi) minimum of 200 amp electrical service to a main
connection point within the compound, (vii) access sufficient for the placement
and routine servicing of tenant antennas and base station equipment, and (viii)
grounding to Carrier's reasonable standards and specifications, to be located
upon the Applicable Tower Site.
II. GRANT OF RIGHTS, ASSIGNMENT AND
ASSUMPTION OF GROUND LEASES, AND SUBLEASING
2.1. (a) GRANT. Carrier grants Tower Company the nonexclusive right to
develop, construct and lease those sites in Carrier Markets which involve the
construction of towers and related facilities ("Tower Sites") upon the terms and
conditions of this Master Lease from the date of this Agreement through December
31, 2000 and any extensions thereto which are mutually agreed upon by Tower
Company and Carrier. Tower Company acknowledges and agrees that the right to
develop, construct and lease the Tower Sites is not an exclusive right and that
Carrier may grant similar rights to other parties.
(b) APPLICATION.
(i) NOTICE. In the event that Carrier identifies a Tower Site or
search ring where it intends to place, develop and construct a tower,
and Carrier intends to grant to Tower Company the right to develop,
construct and lease such Tower Site, Carrier shall give Tower Company
notice of the Tower Site, and such Tower Site shall hereinafter be
referred to as the "Applicable Tower Site".
(A) NOTICE OF SEARCH RING. In the event that Carrier has issued a
search ring for the Applicable Tower Site, but has not obtained a lease,
contract, option or other right to lease the property for the Applicable Tower
Site, Carrier shall notify Tower Company in writing of the parameters of the
search ring for the Applicable Tower Site (the "Search Ring Notice").
(B) NOTICE OF LEASE. In the event that Carrier has obtained a
fully executed option, lease, contract or other right to lease the property for
the Applicable Tower Site, Carrier shall notify Tower Company in writing of and
deliver to Tower Company a complete copy of the lease, option, contract or other
right to lease the property for the Applicable Tower Site (the "Lease Notice").
(C) NOTICE OF BUILDING PERMIT. In the event that Carrier has
obtained a fully executed lease, contract, option or other right to lease
property for an Applicable Tower Site and is preparing to apply for a building
permit for the Applicable Tower Site, Carrier shall notify Tower Company in
writing, at least ten (10) days before the date that Carrier intends to make
application for a building permit for Applicable Tower Site (the "Building
Permit Notice") (the Search Ring Notice, the Lease Notice and the Building
Permit Notice shall be collectively referred to as the "Notice of Applicable
Tower Site").
(D) OBLIGATION TO GIVE NOTICE. Notwithstanding paragraphs
2.1(b)(i)(A), (B) and (C), Carrier shall not be obligated to provide Tower
Company the Notice of Applicable Tower Site until ten (10) days prior to the
date that Carrier intends to make application for a building permit for the
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Applicable Tower Site, provided however, Carrier may elect to provide Tower
Company Notice of the Applicable Tower Site pursuant to 2.1(b)(i)(A) or
2.1(b)(i)(B) above.
(ii) ACCEPTANCE OR REJECTION OF APPLICABLE TOWER SITE.
(A) Tower Company shall have a period of twenty (20) days (the
"Application Period") from the date of the Notice of Applicable Tower
Site is received by Tower Company to accept (in the event of
acceptance, the "Notice of Acceptance") or reject in writing any such
Applicable Tower Site because of any characteristics associated with
the Applicable Tower Site which would in the reasonable opinion of
Tower Company adversely impact the development or ownership of the
Applicable Tower Site as a multi-tenant tower site. In the event that
Tower Company does not accept or reject the Applicable Tower Site
within such twenty (20) day period, Tower Company shall be deemed to
have rejected such Applicable Tower Site. In the event that Tower
Company rejects or does not accept any Applicable Tower Site, Tower
Company shall have no right to require an assignment of the Ground
Lease or obligation to develop the Applicable Tower Site and Carrier
shall have no further obligation to Tower Company in regards to the
Applicable Tower Site under the terms of this Agreement.
(B) (I)Notwithstanding anything to the contrary contained in this
Agreement, in the event that Tower Company accepts an Applicable Tower
Site, Tower Company will have the right to terminate its obligations
with respect to such Applicable Tower Site under the terms of this
Agreement at any time prior to commencement of construction of the
Tower Facilities by providing a notice to Carrier because of (a) a
title or environmental defect that materially adversely affects Tower
Company's intended use of the Applicable Tower Site as a multi-tenant
tower site and as contemplated under this Agreement provided that such
defect is not caused by or contributed to by Tower Company, (b) Tower
Company is unable to obtain necessary governmental approvals for the
Applicable Tower Site as a multi-tenant tower site, or (c) Tower
Company will be unable to obtain necessary governmental approvals
without excessive cost and/or delay for the Applicable Tower Site as a
multi-tenant tower site. (II) In the event of such a termination, if
the applicable SLA has been signed, it will be deemed terminated
automatically without further notice or agreement. Additionally upon
such termination, Tower Company shall assign to Carrier any Ground
Lease or Pre-Development Information which Tower Company may have
regarding the Applicable Tower Site and Carrier shall assume any
reasonable obligations thereunder the cost of which are provided for
under this Agreement or the SLA and Carrier shall be obligated to the
Tower Company for the reasonable Pre-Development Costs which have been
agreed upon pursuant to the terms of this Agreement, including without
limitation any Pre-Development Costs previously reimbursed by the Tower
Company to the Carrier.
(C) Notwithstanding anything else contained herein, Tower Company
shall not be obligated to accept a Site, an assignment of the Ground
Lease or Pre-Development Information until Carrier has completed all
the items and work necessary for the completion of the stage of work or
milestone which the Carrier has performed or intends to perform.
(c) DUE DILIGENCE. During the (i) Application Period; and (ii) in the
event that Tower Company provides Carrier with a Notice of Acceptance with
respect to the Applicable Tower Site,
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during the period between the Application Period and the Commencement Date on
the applicable SLA; and (iii) during the term of the applicable SLA, provided
that Tower Company has assumed the Ground Lease, and has entered into an SLA
with Carrier for the Applicable Tower Site, Carrier shall make available to
Tower Company the Pre-Development Information. Carrier shall cooperate with
Tower Company in making reasonable modifications to the Pre-Development
Information at the request of Tower Company.
(d) FEDERAL AVIATION ADMINISTRATION APPROVAL. Carrier shall not file
with the FAA any application, responses, approvals and registration numbers
submitted or received with respect to any Applicable Tower Site without the
prior approval of Tower Company which approval shall not be unreasonably
withheld, delayed or conditioned by Tower Company.
(e) ASSIGNMENT AND ASSUMPTION OF GROUND LEASE. In the event that Tower
Company accepts the Applicable Tower Site for development pursuant to paragraph
2.1 of this Agreement, and Carrier has entered a Ground Lease with the Ground
Lessor, Carrier shall assign to Tower Company and Tower Company shall assume and
agree to be bound, by the Ground Lease, together with the Easements to the
Property pursuant to the Assignment and the relationship of the parties with
regard to the Applicable Tower Site shall thereafter be governed by this
Agreement. In the event that the Ground Lessor must consent to the assignment of
the Ground Lease, the Assignment (and assumption on the part of Tower Company)
shall be contingent upon the delivery of the consent of the Ground Landlord to
the Assignment in substantially the form of the consent provided in the Estoppel
Certificate attached hereto as Attachment "III" and such consent shall be a
condition precedent to the Assignment. The form of the Assignment by which
Carrier assigns the Ground Lease and any Easements to Tower Company shall be
substantially the same form as that which is attached hereto as Attachment "I".
The Assignment shall be executed by Carrier and Tower Company in three (3)
counterpart originals, and one original execution copy shall be delivered to
Carrier and two (2) original execution copies shall be delivered to Tower
Company simultaneously with the assignment of the Pre-Development Information.
In addition thereto, Tower Company and Carrier shall execute a Memorandum of
Assignment in substantially the form of Attachment "II" to be recorded in the
office of the property records in the County where the Property is located. The
Memorandum of Assignment shall be executed and delivered to Tower Company
simultaneously with the Assignment. Tower Company shall send the Memorandum of
Assignment to the appropriate recording office for recording prior to the
commencement of construction of the Tower Facilities as commencement of
construction is defined in any mechanics or materialman's lien statute in the
state where the Property is located (provided that Tower Company receives the
Memorandum of Assignment executed by Carrier prior to such time). In addition
thereto, Tower Company and Carrier shall use reasonable efforts to obtain from
the Ground Lessor, a release of Carrier from all liabilities under the Ground
Lease and shall include such release language in the Estoppel Certificate which
is attached hereto as Attachment "III". Tower Company and Carrier shall exercise
reasonable efforts to obtain an estoppel certificate from the Ground Lessor in
substantially the form of the estoppel certificate attached hereto as Attachment
"III." Tower Company shall and hereby agrees to hold Carrier harmless and
indemnify Carrier from any and all claims, losses, obligations, damages, costs
or expenses ever suffered, threatened or incurred by Carrier by reason of any
act or omission of Tower Company under the Ground Lease from and after the date
of the assignment, including without limitation, any default under the Ground
Lease. Carrier shall and hereby agrees to hold Tower Company harmless and
indemnify Tower Company from any and all claims, losses, obligations, damages,
costs or expenses ever suffered, threatened or incurred by Tower Company by
reason of any act or omission of Carrier under the Ground Lease before the date
of the assignment, including without limitation, any default under the Ground
Lease.
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(f) ASSIGNMENT AND ASSUMPTION OF PRE-DEVELOPMENT INFORMATION. In the
event that Tower Company accepts the Applicable Tower Site for development
pursuant to Paragraph 2.1 of this Agreement, and whether or not Carrier has
entered a Ground Lease with the Ground Lessor, Carrier shall assign to Tower
Company and Tower Company shall assume and agree to be bound, by Tower Company's
right, title and interest in the Pre-Development Materials in Carrier's
possession, to the extent transferable or assignable, and without warranty or
representation, pursuant to an assignment and assumption agreement,
substantially in the form of the Assignment attached hereto as Attachment "I"
and the relationship of the parties with regard to the Applicable Tower Site
shall thereafter be governed by this Agreement. The assignment of
Pre-Development Materials shall be executed by Carrier and Tower Company in
three (3) counterpart originals, and one (1) original execution copy shall be
delivered to Carrier and two (2) original execution copies shall be delivered to
Tower Company within five (5) days of the Notice of Acceptance. Unless otherwise
provided in the schedule, simultaneously with the execution of the assignment of
Pre-Development Information by the parties, Tower Company shall pay Carrier the
Pre-Development Costs incurred by Carrier in connection with the Pre-Development
Information in accordance with Attachment "VI".
(g) COMPLETION OF PRE-DEVELOPMENT WORK. In the event that Tower Company
accepts the Applicable Tower Site in accordance with the terms of this
Agreement, Tower Company shall obtain and be responsible and liable for the
completion of all matters necessary to complete the construction of the Tower
Facilities upon the Applicable Tower Site that have not been completed by
Carrier, including without limitation (i) obtaining zoning permits and
approvals, variances, building permits and such other federal, state or local
governmental approvals for the Applicable Tower Site, provided that Carrier will
reasonably cooperate with Tower Company in connection therewith; (ii) obtaining
the construction, engineering and architectural drawings and related site plan
and surveys pertaining to the construction of the Tower Facilities on the
Property (iii) obtaining the geotechnical report for the Property; (iv)
obtaining a title report, commitment for title insurance, ownership and
encumbrance report, title opinion letter, copies of instruments in the chain of
title or any other information which may have been produced regarding the
marketability of title and title to the Property and the easements; and (v)
obtaining environmental assessments including phase I reports and a report
relating to contemporaneous or subsequent intrusive testing, the "FCC Checklist"
performed pursuant to National Environmental Protection Act requirements and any
other information which may be necessary to obtain permits and maintain
licensing for the operation of a wireless communications facility upon the
Applicable Tower Site (collectively the "Pre-Development Information" or the
"Pre-Development Materials"). Tower Company shall make available to and deliver
to Carrier copies of all of the Pre-Development Information prior to the
execution of an SLA.
(h) ZONING AND GOVERNMENTAL APPROVALS. In the event that it is
necessary to obtain any zoning or governmental approvals, permits, variances, or
other action from any federal, state or local governmental body or entity
("Governmental Approvals") for the Applicable Tower Site and Tower Company has
accepted the Applicable Tower Site prior to the issuance of such Government
Approvals, where reasonably practicable and where Tower Company has not entered
into a lease or license with any other carrier for the occupancy of the Tower
Facility upon the Applicable Tower Site and provided that, Carrier has provided
Tower Company notice that it intends to exercise its right to approve the
Government Application contemporaneously with the delivery of the Notice of
Applicable Tower Site, Carrier shall have the right:
(I) to approve, (such approval not to be unreasonably withheld, delayed or
conditioned) any application, motion, appeal or action ("Government
Application") for such Government Approvals; and
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(II) to approve any presentation, witnesses, evidence, materials or
reproduced works, or similar items, matters or parties which Tower
Company intends to utilize or present for or to any person, entity,
body or commission for such Governmental Approval; and
(III) to require Tower Company to hire or use any witnesses, attorneys,
consultants, lobbyists, public relations consultants, or parties which
Carrier deems reasonably necessary to obtain the Governmental Approval.
Carrier shall pay and be liable for the added expense (the addition of which
shall be documented by Tower Company) of exercising its rights under (I), (II),
or (III). The withholding of any approval by Carrier solely because the Tower
Facility has been designed as a multi-tenant tower site shall be an approval
deemed to be unreasonably withheld. In the event that Tower Company has not
entered into a lease or license with any other carrier for the occupancy of the
Tower Facility upon the Applicable Tower Site, Carrier shall have the right at
any time to withdraw, dismiss, terminate or otherwise cease any process, hearing
or proceeding upon or regarding a Government Application. Tower Company may
proceed with the Government Application but in no event shall Tower Company
publish, advertise or otherwise use Carrier's name or likeness in the Government
Application or any proceeding, appeal or other filing for the Government
Approval and further provided that Carrier shall not be liable for any further
costs or expenses incurred in connection with the Applicable Tower Site,
including without limitation for the Government Approvals and that Carrier shall
not be liable or responsible for or obligated to enter an SLA with Tower Company
for the Applicable Tower Site. In the event that Carrier desires to terminate,
dismiss, withdraw or otherwise cease any process, hearing, or proceeding upon or
regarding a Government Application and in the reasonable opinion of Tower
Company and Tower Company's counsel (in writing) such Government Application
could have been approved and Tower Company does not construct a tower or similar
facility upon the Applicable Tower Site, Carrier shall reimburse Tower Company
for all fees and expenses incurred in connection with the Government
Applications and the Pre-Development Costs. If the Tower Company is unable to
obtain the Government Approvals for any Applicable Tower Site within One Hundred
and Twenty (120) days after the Notice of Acceptance, (subject to the force
majeure provisions of Paragraph 5.5(e), provided, however, that such act of
force majeure (or such delay) is not contributed to or caused by any fault or
negligence of Tower Company), Tower Company or Carrier may terminate the SLA
within ten (10) days thereafter by providing written notice of termination to
the other party. Upon such termination, at the option of the Carrier, Tower
Company shall assign or reassign and deliver any or all Ground Leases under the
Applicable Tower Site to Carrier or its assignee, any or all Pre-Development
Information regarding the applicable Tower Site to Carrier or its assignee and
any other easements, leases, licenses, subleases or agreements regarding or
related to the Applicable Tower Site to the Carrier or its assignee.
(i) SITE LEASE AGREEMENT. (i) In the event that an application for a
building permit has been submitted for the Applicable Tower Site by the Carrier
and that all Pre-Development Information has been completed and delivered to
Carrier, Carrier and Tower Company shall execute two original execution copies
of a Site Lease Agreement ("SLA") in substantially the form of the SLA attached
hereto as Attachment "IV" and deliver such SLA to the other party within five
(5) business days of the Notice of Acceptance. Tower Company shall execute and
deliver a Memorandum of SLA in substantially the form of the Memorandum of SLA
attached hereto as Attachment "V" contemporaneously with the execution and
delivery of the SLA.
(ii) In the event that the Notice of Acceptance has been received prior to
the submission of an application for a building permit and the delivery of all
Pre-Development Information to Carrier, Carrier and Tower Company shall execute
two original SLAs in substantially the form of the SLA attached hereto
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as Attachment VI and deliver such SLA to the other party within five (5)
business days of the delivery of Pre-Development Notice to Carrier.
(iii) Carrier may refuse to execute and reject the SLA on any Applicable
Tower Site because of any deficiency in the Pre-Development Information that
materially adversely affects Carrier's intended use of the Applicable Tower Site
for a wireless communications network or any deficiencies which are disclosed in
the Pre-Development Information, (which Carrier did not obtain or prepare, did
not have notice of, or in the event that Carrier had notice of such defect,
Carrier did not object to such defect) which materially adversely affect
Carrier's intended use of the Applicable Tower Site for a wireless
communications network, including without limitation (A) exceptions to the title
of the Property or the Easements that materially adversely affect Carrier's
intended use of the Applicable Tower Site for a wireless communications network;
(B) deficiencies in the Plans and Specifications that materially adversely
affect Carrier's intended use of the Applicable Tower Site for a wireless
communications network; (C) deficiencies in the geotechnical analysis or
environmental assessments for the Property or any deficiencies regarding the
condition of the Property that materially adversely affect Carrier's use of the
Applicable Tower Site for a wireless communications network; or (D) deficiencies
in any requirements under the National Environmental Protection Act that cannot
be remedied within thirty (30) days of Tower Company's receipt of notice of such
deficiency from Carrier; (E) any deficiency in the SLA that materially adversely
affects Carrier's intended use of the Applicable Tower Site for a wireless
communications network; or (F) any deficiency in the Ground Lease or the due
authorization thereof that materially affects Carrier's intended use of the
Applicable Tower Site for a wireless communications network. In the event that
Carrier refuses to execute or rejects the SLA in accordance with this paragraph,
Carrier shall have no obligation to execute an SLA or obligation to Tower
Company under this Master Lease in regards to the Applicable Tower Site. In the
event that Carrier refuses to execute or rejects the SLA under this paragraph
and Tower Company does not construct a tower upon the Applicable Tower Site,
Carrier shall reimburse Tower Company up to one-half of the Pre-Development
Costs (hereinafter defined), which accrued or were incurred, prior to Tower
Company's notice of or knowledge of such deficiency in the Pre-Development
Information, but in any event no more than $15,000.00 for the Pre-Development
Costs for the Applicable Tower Site.
(iv) Carrier shall be responsible for recording and bear the cost of
recording the Memorandum of SLA.
III. DESIGN AND CONSTRUCTION OF TOWER FACILITIES
3.1. COVENANT TO CONSTRUCT. Construction of the Tower Facilities shall
be the responsibility and obligation of Tower Company. Tower Company shall be
responsible for the costs and construction of the Tower Facilities. Tower
Company shall construct the Tower Facilities in accordance with and substantial
compliance with the Plans and Specifications and all rules, regulations, laws,
and orders of any governing body, local, state or federal. Tower Company shall
obtain all necessary permits and approval of the Plans and Specifications from
all applicable governmental agencies.
3.2. APPROVAL OF PLANS AND SPECIFICATIONS. (a) In the event that
Carrier has obtained plans for the construction of the Tower Facilities
("Plans") and specifications for the construction of (the "Specifications") the
Tower Facilities, Carrier shall deliver to Tower Company the Plans and
Specifications for the Tower Facilities within five (5) days of the complete
execution of the Assignment. In the event that Tower Company does not approve
the Plans and Specifications or modifies the Plans and Specifications, Tower
Company shall deliver detailed written objections to the Plans and
Specifications within ten (10) days of the receipt of the Plans and
Specifications or Tower Company shall prepare and
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deliver to Carrier for approval by Carrier three (3) copies of any modifications
to the Plans and Specifications. Any modifications to the Plans and
Specifications for each Tower Facility shall be delivered to Carrier within
thirty (30) days of the delivery of the Plans and Specifications to Tower
Company. If no objection or modified Plans and Specifications are delivered to
Carrier within the above-referenced time periods, the Plans and Specifications
shall be deemed approved. Within ten (10) days after receipt of the modified
Plans and Specifications, Carrier shall approve such modified Plans and
Specification or deliver to Tower Company detailed written objections thereto.
If Carrier fails to either affirmatively approve or disapprove the modifications
to the Plans and Specifications proposed by Tower Company within the ten (10)
day period, Carrier shall be deemed to have effectively approved the Plans and
Specifications.
(b) In the event that Carrier has not obtained Plans and
Specifications for the Tower Facility, Tower Company shall have Plans and
Specifications for the Tower Facility prepared, designed and delivered to
Carrier fourteen (14) business days prior to the date that the Tower Company and
Carrier have agreed that the building permits and Pre-Development Information
must be delivered to the Carrier in Attachment VI. Within five (5) business days
of receipt of the Plans and Specifications, Carrier shall approve the Plans and
Specifications or deliver to Tower Company detailed objections thereto. If
Carrier does not affirmatively approve or disapprove the Plans and
Specifications within such five (5) business day period, Carrier shall be deemed
to have approved the Plans and Specifications.
(c) Notwithstanding the foregoing, in the event that any federal,
state or local governmental body, requires Tower Company or Carrier to modify
the Plans and Specifications to obtain a Governmental Approval, Carrier or Tower
Company may modify the Plans and Specifications provided that the other party
approves such modification, such approval not to be unreasonably withheld,
delayed or conditioned.
3.3. PRE-DEVELOPMENT COSTS. Tower Company shall reimburse Carrier for
the Pre-Development Costs as specified in Attachment VI.
3.4. COMMENCEMENT OF CONSTRUCTION. Tower Company shall commence
construction of the Tower Facility within fifteen (15) days of the availability
of the building permit for the Applicable Tower Site. Tower Company shall
complete construction of each individual Tower Facility within forty-five (45)
days after the availability of the building permit for the Applicable Tower
Site. Tower Company shall have no obligation to commence construction of the
Tower Facilities unless and until a SLA has been executed by Carrier for that
Tower Site. The commencement of construction and the completion of construction
of each Tower Facility shall be subject to delays from substantial labor
disputes, fire, unusual delay in deliveries not caused by or contributed to by
Tower Company or its contractors, abnormal adverse weather conditions not
reasonably anticipated, or government actions or inactions not caused or
contributed to by Tower Company, or other unavoidable casualties or similar
causes beyond reasonable control of Tower Company or Tower Company's contractor
or for time needed to perform additional construction covered by any change
order requested by Carrier. Notwithstanding the foregoing, Carrier and Tower
Company may negotiate and agree upon a different schedule for the completion of
the Tower Facilities in each Carrier Market pursuant to and part of a Schedule
attached hereto as a Schedule attached to Attachment "VI".
3.5. SELECTION OF CONTRACTOR. Prior to the commencement of construction
of a Tower Facility under this Agreement, Tower Company shall provide Carrier
with the names of the contractors it proposes to use for the construction of the
Tower Facility. Carrier may, within five (5) business days of
10
receipt of this information, object to the use of a specific contractor on a
Tower Facility on a commercially reasonable basis.
3.6. MANNER OF CONSTRUCTION. (a) Tower Company represents, warrants and
agrees that the Tower Facilities shall be constructed in a good and workmanlike
manner and in accordance with the Plans and Specifications and all applicable
federal, state and local laws, ordinances, rules and regulations and shall be of
good quality, free from faults and patent defects. Tower Company warrants to
Carrier that all materials furnished in connection with the construction of the
Tower Facilities will be new unless otherwise specified, and reasonably believes
to be good quality, and that such construction will be of good quality in
accordance with industry standards, free from faults and patent defects. The
warranties set forth in this Paragraph 3.6 (a) shall be effective for one (1)
year commencing on the date that Carrier accepts the Tower Facilities as
complete pursuant to this Agreement.
(b) Tower Company shall supervise and direct the work on the Tower
Facilities (the "Work"), using Tower Company's professional skill and attention.
Tower Company shall be solely responsible for and have control over construction
means, methods, techniques, sequences and procedures and for coordinating all
portions of the Work on the Tower Facilities under this Agreement.
(c) Unless otherwise provided in this Agreement, Tower Company
shall provide and pay for labor, materials, equipment, tools, construction
equipment and machinery, water, heat, utilities, transportation, and other
facilities and services necessary for the proper execution and completion of the
Work, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Work.
(d) Tower Company shall enforce strict discipline and good order
among the employees and other persons carrying out this Agreement. Tower Company
shall employ people Tower Company reasonably believes to be fit and skilled in
tasks assigned to them.
(e) Tower Company shall pay sales, consumer, use, and other
similar taxes regarding the Tower Facilities, the construction and leasing
thereof, and shall secure and pay for any permits and governmental fees,
licenses and inspections necessary for proper execution and completion of the
Work. Carrier shall pay any taxes due in connection with the Rent (as
hereinafter defined) to the extent that such taxes do not exceed ten percent
(10%) of the base Rent provided for hereunder (excluding any fees or expenses
which may be construed as or defined as Additional Rent).
(f) Tower Company shall keep the Tower Facilities and surrounding
area free from accumulation of waste materials or rubbish caused by operations
under this Agreement. At completion of the work Tower Company shall remove from
and about the Tower Facilities waste materials, rubbish, tools, construction
equipment, machinery and surplus materials.
(g) Tower Company shall provide Carrier (and its employees, agents
and contractors) access to the Work in preparation and progress wherever
located, provided that such access shall not interfere with the Work.
(h) Tower Company shall pay all royalties and license fees with
respect to the Work; shall defend suits or claims for infringement of patent
rights and shall hold Carrier harmless from loss on account thereof in
connection with the Work, but shall not be responsible for such defense or loss
when a particular design, process or product of a particular manufacturer or
manufacturers is required by Carrier unless Tower Company has reason to believe
that there is an infringement of patent.
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(i) Tower Company shall be responsible for initiating, maintaining
and supervising all safety precautions and programs in connection with the
performance of the Agreement. Tower Company shall take reasonable precautions
for safety of, and shall provide reasonable protection to prevent damage, injury
or loss to:
(1) employees on the Work, the Tower Facilities or the
Property and other persons who may be affected thereby;
(2) the Work, the Tower Facilities, the Property and
materials and equipment to be incorporated therein; and
(3) other property at the Property or adjacent thereto.
3.7. NO LIENS. Tower Company shall not cause or allow (which shall mean
any occurrence or item which is within the Tower Company's control) any
involuntary liens or encumbrances to be recorded against the Tower Facilities,
including without limitation, liens and encumbrances (a) arising out of or
related to the performance of the construction, all liens and encumbrances of
any contractor, subcontractor, laborer, mechanic or materialman for labor
performed or material furnished in connection with the performance of the
construction; (b) liens or encumbrances arising from taxes or assessments,
except for liens for taxes or assessments which are not yet due and payable; or
(c) liens or encumbrances which may materially adversely impair Carrier's
interest. In the event any such lien or encumbrance is recorded against all or
any part of the Tower Facilities, Tower Company shall, within thirty (30) days
after its receipt of notice that such a lien or encumbrance has been recorded,
either (a) have such lien or encumbrance released of record, or (b) deliver to
Carrier a bond, in form, content and amount, and issued by a surety, reasonably
satisfactory to Carrier, indemnifying Carrier against all costs and liabilities
resulting from such lien or encumbrance. Upon the delivery to Carrier of the
bond specified in alternative (b) above, Tower Company may contest the validity,
of such lien or encumbrance. Once such a lien or encumbrance is released of
record, for any reason, any bond provided to Carrier hereunder shall be released
and returned to Tower Company. Notwithstanding the foregoing, Tower Company may
encumber the Tower Facilities with a lien or mortgage as surety for construction
or permanent financing, provided that such lender or holder enters into a
reasonably satisfactory non-disturbance agreement with Carrier.
3.8. NOTIFICATION OF COMPLETION. Tower Company shall notify Carrier of
the date when the Tower Facilities have been substantially completed by delivery
of a notice in substantially the same form attached hereto as Attachment "VII"
("Notice of Completion"). Carrier will inspect the Tower Facilities within three
(3) business days of the receipt of Tower Company's notice that the Tower
Facilities are complete. Within three (3) business days of inspection, Carrier
will either provide a signed writing evidencing final acceptance of the
construction and installation of the Tower Facilities or, through the use of a
punch list form, advise Tower Company of the portions of the Tower Facilities
that are defective or incomplete or of obligations that have not been fulfilled
but are required for final acceptance. Any failure of Carrier to complete such
inspection or punch list within such three (3) day periods shall not constitute
an Event of Default under the terms of this Agreement or any SLA, but in such
event the completion dates for installation of the Tower Facilities in this
Agreement or any Schedule attached to Attachment VI shall be extended
automatically an additional day for each day beyond the three (3) day period
that Carrier delays such inspection and/or punch list. In the event that Carrier
does submit a Punch List to Tower Company, Tower Company shall complete and
correct all items on the Punch List within ten (10) days after delivery of the
Punch List, subject to an extension as needed for completion if Tower Company
has made diligent efforts to cure the Punch List items within the ten (10) day
period, and was unable to
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complete the Punch List items for reasons beyond the reasonable control of Tower
Company. Carrier shall not be deemed to have accepted the Tower Facilities as
complete until completion of all items on the Punch List.
3.9. IMPROVEMENTS BY CARRIER. Carrier shall be responsible for
procuring any and all permits and approvals from any and all federal, state or
local governmental agencies which may be required for the installation or
operation of Carrier's Equipment on the Tower Facilities for each Site. Subject
to the provisions of Paragraph 4.12, Carrier shall submit plans and
specifications for the proposed installation of Carrier's Equipment to Tower
Company for Tower Company's approval which depicts the location and manner of
attachment of Carrier's Equipment to the Premises prior to completion of the
final architectural and engineering drawings of the Tower Facilities; and (b)
Carrier shall be responsible for the delivery of Carrier's Equipment to the
Applicable Tower Site at Carrier's cost; and (c) Carrier shall be responsible
for connecting Carrier's Equipment to utilities which have been extended to the
Premises by Tower Company; and (d) Carrier shall provide at Carrier's sole cost
and expense, Carrier's Equipment and all materials and equipment for the
construction, installation, operation, maintenance and repair of Carrier's
Equipment and (e) Carrier shall be responsible for the installation of Carrier's
Equipment upon the Tower Facilities unless otherwise provided herein or in the
Attachments, Assignment or SLA. Carrier shall not construct or install any
equipment or improvements onto the Premises other than those which are described
in the SLA or alter the radio frequency of operation of Carrier's Equipment
without first obtaining the prior consent of Tower Company which consent shall
not be unreasonably withheld, delayed or conditioned. Notwithstanding the
foregoing, subject to paragraph 4.13, so long as Carrier obtains Tower Company's
prior written approval, which approval shall not be unreasonably withheld,
delayed, or conditioned, Carrier shall have the right to make alterations to the
Premises and Carrier Equipment so long as Carrier does not increase the area of
space upon the Tower Facilities or the ground space upon the Site, increase the
wind or structural load upon the Tower Facility or create radio frequency
interference which materially interferes with the equipment or network of other
users who have a written contractual agreement with Tower Company for the
location of equipment upon the Tower Facilities. Upon Carrier's request for
Tower Company's consent to an alteration, Carrier shall provide to Tower Company
(i) a description of the proposed alteration, (ii) plans and specifications if
reasonably requested by Tower Company and, (iii) an intermodulation study report
evidencing that the proposed alteration will not create material radio frequency
interference with the equipment of other users who have commenced rental
payments under a written contractual agreement with Tower Company and have
placed their equipment upon the Tower Facility upon the Applicable Tower Site or
are scheduled to place their equipment upon the Tower Facility upon the
Applicable Tower Site within sixty (60) days of such request.
3.10. COMPLIANCE WITH GOVERNMENTAL RULES. All work required to be
performed by Carrier or Carrier's employees, contractors or agents shall be made
in a good and workmanlike manner. Tower Company shall be entitled to require
substantial compliance with the plans and specifications approved by Tower
Company pursuant to paragraph 3.9 including specifications for the grounding of
Carrier's equipment and antennas. All construction, installations and operations
in connection with this Master Lease by Carrier shall meet with all applicable
rules and regulations of the FCC, and all applicable codes and regulations of
the city, county, and state concerned. Carrier's use of contractors at an
Applicable Tower Site shall be subject to the prior written consent of Tower
Company, which consent shall not be unreasonably withheld, delayed or
conditioned. Prior to the commencement of any work at an Applicable Tower Site,
Carrier shall provide Tower Company with the names of the contractors it
proposes to use for the work. Tower Company may, within three (3) business days
of receipt of this information, object to the use of a specific contractor on a
commercially reasonable basis.
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IV. LEASE OF THE PREMISES
4.1. PREMISES. Carrier may install, maintain, operate and remove all or
portion of Carrier's Equipment on the Tower Facilities, at the heights and in
those locations designated in an SLA upon the Property. The terms and conditions
of this Master Lease shall be incorporated into each SLA and the terms and
conditions of each SLA shall be governed by the terms, covenants and conditions
of this Master Lease as though set forth in the SLA word for word. The SLA for
each Site shall be in substantially the same form as that attached hereto as
Attachment "IV". The SLA shall be executed by Carrier and Tower Company and
shall incorporate by reference information about the Site including but not
limited to the legal description of the Premises and the Property which is the
subject of the Ground Lease, the legal description of the Easements, a
description of Carrier's Equipment, and a mounting height of the antennas in the
instance of a Tower Facility or other structure. In no event shall Carrier's
Equipment exceed or deviate from the equipment described in the SLA without the
prior written consent of Tower Company which consent shall not be unreasonably
withheld, delayed or conditioned, provided however, Tower Company and Carrier
acknowledge and agree that so long as Tower Company approves any substituted,
additional, altered, modified, replaced or upgraded equipment, which approval
shall not be unreasonably withheld, delayed or conditioned and any substituted,
additional, altered, modified, replaced or upgraded equipment does not increase
the wind load or structural burden upon the Tower Facilities, does not increase
the space upon the Tower Facilities or the ground space upon the Site, and does
not create any technical or radio frequency interference which materially
interferes with the equipment or network of other users who are then located
upon the Tower Facilities (or scheduled to be located upon the Tower Facilities
at the Applicable Tower Site within sixty (60) days of such request) who have a
written contractual agreement with Tower Company for the location of equipment
upon the Tower Facilities at the time of the request for such substitution,
addition, alteration, modification, replacement or upgrade, Carrier may
substitute, add, alter, modify, replace or upgrade Carrier's Equipment described
in the SLA upon the Tower Facilities. Upon Carrier's request for Tower Company's
consent to a substitution, addition, alteration, modification, replacement or
upgrade, Carrier shall provide to Tower Company (i) a description of the
proposed substitution, addition, alteration, modification, replacement or
upgrade, (ii) plans and specifications if reasonably requested by Tower Company
and, (iii) an intermodulation study report evidencing that the proposed
substitution, addition, alteration, modification, replacement or upgrade will
not create radio frequency interference which materially interferes with the
equipment or network of other users who have a written contractual agreement
with Tower Company and have placed their equipment upon the Tower Facility upon
the Applicable Tower Site or are scheduled to place their equipment upon the
Tower Facility upon the Applicable Tower Site within sixty (60) days of such
request.
4.2. USE. Subject to the provisions of Paragraph 3.9, Carrier may use
the Premises for (i) the transmission and reception of wireless communications
signals from the Carrier's Equipment, (ii) the construction, alteration,
maintenance, replacement, repair, and upgrade of the Carrier's Equipment at
Carrier's sole cost and expense subject to the covenants in Paragraph 4.1 of
this Master Lease requiring Tower Company's consent in certain instances and
prohibiting the increasing of space upon the Tower Facilities or the ground
space upon the Site, interference and wind load and structural burden, and (iii)
incidental activities related to any of the foregoing. The use of any Tower
Facility granted Carrier by this Master Lease shall be non-exclusive, but it
shall be limited in strict accordance with this Master Lease. Tower Company
shall have the right to enter into lease and license agreements with others
relating to the Tower Facility in the reasonable discretion of Tower Company
subject to the covenants, terms and conditions of this Master Lease including,
without limitation, covenants prohibiting material interference with Carrier's
Equipment found in paragraph 4.13 of this Master Lease. Carrier will have
reasonable right of access to the tower where Carrier Equipment is located,
provided that Carrier must give twenty-four
14
(24) hours prior notice. Carrier will have unrestricted access twenty-four (24)
hours a day seven (7) days a week to its ground space. In the event of an
emergency situation which poses an immediate threat of substantial harm or
damage to persons and/or property (including the continued operations of
Carrier's Equipment) which requires ascension of the tower, Carrier may ascend
same and take the actions that are required to protect individuals or personal
property from the immediate threat of substantial harm or damage, provided that
promptly after the emergency entry and in no event later than twenty-four (24)
hours, Carrier gives Tower Company telephonic and written notice of Carrier's
ascension of the tower. Tower Company's prior written approval is necessary for
access of an Applicable Tower Site by any non-Carrier personnel, such approval
not to be unreasonably withheld, delayed or conditioned. Tower Company hereby
approves access by Applicable Tower Sites by the non-Carrier personnel listed on
Attachment IX, subject to entry notice requirements under this paragraph 4.2.
4.3. INITIAL TERM OF MASTER LEASE. The Term of this Master Lease shall
be for a period of five (5) years from the date of this Master Lease. The Master
Lease shall automatically renew for four (4) additional terms of five (5) years
each unless Tower Company or Carrier notifies the other party of its intention
not to renew this Master Lease at least six (6) months prior to the end of the
then existing term or Renewal Term of this Master Lease. The terms and
conditions of the Master Lease which are applicable to each SLA shall remain in
force and continue to apply until the termination or expiration of the
applicable SLA even if the Master Lease is terminated or not renewed.
4.4. INITIAL TERM OF SLAS. The initial term of the SLA for each Tower
Facility shall be for a period of five (5) years commencing on the Commencement
Date and expiring on the fifth (5) anniversary of the Commencement Date
("Initial Term"). Carrier and Tower Company shall execute a letter agreement in
substantially the form of Attachment "VIII", which shall be attached to each SLA
confirming the calendar date which the parties acknowledge and agree is the
Commencement Date for each SLA.
4.5. RENEWAL TERMS FOR SLA. Carrier shall have the right to extend each
SLA for four (4) additional period(s) of five (5) years each ("Renewal Terms"),
provided that Carrier is not in default under the applicable SLA at the time
Carrier provides Tower Company with its renewal notice or on the first day of
the renewal period. Carrier shall provide Tower Company written notice of
Carrier's intent to renew any SLA not less than one hundred twenty (120) days
prior to the end of the then existing term. Each Renewal Term shall be on the
same terms and conditions as set forth in this Master Lease except that Rent
shall accrue in the manner described on Attachment VI and insurance requirements
shall increase in accordance with paragraph 4.17 of this Master Lease.
4.6. QUIET ENJOYMENT. Tower Company represents and warrants that
Carrier shall have the quiet enjoyment of the Premises throughout the term of
the SLA, without threat of hindrance, ejection or molestation, subject to
Carrier's fulfillment of the terms and conditions of this Master Lease and the
applicable SLA, title exceptions disclosed to Carrier as part of the
Pre-Development Materials, and condemnation proceedings.
4.7. GROUND LEASE. (a) Tower Company covenants that it shall not commit
any act which would result in a default, non-renewal or nonconformance of the
Ground Lease beyond any applicable notice or grace period. The SLA shall be
subject to the continued existence and enforceability of the Ground Lease,
provided, however, any termination or expiration of the Ground Lease which
occurs as a result of any default, non-renewal or non-conformance by Tower
Company under the terms of the Ground Lease, without the prior written consent
of Carrier, shall be construed as an event of default under the terms of the
SLA.
15
(b) In the event that the Ground Lease requires the Ground Lessor
to consent to the making of the applicable SLA, it shall be a condition
precedent to the effectiveness of the SLA that Tower Company obtains such
consent. The form and content of such consent shall be subject to Carrier's
approval, not to be unreasonably withheld, delayed or conditioned.
(c) In the event that Tower Company loses its possessory right to
a Site because of a termination or expiration of a Ground Lease which occurs
during the term or any renewal term of the Ground Lease and not at or beyond the
final renewal term if all renewal terms were exercised hereunder (including any
agreed upon extension), Tower Company hereby grants to Carrier the option to
purchase the Tower Facilities on the applicable Site (and any accessories,
accessions, attachments, fixtures or other equipment in connection therewith,
etc., including without limitation storage buildings and fences) for the fair
market value of the Tower Facilities (and such accessories, accessions,
attachments, fixtures, equipment, etc.) such fair market value to be measured as
though the Tower Facilities were to continue operation at the Tower Site. Such
right and agreement does not waive any requirement or covenant that Tower
Company must maintain the Site Lease in full force and effect and shall not
commit any act which would result in a non-renewal, default or nonconformance of
the Ground Lease beyond any applicable notice or grace period.
(d) Tower Company agrees to use reasonable efforts to deliver a
nondisturbance and attornment agreement with the Ground Lessor for Carrier's
continued possession of the Premises under the applicable SLA and/or the
assumption and/or assignment of the Ground Lease to Carrier in the event that
Tower Company elects to terminate the Ground Lease. Carrier acknowledges and
agrees that the language provided in paragraph 5 of the Estoppel Certificate
attached hereto as Attachment III will be sufficient to comply with the
requirements of this provision. This provision shall not imply that Carrier
consents to the expiration or termination of the Ground Lease by Tower Company.
(e) RIGHT OF FIRST REFUSAL. (i) In the event that Tower Company
receives a bona fide arms length offer pursuant to which an independent
non-affiliated third party (the "Third Party") would enter into a sublease,
license or other occupancy agreement with respect to a portion of the Tower
Facilities below the height specified by Carrier at the time Carrier and Tower
Company executed an SLA, and Tower Company intends to accept such offer, Tower
Company shall send written notice (the "Right of First Refusal Notice") to
Carrier offering to sublease the Right of First Refusal Space to Carrier for the
same rent and under the same terms and conditions as the aforementioned bona
fide offer (the "Right of First Refusal"). The Right of First Refusal Notice
shall specify the height at which the offeree intends to install its equipment
and the rent that it shall pay. Carrier shall have five (5) business days after
its Receipt of the Fight of First Refusal Notice to give Tower Company written
notice of its intent to exercise the Right of First Refusal. If Carrier does not
give Tower Company written notice of its intent to exercise the Right of First
Refusal within five (5) business days, Carrier's right to exercise the Right of
First Refusal terminates as to that specific tenant and offer. Tower Company may
then sublease or license such space to the Third Party.
(ii) In the event Tower Company constructs a Tower Facility higher
than the height specified by Carrier at the time when Carrier and Tower
Company execute an SLA, Tower Company shall send Carrier a written
notice specifying the height of the Tower Facilities and offering
Carrier the right to locate Carrier Equipment at a different height
upon the Tower Facilities and Carrier shall have the right to locate
Carrier Equipment at any level upon the Tower Facilities upon the same
terms and conditions of the original SLA (the "Additional Height Right
of First Refusal"). Carrier shall have five (5) days after its receipt
of the notice, to notify Tower
16
Company of its desire to locate its equipment at a height different
from which it originally specified and that it shall exercise the
Additional Height Right of First Refusal.
(iii) Tower Company and Carrier shall enter into and execute a
modification of the original SLA and memorandum of SLA to evidence the
modification of the height of Carrier Equipment upon the Tower
Facilities within thirty (30) days of the date that Carrier gives Tower
Company notice that it exercised the Right of First Refusal or the
Additional Height Right of First Refusal.
4.8. RENT. As consideration for the use and occupancy of the Premises
under any SLA, Carrier shall pay Tower Company rent as shown on Attachment "VI"
("Rent").
4.9. CARRIER'S EQUIPMENT. Carrier's Equipment shall remain Carrier's
exclusive personal property throughout the term and upon termination of the SLA.
Carrier shall have the right to remove all Carrier's Equipment at Carrier's sole
cost and expense on or before the expiration or earlier termination of the SLA,
and Carrier will restore the Premises and the Tower Facilities to the condition
existing on the Commencement Date of the applicable SLA, except for ordinary
wear and tear and insured casualty loss and will repair any damage to the
Premises, the Property or the Tower Facilities caused by such removal, provided
that Carrier shall not be obligated to remove any pads, utilities or similar
permanent fixtures. Tower Company and Tower Company's agents shall have the
right to enter the Premises and the Tower Facility located upon the Premises at
reasonable times for the purpose of inspecting the same. In the event that
Carrier fails to remove Carrier's Equipment from the Premises on or before the
expiration or earlier termination of the SLA, Carrier's Equipment will be
subject to disconnection, removal and storage by Tower Company at Carrier's
reasonable cost. If Carrier's Equipment remains on the Premises after the
expiration or earlier termination of the SLA, or if Tower Company removes such
equipment from the Tower Site, for so long as Tower Company stores such
equipment, Carrier will pay Tower Company a holdover fee of [CONFIDENTIAL
TREATMENT REQUESTED] of the then-effective monthly rent under the SLA, prorated
from the effective day of termination or expiration to the date Carrier's
Equipment is removed from the Premises.
4.10. MECHANICS' LIENS. Carrier shall not cause or allow (which shall
mean any occurrence or item which is within the Carrier's control) any
involuntary liens or encumbrances to be recorded against the Tower Facilities or
Carrier's Equipment, including without limitation, liens or encumbrances (a)
arising out of or related to the performance of the construction, installation
or operation of the Carrier's Equipment, all liens and other encumbrances of any
contractor, subcontractor, laborer, mechanic or materialman for labor performed
or material furnished in connection with the performance of the construction;
(b) liens or encumbrances arising from taxes or assessments, except for lien or
encumbrances for taxes or assessments which are not yet due and payable; or (c)
liens or encumbrances which may materially adversely impair Tower Company's
interest. In the event any such lien or encumbrance is recorded against all or
any part of the Tower Facilities, Carrier shall, within thirty (30) days after
its receipt of notice that such a lien or encumbrance has been recorded, either
(a) have such lien or encumbrance released of record, or (b) deliver to Tower
Company a bond or letter of credit, in form, content and amount, and issued by a
surety, reasonably satisfactory to Tower Company, indemnifying Tower Company
against all costs and liabilities resulting from such lien or encumbrance. Upon
the delivery to Tower Company of the bond or letter of credit specified in
alternative (b) above, Carrier may contest the validity of such lien or
encumbrance. Once such a lien or encumbrance is released of record, for any
reason, any bond or letter of credit provided to Tower Company hereunder shall
be released and returned to Carrier. Notwithstanding the foregoing, Carrier may
encumber the Carrier Equipment with a
17
lien or encumbrance or mortgage as surety for construction or permanent
financing, provided that such lender or holder enters into a reasonably
satisfactory non-disturbance agreement with Tower Company.
4.11. MAINTENANCE AND REPAIRS.
(a) Carrier shall perform all repairs necessary or appropriate to
Carrier's Equipment to maintain Carrier's Equipment in a good and tenantable
condition, reasonable wear and tear, damage by fire, the elements or other
casualty excepted. Damage to Carrier's Equipment resulting from the acts or
omissions of Tower Company shall be repaired by Carrier at Tower Company's cost
and expense. Tower Company shall reimburse Carrier for the actual reasonable
costs incurred as evidenced by adequate documentation by Carrier in repairing
such damage or replacing Carrier's Equipment.
(b) Tower Company shall maintain the Tower Facilities, the Site,
the Easements, and portions of the Property other than Carrier's Equipment (i)
in good order and repair, wear and tear, damage by fire, the elements or other
casualty excepted; and (ii) in such condition that the Tower Facilities and the
Property are required to be maintained by Tower Company pursuant to the Ground
Lease; and (iii) in compliance with all rules, laws, regulations and orders of
any governmental entity. Damage to the Site, Easements, Property or property
surrounding the Property, Tower Facilities or the equipment or improvements of
Tower Company or others located on the Property or the Tower Facilities, which
results from the acts or omissions of Carrier shall be repaired by Carrier at
Carrier's cost and expense, or at the option of Tower Company, Carrier shall
reimburse Tower Company for the actual reasonable costs incurred by Tower
Company in repairing such damage or replacing such equipment or improvements as
evidenced by adequate documentation. Notwithstanding the foregoing or other
provisions in this Master Lease to the contrary, Tower Company may delegate its
obligations to maintain or repair the Tower Facilities to another company
provided that such delegation does not increase the costs of said services over
and above that which would have been charged by Tower Company, that such company
to whom the obligations are delegated complies with all the terms and provisions
of this Agreement, and provided that such delegation does not in effect,
delegate all or a substantial portion of Tower Company's obligations under this
Agreement and further provided that such company or companies complies with and
is required to comply with all the terms, conditions, covenants, warranties and
representations under this Agreement.
(c) Tower Company assumes no responsibility for the licensing,
operation and maintenance of Carrier's Equipment.
4.12. UTILITIES. Carrier shall be solely responsible for the payment of
utility charges including connection charges and security deposits incurred in
association with Carrier's Equipment. Carrier will be responsible for setting up
their account for ongoing power usage. Tower Company will be responsible for
bringing in and connecting power to the Tower Site, including without
limitation, the installation of the meter, the base, conduits and the primary
power run from the nearest utility pole. Carrier will coordinate with the
utility companies for the meter for the Carrier Equipment. Tower Company shall
provide and install telephone conduits inside the compound of the Tower
Facility. Carrier will order T-1 circuits for the Tower Site. Tower Company will
coordinate the telephone copper punch block and/or the telephone pedestal. Any
fiber facilities will be the responsibility of Carrier. Carrier, at Carrier's
expense, may install or improve existing utilities servicing the Tower Facility
and may install an electrical grounding system or improve or connect to any
existing electrical grounding system to provide the greatest possible protection
from lightning damage to the Tower Facility. In addition thereto, Carrier may
connect its utilities to any emergency generator or similar emergency power
source which Tower Company may have at the Tower Site or the Property for a fee
to be mutually agreed upon by Carrier and Tower Company.
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Tower Company, at Carrier's expense, shall assist Carrier in obtaining any
utility services necessary to service Carrier Equipment including, without
limitation, any meters, telephone lines or services to the Premises.
4.13. INTERFERENCE AND MAXIMUM PERMISSIBLE EXPOSURE.
(a) BY OTHER OCCUPANTS. Tower Company may enter into sublease or
license agreements with other companies for the Tower Facilities which are the
subject of this Master Lease, provided that Tower Company shall require such
sublessee or licensee to install equipment of types and frequencies that will
not cause material interference to Carrier's communications operations then
being conducted from the Premises and subject to the provisions of this Master
Lease. Tower Company agrees that in the event such sublessee or licensee causes
material interference with Carrier's Equipment, Tower Company will require such
sublessee or licensee to take all steps necessary to correct and eliminate the
material interference. If such material interference cannot be eliminated within
five (5) business days after receipt by Tower Company of notice from Carrier of
the existence of material interference, Tower Company shall take such actions as
are permitted by law and can be conducted without breach of the peace such as
causing such sublessee or licensee to disconnect the electric power and shut
down such sublessee's or licensee's equipment (except for intermittent operation
for the purpose of testing, after performing maintenance, repair, modification,
replacement, or other action taken for the purpose of correcting such
interference) until such material interference is corrected. If such material
interference is not rectified to the reasonable satisfaction of Carrier within
sixty (60) days after receipt by Tower Company of such prior notice from Carrier
of the existence of material interference, Tower Company shall cause such
sublessee or licensee to remove such sublessee's or licensee's antennas and
equipment from the Tower Facilities. Tower Company agrees to provide Carrier
with notice of the status of the situation within thirty days of Tower Company's
receipt of notice from Carrier of the existence of material interference.
Carrier agrees to cooperate with Tower Company and the other Tower Facility
subtenants to identify and remedy interference, provided that such cooperation
does not result in or incur any additional expense upon Carrier.
(b) BY CARRIER. In no event shall Carrier alter the operations of
Carrier's Equipment or replace, upgrade or otherwise modify the operations of
Carrier's Equipment in a manner which will cause material interference with the
operations of any other equipment which is then in existence on the Tower and
for which Tower Company has a written contractual agreement with an independent
bona fide third party who has commenced rental payments under a written
contractual agreement with Tower Company and has placed their equipment upon the
Tower Facility upon the Applicable Tower Site or are scheduled to place their
equipment upon the Tower Facility upon the Applicable Tower Site within sixty
(60) days of such request. Carrier agrees that in the event Carrier's Equipment
causes material interference with any existing equipment upon the Tower
Facilities which was placed upon the Tower Facilities prior to the installation
of any modifications to Carrier Equipment upon the Tower Facilities, Carrier
will take all steps necessary to correct and eliminate the material
interference. If such material interference cannot be eliminated within five (5)
business days after receipt by Carrier from Tower Company of notice of the
existence of material interference, Carrier shall cease operation of Carrier's
Equipment (except for intermittent operation for the purpose of testing, after
performing maintenance, repair, modification, replacement or other action taken
for the purpose of correcting such material interference) until such material
interference is corrected. If the material interference is not corrected within
the five (5) business day period, Tower Company may take such actions as are
permitted by law and can be conducted without breach of the peace such as
causing such Carrier to disconnect the electric power and shut down Carrier's
equipment (except for intermittent operation for the purpose of testing, after
performing maintenance, repair, modification, replacement, or other action taken
for the purpose of
19
correcting such material interference) until such material interference is
corrected. Carrier covenants that Carrier's Equipment shall be operated in
compliance with all applicable federal state and local laws, ordinances and
regulations.
(c) MAXIMUM PERMISSIBLE EMISSIONS; COOPERATIVE EFFORTS. If antenna
power output ("RF Emissions") becomes subject to any restrictions imposed by the
FCC or any other government agency for RF Emissions standards on MTE limits, or
if the Tower Facilities otherwise become subject to federal, state or local
rules, regulations, restrictions or ordinances, Carrier shall comply with Tower
Company's reasonable requests for modifications to Carrier's Equipment which are
reasonably necessary for Tower Company to comply with such limits, rules,
regulations, restrictions or ordinances. The RF Emissions requirements of
Carrier shall be subordinate to any prior users of the Tower Facilities.
Similarly, the RF Emissions of users subsequent to Carrier shall become
subordinate to any requirements of Carrier. If Tower Company or Carrier
reasonably require an engineering evaluation or other power density study be
performed to evaluate RF Emissions compliance with MPE limits, then all
reasonable costs of such an evaluation or study shall be shared equally between
Tower Company, Carrier, and any other users of the Tower Facilities. If said
study indicates that RF Emissions at the Tower Facility do not comply with NPE
limits, then Tower Company, Carrier, and subsequent tenants shall immediately
take any steps necessary to ensure that they are individually in compliance with
such limits or shall at the demand of Tower Company cease operations until a
maintenance program or other mitigating measures can be implemented to comply
with MPE. Carrier shall have the right, without waiving any other rights or
remedies, to terminate the SLA applicable to any such Site in the event that
such mitigation measures cannot be implemented without materially adversely
affecting the operation of Carrier Equipment.
(d) SIGNAGE REGARDING MPE. Carrier acknowledges and understands
that Tower Company may install certain signage and/or physical barriers
pertaining to radio frequency exposure from transmitters and other equipment
located upon the Tower Facilities. Tower Company and Carrier shall instruct all
of their personnel and their contractors performing work at the Tower
Facilities, the Property or the Premises, to read carefully all such signage, to
follow the instructions provided in such signage, and to honor all physical
barriers. Carrier shall be responsible for placement of signage or physical
barriers at or near Carrier Equipment and/or its cabinet or building at the
Premises in order to comply with applicable FCC radio frequency exposure
guidelines. Tower Company agrees that it shall cooperate with Carrier in these
efforts and that Tower Company shall instruct its personnel and contractors
performing work at the Property, the Tower Facilities and the Premises to read
carefully all such signage, to follow the instructions provided in such signage,
and to honor all physical barriers. In no event shall Tower Company's personnel
or contractors tamper with any such signage or barriers. Tower Company and
Carrier shall cooperate in good faith to minimize any confusion or unnecessary
duplication that could result from similar signage being posted respecting other
carriers' transmission equipment (if any) at or near the Premises, the Tower
Facilities and the Property.
(e) NOTICE. In order to facilitate the provisions of this Section,
and the remaining provisions of this Agreement, the Tower Company shall give
Carrier notice of any party who shall occupy the Tower Facilities which notice
may be delivered contemporaneously with and contained in the notices provided
for in 4.7(e).
4.14. TOWER MARKING AND LIGHTING REQUIREMENTS. Tower Company shall be
responsible for designing and maintaining the Tower Facilities to comply with
any applicable marking and lighting requirements imposed by the FAA and the FCC.
Tower Company shall be responsible for the replacement of bulbs and for the
repair of the tower lighting system.
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4.15. INDEMNIFICATION AND RISK OF LOSS.
(a) Carrier shall bear the risk of loss for Carrier's Equipment
for all reasons other than the negligent acts or omissions or intentional
misconduct of Tower Company or other subtenants at a Site.
(b) Carrier shall exonerate, hold harmless, indemnify, and defend
Tower Company from any and all claims, obligations, liabilities, costs, demands,
damages, expenses, suits or causes of action, including costs and reasonable
attorneys' fees, which may arise out of (i) any injury to or the death of any
person; or (ii) any damage to property, if such injury, death or damage arises
out of or is attributable to or results from Carrier's use and occupancy of the
Premises, Property or the Tower Facilities or the negligent or intentional acts
or omissions of Carrier or Carrier's principals, employees, agents or
independent contractors and such injury, death or damage is not contributed to
or caused by the acts or omissions of Tower Company or Tower Company's use,
operation or ownership of the Property or the Tower Facilities; and
(c) Tower Company shall exonerate, hold harmless, indemnify and
defend Carrier from any and all claims, obligations, liabilities, costs,
demands, damages, expenses, suits or causes of action, including costs and
reasonable attorneys' fees, which may arise out of (i) any injury to or the
death of any person; or (ii) any damage to property, if such injury, death or
damage arises out of or is attributable to or results from Tower Company's use,
operation or ownership of the Property or the Tower Facilities, or the negligent
or intentional acts or omissions of Tower Company or Tower Company's principals,
employees, agents or independent contractors, and such injury, death of damage
is not caused by or contributed to by the acts or omissions of Carrier or
Carrier's use or operation of the Tower Facilities or Property or its ownership
interest in the Premises.
4.16. ENVIRONMENTAL INDEMNIFICATION.
(a) Carrier, its heirs, grantees, successors, and assigns shall
indemnify, defend, reimburse and hold harmless Tower Company from and against
any and all environmental damages, caused by activities conducted on the
Premises by Carrier which result in or arise from (i) the presence of Hazardous
Materials upon, about or beneath the Premises or migrating to or from the
Premises which were introduced to the Premises by Carrier, or (ii) the violation
of any environmental requirements by Carrier pertaining to the Premises and any
activities thereon. Carrier covenants that it shall not nor shall Carrier allow
its employees, agents or independent contractors to treat, store or dispose of
any Hazardous Materials on the Premises or the Property in violation of any
applicable law.
(b) Tower Company, its heirs, grantees, successors, and assigns
shall indemnify, defend, reimburse and hold harmless Carrier from and against
any and all environmental damages, caused by activities conducted on the
Premises by Tower Company which result in or arise from (i) the presence of
Hazardous Materials upon, about or beneath the Premises or migrating to or from
the Premises which were introduced to the Premises by Tower Company, or (ii) the
violation of any environmental requirements by Tower Company pertaining to the
Premises and any activities thereon. Tower Company covenants that it shall not,
nor shall Tower Company allow its employees, agents or independent contractors
to treat, store or dispose of any Hazardous Materials on the Premises or the
Property in violation of any applicable law.
4.17. INSURANCE. (a) (i) Carrier shall procure and maintain during the
term of this Master Lease and commencing with the Assignment and during the term
of any applicable SLA the following
21
insurance : (A) comprehensive general liability insurance with a commercial
general liability endorsement having a minimum limit of liability of $1,000,000,
with a combined limit for bodily injury and/or property damage for any one
occurrence, and (B) excess/umbrella coverage of $2,000,000; and (C) Workers
Compensation Insurance and Employees' Liability Insurance for the statutory
limit, but in no event no less than One Million and No/100 Dollars
($1,000,000.00) and (iii) Carrier shall procure and maintain during the term of
this Master Lease and during the term of any applicable SLA the following
insurance: "All Risk" property insurance which insures Carrier's Equipment for
its full replacement cost; provided that the imposition of these limits of
insurance shall not limit the liability of Carrier hereunder. Tower Company, at
its option, may require Carrier to increase the amounts of the foregoing
insurance at the commencement of each Renewal Term of each SLA by a reasonable
amount over the amount of insurance provided herein in effect for the previous
Initial Term or Renewal Term.
(b) (i) Tower Company shall procure and maintain during the terms
of the Master Lease and commencing with the Assignment and during the term of
any applicable SLA, the following insurance: (A) comprehensive general liability
insurance with a general liability endorsement having a minimum limit of
liability of $1,000,000 with a combined limit for bodily injury and/or property
damage for any one occurrence; and (B) excess umbrella coverage of $2,000,000;
and (C) Workers Compensation Insurance and Employees' Liability Insurance for
the statutory limit, but in no event no less than One Million and No/ 100
Dollars ($1,000,000.00); and (ii) Tower Company shall procure and maintain
during the term of this Master Lease and during the term of any applicable SLA
the following insurance: "All Risk" property insurance which insures the Tower
Facilities and the Property for its full replacement cost; provided that the
imposition of these limits of insurance shall not limit the liability of Tower
Company hereunder. Carrier may, at its option, require Tower Company to increase
the amounts of the foregoing insurance at the commencement of each Renewal Term
of each SLA by a reasonable amount over the amount of insurance provided herein
in effect for the previous Initial Term or Renewal Term.
(c) Tower Company and any party holding a security interest in the
Tower Facilities which is identified to Carrier and any party holding a security
interest in Carrier's Equipment shall be named as an additional insured on any
insurance policy procured by Carrier pursuant to this Master Lease and Carrier
and any party holding a Security Interest in Carrier Equipment which is
identified to Tower Company, shall be named as an additional insured on any
insurance policy procured by Tower Company pursuant to this Master Lease.
4.18. SUBROGATION.
(a) IN GENERAL. All insurance policies required to be maintained
by Carrier and Tower Company under this Master Lease shall contain a waiver of
subrogation provision under the terms of which the insurance carrier waives all
of such carrier's rights to proceed against Tower Company or Carrier as may be
applicable, excluding workers compensation and employee liability insurance.
(b) MUTUAL RELEASE. Tower Company and Carrier each release the
other and their respective representatives from any claim by them or any one
claiming through or under them by way of subrogation or otherwise for damage to
any person or to the Premises, the Tower Facilities or the Property, and to the
fixtures, personal property, improvements and alterations in or on the Premises
that are caused by or result from risks insured against under any insurance
policy carried by them to the extent of such insurance, provided that such
releases shall be effective only if and to the extent that the same do not
diminish or adversely affect the coverage under such insurance policies.
22
4.19. DESTRUCTION OR CONDEMNATION.
(a) If the whole or any substantial part of the Premises, the
Tower Facilities or the Property shall be taken by any public authority under
the power of eminent domain, or if the whole or any substantial part of the
Premises, the Tower Facilities or the Property shall be destroyed by fire or
other casualty that is not caused by Carrier, so as to materially interfere with
Carrier's use and occupancy thereof, then, at the option of Carrier, the
applicable SLA shall cease on the part so taken on the date of possession by
such authority of that part, (or in the event that Carrier must remove Carrier's
Equipment prior to that date, the date Carrier must move Carrier's Equipment)
and any unearned rent paid in advance of such date shall be refunded by Tower
Company to Carrier within thirty (30) days of such possession, and Carrier shall
have the right to terminate the SLA upon written notice to Tower Company, which
notice shall be delivered by Carrier within thirty (30) days following the date
notice is received by Carrier of such taking or possession. If Carrier chooses
not to terminate the SLA, the rent shall be reduced or abated in proportion to
the actual reduction or abatement of Carrier's use of the Premises. In the event
of any taking, destruction or other casualty hereunder which prevents Carrier's
use and occupancy of the Premises and/or the Tower Facilities, subject to the
terms of the Ground Lease (including obtaining any necessary approvals
thereunder) Carrier shall have the option of placing a temporary communications
facility upon available space upon the Property (if any) for a period of up to
one year at a rate mutually agreeable to the parties. Carrier shall have first
right to any such available space and any other tenants, licensee, or occupants
of the Tower Site rights shall be subordinate to the rights of Carrier to such
available space.
(b) If the whole or any substantial part of the Premises, the
Tower Facilities or the Property shall be taken by any public authority under
the power of eminent domain, or if the whole or any substantial part of the
Premises, the Tower Facilities or the Property shall be destroyed by fire or
other casualty, so as to materially interfere with Tower Company's ability to
maintain and lease thereof, then, at the option of Tower Company, the applicable
SLA shall cease on the part so taken on the date of possession by such authority
of that part and any unearned rent paid in advance of such date shall be
refunded by Tower Company to Carrier within thirty (30) days of such possession,
and Tower Company shall have the right to terminate the SLA upon written notice
to Carrier, which notice shall be delivered by Tower Company within thirty (30)
days following the date notice is received by Tower Company of such taking or
possession. In the event of any taking, destruction or other casualty hereunder
which prevents Carrier's use and occupancy of the Premises and/or the Tower
Facilities, subject to the terms of the Ground Lease (including obtaining any
necessary approvals thereunder) Carrier shall have the option of placing a
temporary communications facility upon available space upon the Property (if
any) for a period of up to one year at a rate mutually agreeable to the parties.
Carrier shall have first right to any such available space and any other
tenants, licensee, or occupants of the Tower Site rights shall be subordinate to
the rights of Carrier to such available space.
4.20. DEFAULT. The occurrence of any of the following instances shall
be considered to be a default or a breach of the Applicable SLA and the Master
Lease as it may apply to the Applicable SLA (or in the event that events occur
which would constitute an event of default under the Master Lease, the Master
Lease) by Carrier:
(a) any failure of Carrier to pay Rent or any other charge for
which Carrier has the responsibility of payment under this Master Lease, or any
SLA, within fifteen (15) days of written notice thereof; or
23
(b) any failure of Carrier to perform or observe any term,
covenant, provision or conditions of this Master Lease, or any SLA, which
failure is not corrected or cured by Carrier within thirty (30) days of receipt
by Carrier of written notice from Tower Company of the existence of such a
default; except such thirty (30) day cure period shall be extended as reasonably
necessary to permit Carrier to complete a cure so long as Carrier commences the
cure within such thirty (30) day cure period and thereafter continuously and
diligently pursues and completes such cure, provided, however, that in the event
such default exposes Tower Company to immediate liability for damages, fines, or
penalties or causes of breach of any other agreement to which Tower Company is a
party, Carrier shall immediately remedy such condition or Tower Company shall be
entitled to remedy such condition at Carrier's reasonable cost and expense; or
(c) Carrier shall become bankrupt, insolvent or file a voluntary
petition in bankruptcy, have an involuntary petition in bankruptcy filed against
Carrier which is not dismissed within sixty (60) days of the date of the filing
of the involuntary petition, file for reorganization or arrange for the
appointment of a receiver or trustee in bankruptcy or reorganization of all or a
substantial portion of Carrier's assets, or Carrier makes an assignment for such
purposes for the benefit of creditors;
(d) this Master Lease or Carrier's interest herein or Carrier's
interest in the Premises are executed upon or attached and such execution or
attachment is not dismissed, released or removed within thirty (30) days of the
execution or attachment; or
(e) the imposition of any lien on the Property, the Premises, the
Tower Facilities, Carrier's Equipment except as may be expressly authorized by
this Master Lease, or an attempt by Carrier or anyone claiming through Carrier
to encumber Tower Company's interest in the Tower Facilities or the Property and
such lien or encumbrance is not dismissed, released or removed within thirty
(30) days of such imposition or attempt; or
(f) the abandonment of the Premises in the event that such
abandonment would cause the revocation or rescission of any Government Approvals
for the Tower Facilities and another carrier is located upon the Tower
Facilities and such abandonment is not cured within thirty (30) days of written
notice thereof.
Tower Company and Carrier understand and agree that a default by
Carrier under the terms of any SLA shall constitute a default under that
applicable SLA but shall not constitute a default under any other SLAs or this
Master Lease, and that Tower Company shall have the right but not the obligation
to those remedies afforded to Tower Company at law or in equity and under
paragraph 4.21 of this Master Lease for each Applicable Tower Site and the
applicable SLA, provided, however, that in the event that a default occurs under
(i) more than twenty-five percent (25%) of the SLAs in effect under this
Agreement at any single instance when at least thirty-two (32) SLAs have been
fully executed, or (ii) more than 8 Sites at any single instance when less than
thirty-two (32) SLAs have been fully executed, and such defaults are not cured
within the notice periods provided herein, the aggregate of such defaults shall
constitute a default under the terms of this Agreement and Tower Company shall
have the right but not the obligation to those remedies afforded to Tower
Company at law or in equity and/or by paragraph 4.21 for the Master Lease and
for all of the Sites and the SLAs which are subject to the Master Lease. If an
event of default occurs under Section 4.21(c), such event shall constitute a
default under the terms of this Agreement and Tower Company shall have the
rights, but not the obligation to those remedies afforded to Tower Company at
law or in equity and/or by Section 4.21 of the Master Lease and for all of the
Sites and SLAs which are subject of this Master Lease. The forbearance of Tower
Company to
24
exercise any remedies available to Tower Company shall not constitute a waiver
of the ability of Tower Company to exercise those remedies for the same or
subsequent defaults.
4.21. REMEDIES OF TOWER COMPANY. In the event of a default by Carrier
under the terms of paragraph 4.20 of this Master Lease and after Carrier's
failure to cure such default within the time allowed to cure such default, then
Tower Company may, in addition to all other rights or remedies that Tower
Company may have hereunder at law or in equity in regards to the Applicable
Tower Site and SLA;
(a) Terminate Carrier's right to possession of the Premises by any
lawful means, in which case the applicable SLA shall terminate and Carrier shall
immediately surrender possession of the Premises to Tower Company and Tower
Company may re-enter the Premises and take possession thereof and remove all
persons therefrom, and Carrier shall have no further claim to the Premises or
the Applicable Tower Site under this Master Lease. In the event of any such
termination, Tower Company shall also be entitled to recover from Carrier all
damages incurred by Tower Company by reason of Carrier's default or breach, and
shall have the right to set off such rents against amounts due to Tower Company
under any other SLA or any other agreement.
(b) Alternatively, Tower Company may expel Carrier from the
Premises without terminating the Applicable SLA, make such alterations and
repairs as which may be necessary in order to relet the Premises and may relet
the Premises or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Master Lease or the applicable SLA) and at
such rental or rentals and upon such other terms and conditions as Tower Company
in its discretion may deem advisable. Upon each such reletting all rentals and
other sums received by Tower Company from such reletting shall be applied to the
payment of any costs and expenses of such reletting and to the payment of rental
and other charges due and unpaid hereunder. If such rentals and other sums
received from such reletting during any month are less than that to be paid
during that month by Carrier hereunder, Carrier shall pay such deficiency to
Tower Company; if such rentals and sums shall be more, Carrier shall have no
right to the excess. Such deficiency shall be calculated and paid monthly.
(c) Additionally, Tower Company may cure such defaults itself and
collect the actual costs of such cure as an addition to the Rent due under the
applicable SLA, then as an addition to the rent due under any other SLAs,
provided however that Tower Company shall only be able to collect such rents
from any other SLAs or agreements if an event of default has been declared under
this Master Lease as a result of the occurrence of defaults under twenty-five
percent (25%) or more of the SLAs or eight (8) SLAs as provided under 4.20, such
remedies to be cumulative and concurrent or sequential at the election of Tower
Company. Such remedies shall be in addition to all other rights and remedies
Tower Company may have at law or equity. All of the remedies provided in this
Agreement or in any other SLA or at law or in equity are cumulative and Tower
Company may exercise such remedies concurrently or sequentially in such order as
it may choose.
4.22. MITIGATION BY TOWER COMPANY. No efforts by Tower Company to
mitigate the damage by Carrier's default under this Master Lease shall be deemed
a waiver of Tower Company's rights to recover damages under this Master Lease.
4.23. DEFAULT BY TOWER COMPANY. The occurrence of any of the following
instances shall be considered to be a default or a breach of the Applicable SLA
and the Master Lease as it may apply to the Applicable SLA (or in the event that
events occur which would constitute an event of default under the Master Lease,
the Master Lease) by Tower Company:
25
(a) any failure of Tower Company to pay any charge for which Tower
Company has the responsibility of payment under this Master Lease or any SLA
within fifteen (15) days of written notice from Carrier, or its agents or
representatives thereof;
(b) any failure of Tower company to perform or observe any term,
covenant, provision or condition of Paragraph III of this Agreement, including
without limitation, any obligation to commence and complete construction
pursuant to Paragraph 3.4 of this Agreement and any schedule, attachment or
agreement related thereto which failure is not corrected or cured by Tower
Company within ten (10) days of receipt by Tower Company of written notice from
Carrier of the existence of such a default; or
(c) any failure of Tower Company to perform or observe any other
term, covenant, provision or conditions of this Master Lease or any SLA which
failure is not corrected or cured by Tower Company within thirty (30) days of
receipt by Tower Company of written notice from Carrier of the existence of such
a default; except such thirty (30) day cure period shall be extended as
reasonably necessary to permit Tower Company to complete a cure so long as Tower
Company commences the cure within such thirty (30) day cure period and
thereafter continuously and diligently pursues and completes such cure;
provided, however, that in the event such default exposes Carrier to immediate
liability for damages, fines or penalties or causes a breach of any other
agreement to which Carrier is a party, Tower Company shall immediately remedy
such conditions or Carrier shall be entitled to remedy such condition at Tower
Company's reasonable cost and expense; or
(d) Tower Company shall become bankrupt, insolvent or file a
voluntary petition in bankruptcy, have an involuntary petition in bankruptcy
filed against Tower Company which is not dismissed within sixty (60) days of the
date of the filing of the involuntary petition, file for reorganization or
arrange for the appointment of a receiver or trustee in bankruptcy or
reorganization of all or a substantial portion of Tower Company's assets, or
Tower Company makes an assignment for such purposes for the benefit of
creditors;
(e) this Master Lease, any SLA or Tower Company's interest herein
or Tower Company's interest in the Premises, the Tower Facilities or the
Property are executed upon or attached and such execution or attachment is not
dismissed, released or removed within thirty (30) days of the execution or
attachment; or
(f) the imposition of any lien on the Tower Facilities as a result
of the actions or inactions of Tower Company or another subtenant on the Tower
Facilities, except as may be expressly authorized by this Master Lease, or an
attempt by Tower Company or anyone claiming through Tower Company to encumber
Carrier's interest in the Tower Facilities or the Property and such lien or
encumbrance is not dismissed, released or removed within thirty (30) days of
such imposition or attempt; or
Tower Company and Carrier understand and agree that a default by Tower Company
under the terms of any SLA shall constitute a default under that SLA but shall
not constitute a breach or a default under any other SLA or this Master Lease,
and that Carrier shall have the right but not the obligation to those remedies
afforded to Carrier at law or in equity and under paragraph 4.24 of this Master
Lease for each such Applicable Tower Site and applicable SLA which is subject to
this Master Lease, provided, however, that in the event that a default occurs
under (i) more than twenty-five percent (25%) of the SLAs in effect under this
Agreement at any single instance when at least thirty-two (32) SLAs have been
fully executed, or (ii) more than 8 Sites at any single instance when less than
thirty-two (32) SLAs have
26
been fully executed, and such defaults are not cured within the notice periods
provided herein, the aggregate of such defaults shall constitute a default under
the terms of this Agreement and Carrier shall have the right but not the
obligation to those remedies afforded to Carrier at law or in equity and/or by
Section 4.24 of the Master Lease for this Master Lease and for all of the Sites
and the SLAs which are subject to the Master Lease. If an event of default
occurs under Section 4.23(d), such event shall constitute a default under the
terms of this Agreement and Carrier shall have the rights, but not the
obligation to those remedies afforded to Carrier at law or in equity and/or by
Section 4.24 for the Master Lease and for all of the Sites and SLAs which are
subject of this Master Lease. The forbearance of Carrier to exercise any
remedies available to Carrier shall not constitute a waiver of the ability of
Carrier to exercise those remedies for the same or subsequent defaults.
4.24. REMEDIES OF CARRIER. In the event of a default by Tower Company
under the terms of Paragraph 4.23 of this Master Lease or any SLA and after
Tower Company's failure to cure such default within the time allowed to cure
such default, then Carrier may, in addition to any other remedy available at
equity or law, (a) xxx for damages; (b) terminate the applicable SLA, without
waiving its right to xxx for damages; (c) cure such defaults itself and deduct
the actual costs of such cure from the Rent due under the applicable SLA, then
from the rent due under any other SLAs, and then from any other amounts due to
Tower Company from Carrier; (d) in the case of a default under Paragraph 4.23(b)
Carrier shall have the right to complete construction of or cause the completion
of the construction of the Tower Facilities without further notice to or consent
of Tower Company. Carrier shall have the right to hire or retain any contractor
it shall so choose to complete the construction of the Tower Facilities in such
event. Tower Company and its employees, contractors, subcontractors, agents and
representatives shall provide Carrier and its employees, agents,
representatives, contractors and subcontractors free, unobstructed, complete and
open access to the Property and the Easements to complete construction of the
Tower Facilities, Carrier's Equipment and anything related thereto. In addition
to any other claim, damages or remedies which Carrier may have, Tower Company
shall reimburse Carrier for the reasonable cost actually incurred for the
construction or completion of construction of the Tower Facility and any items
related thereto. Carrier may set such amounts due off against the Rent due under
the SLA for the Applicable Tower Facility or any other SLA and make claim
against Tower Company for any amounts due, such remedies to be cumulative and
concurrent or sequential at the election of Carrier. Such remedies shall be in
addition to all other rights and remedies Carrier may have at law or equity. All
of the remedies provided in this Agreement or in any other SLA or at law or in
equity are cumulative and Carrier may exercise such remedies concurrently or
sequentially in such order as it may choose.
4.25. MITIGATION BY CARRIER. No efforts by Carrier to mitigate the
damage by Tower Company's default under this Master Lease shall be deemed a
waiver of Carrier's rights to recover damages under this Master Lease.
4.26. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
contained in this Agreement, Tower Company shall not be responsible for any
incidental or consequential damages arising under this Agreement or any SLA
unless incurred or resulting from the intentional misconduct of Tower Company or
its agents, representatives, contractors, employees, officers or directors.
Notwithstanding anything to the contrary contained in this Agreement, Carrier
shall not be responsible for any incidental or consequential damages arising
under this agreement or any SLA unless incurred or resulting from the
intentional misconduct of Carrier or its agents, representatives, contractors,
employees, officers or directors.
4.27. SUBORDINATION. This Master Lease and any option or right of first
refusal granted hereunder, at Tower Company's option, shall be subordinate to
any mortgage, deed of trust, or other
27
encumbrance now or hereafter placed upon the Premises and to any and all
advances made on the security thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof, provided that the
beneficiary or lender under such mortgage, deed of trust or other encumbrance
enters into a satisfactory non-disturbance and attornment agreement with
Carrier.
V. GENERAL PROVISIONS
5.1. NOTICES. All notices, requests, demands or communications under
this Master Lease or any SLA by or from Tower Company to Carrier, or Carrier to
Tower Company, shall be in writing and personally delivered against receipt,
faxed, sent by overnight mail by a national recognized overnight carrier or
mailed, certified mail, return receipt requested. Such notices or demands shall
be sent to the following address:
Tower
Company: SBA Towers, Inc.
Xxx Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
Carrier: Tritel Communications, Inc.
000 X. Xxxxx Xxxxxx - Xxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: 000-000-0000
The parties may change the notice addressees, addresses and fax numbers
by giving the other party notice of the change following the procedure set forth
in this paragraph.
5.2. ASSIGNMENTS AND SUBLEASES.
(a) ASSIGNMENT AND SUBLEASES BY CARRIER. (I) Carrier may not
sublease the Premises. Carrier may assign Carrier's interest in this Master
Lease, any SLA or in the Premises without obtaining Tower Company's consent to a
Carrier Affiliate, provided such Carrier Affiliate agrees to be bound hereby and
maintains at the time of such assignment, as demonstrated by current financial
statements provided to Tower Company prior to such assignment, a financial
position reasonably demonstrating the ability of such assignee to meet and
perform the obligations of Carrier hereunder through the unexpired balance of
the Initial Term or any Renewal Terms, as the case may be. For purposes of this
Master Lease, "Carrier Affiliate" shall mean a corporation, limited liability
company, partnership or other business entity that owns or controls Carrier, or
that is owned by or controlled by, or under common ownership or control with,
Carrier, or that merges or consolidates with Carrier or purchases substantially
all of the assets of Carrier or purchases a controlling interest in Carrier's
outstanding voting securities or assets. Carrier shall not otherwise
voluntarily, involuntarily or be operation of law assign, sell or otherwise
transfer Carrier's interest in this Master Lease, any SLA or in the Premises
without obtaining Tower Company's consent, which consent shall not be
unreasonably withheld, delayed or conditioned.
(II) Notwithstanding anything else contained herein, Carrier may,
without notice or consent of Tower Company, pledge, mortgage, convey by deed of
trust or security deed, assign, create a security
28
interest in, or otherwise execute and deliver any and all instruments for the
purpose of securing bona fide indebtedness all or any part of Carrier's interest
in this Master Lease, any SLA, any Premises, and/or all or any portion of
Carrier's right, title, and interest in and to any and/or all of Tower
Facilities, the Property or the Easements, provided that Carrier provides Tower
Company with a subordination non-disturbance and attornment agreement reasonably
satisfactory to Tower Company. Promptly on Carrier's or Carrier's lender's
request, Tower Company shall execute and deliver, and shall assist in
facilitating the execution and delivery of, all documents requested by any of
Carrier's lenders including, but not limited to, consents to giving notice to
Carrier's lender(s) in the event of Carrier's default under the provision of the
SLA or the Master Lease, and consents to Carrier's assignment to any lender(s)
of any and all of Carrier's interest in or to this Agreement, any SLA or
Premises provided, however, that all such documents and consents shall be in a
form which is reasonably acceptable to Tower Company and which will not
materially increase Tower Company's burdens nor materially impair Tower
Company's rights under this Master Lease or any SLA. Carrier shall reimburse
Tower Company for any out-of-pocket costs incurred by Tower Company in complying
with this provision including, but not limited to, Tower Company's reasonable
attorneys' fees incurred in reviewing and negotiating such documents and
consents.
(b) LIMITATIONS ON ASSIGNMENT BY TOWER COMPANY.
(i) SUBLEASE. Tower Company shall have the right, subject to the
restrictions of this Agreement, including without limitation, the
restrictions in paragraph 4.13 hereof, to sublease space upon the Tower
Facilities, the Property or the Easements (but not the whole of the
Tower Facilities, the Property or the Easements) without obtaining
Carrier's consent, provided that such sublease does not violate the
provisions of and is subject to the provisions of this Master Lease and
any applicable SLA.
(ii) ASSIGNMENT OF MASTER LEASE OR SLAS. Tower Company may assign
Tower Company's interest in this Master Lease, any SLA, the Tower
Facilities or in the Premises without obtaining Carrier's consent to a
Tower Company Affiliate provided such Tower Company Affiliate agrees to
be bound hereby and assumes all of Tower Company's obligations under
this Agreement and such assignee maintains at the time of such
assignment, as demonstrated by current financial statements provided to
Carrier prior to such assignment, a financial position reasonably
demonstrating the ability of such assignee to meet and perform the
obligations of Tower Company hereunder through the unexpired balance of
the Initial Term and any Renewal Terms. For purposes of this Master
Lease, "Tower Company Affiliate" shall mean a corporation, limited
liability company, partnership or other business entity that owns or
controls Tower Company, or that is owned by or controlled by, or under
common ownership or control with, Tower Company, or that merges or
consolidates with Company or purchases substantially all of the assets
of Tower Company or purchases a controlling interest in Tower Company's
outstanding voting securities or assets. Tower Company shall not
otherwise voluntarily, involuntarily or be operation of law assign,
sell or otherwise transfer Tower Company's interest in this Master
Lease, any SLA or in the Premises without obtaining Carrier's consent,
which consent shall not be unreasonably withheld, delayed or
conditioned. Tower Company shall may not assign Tower Company's
interest in this Master Lease, any SLA, the Tower Facilities, any
Ground Lease or in the Premises to any other carrier or provider of
wireless communications services or competitor of Carrier.
(c) PLEDGE BY TOWER COMPANY. Notwithstanding anything else
contained herein, Tower Company may, without notice or consent of Carrier,
pledge, mortgage, convey by deed of trust or
29
security deed, assign, create a security interest in, or otherwise execute and
deliver any and all instruments for the purpose of securing bona fide
indebtedness all or any part of Tower Company's interest in this Master Lease,
any SLA, any Premises, and/or all or any portion of Tower Company's right,
title, and interest in and to any and/or all of Tower Facilities, the Property
or the Easements, provided that Tower Company provides Carrier with a
subordination, non-disturbance agreement that is reasonably satisfactory to
Carrier. Promptly on Tower Company's or Tower Company's lender's request,
Carrier shall execute and deliver, and shall assist in facilitating the
execution and delivery of, all documents requested by any of Tower Company's
lenders including, but not limited to, consents to giving notice to Tower.
Company's lender(s) in the event of Tower Company's default under the provision
of the SLA or the Master Lease, and consents to Tower Company's assignment to
any lender(s) of any and all of Tower Company's interest in or to this
Agreement, any SLA or Premises provided, however, that all such documents and
consents shall be in a form which is reasonably acceptable to Carrier and which
will not materially increase Tower Company's or Carrier's burdens nor materially
impair Carrier's rights under this Master Lease or any SLA. Tower Company shall
reimburse Carrier for any out-of-pocket costs incurred by Carrier in complying
with this provision including, but not limited to, Carrier's reasonable
attorneys' fees incurred in reviewing and negotiating such documents and
consents.
(d) ASSIGNMENT OF CONSTRUCTION OBLIGATIONS. Notwithstanding
anything else contained herein, Tower Company shall not involuntarily,
voluntarily or by operation of law assign or otherwise transfer its rights or
obligations (including, but not limited to, the obligation to construct the
Tower Facilities) relating to any Applicable Tower Site or SLA which is the
subject of this Agreement, prior to the acceptance of the Applicable Site by
Carrier pursuant to paragraph 3.8 hereof.
5.3. REPRESENTATIONS AND WARRANTIES OF CARRIER. Carrier represents and
warrants to Tower Company that:
(a) ORGANIZATION, GOOD STANDING AND AUTHORITY. It is a
corporation, duly organized, validly existing and in good standing under the
laws of Delaware and has the requisite corporate power and authority to enter
into and perform this Master Lease and Carrier is duly qualified to do business
in the states of Alabama, Florida, Mississippi, Tennessee, and Kentucky.
(b) AUTHORIZATION AND VALIDITY OF MASTER LEASE. That Carrier's
execution and delivery of this Master Lease have been duly authorized and no
further action on the part of Carrier is necessary to authorize this Master
Lease or the consummation of the transactions contemplated herein. This Master
Lease constitutes the valid and binding obligation of Carrier duly enforceable
in accordance with its terms.
(c) NO BREACH OF OTHER INSTRUMENTS. That there is no contract or
agreement or other instrument to which Carrier is a party or by which Carrier or
its assets are bound which prohibits the execution or delivery by Carrier of
this Master Lease or the performance or observance by Carrier of any term or
condition of this Master Lease and, subject to the fulfillment of all conditions
set forth therein, neither execution and delivery of this Master Lease nor the
consummation of the transactions contemplated hereby will violate any term or
provision of any such contract, agreement, or instrument.
(d) NO VIOLATION OF LAW OR ORDER. That subject to the fulfillment
of all conditions set forth herein, neither the execution and delivery of this
Master Lease nor transactions contemplated hereby, shall result in the violation
by Carrier of any, law, regulation, judgment or order of any court or
governmental authority applicable to Carrier or result in a breach of the terms
of this or any other agreement to which Carrier is a party.
30
5.4. REPRESENTATIONS AND WARRANTIES OF TOWER COMPANY. Tower Company
represents and warrants to Carrier that:
(a) ORGANIZATION, GOOD STANDING AND AUTHORITY. It is a
corporation, duly organized, validly existing and in good standing under the
laws of Florida and has the requisite corporate power and authority to enter
into and perform this Master Lease and Tower Company is duly qualified to do
business in the states of Alabama, Florida, Mississippi, Tennessee and Kentucky
and in any other Market in which Tower Company enters into an SLA or other
agreement with Carrier.
(b) AUTHORIZATION AND VALIDITY OF MASTER LEASE. That Tower
Company's execution and delivery of this Master Lease have been duly authorized
and no further action on the part of Tower Company is necessary to authorize
this Master Lease or the consummation of the transactions contemplated herein.
This Master Lease constitutes the valid and binding obligation of Tower Company
duly enforceable in accordance with its terms.
(c) NO BREACH OF OTHER INSTRUMENTS. That there is no contract or
agreement or other instrument to which Tower Company is a party or by which
Tower Company or its assets are bound which prohibits the execution or delivery
by Tower Company of this Master Lease or the performance or observance by Tower
Company of any term or condition of this Master Lease and, subject to the
fulfillment of all conditions set forth therein, neither execution and delivery
of this Master Lease nor the consummation of the transactions contemplated
hereby will violate any term or provision of any such contract, agreement, or
instrument.
(d) NO VIOLATION OF LAW OR ORDER. That subject to the fulfillment
of all conditions set forth herein, neither the execution and delivery of this
Master Lease nor transactions contemplated hereby, shall result in the violation
by Tower Company of any, law, regulation, judgment or order of any court or
governmental authority applicable to Tower Company or result in a breach of the
terms of this or any other agreement to which Tower Company is a party.
(e) TITLE. Tower Company holds good and marketable title to its
leasehold interest in the Property, the Easements, the Premises and title to the
Tower Facilities except for any items or defects which are disclosed in the
title insurance commitment which is attached to the SLA as Exhibit "F," provided
however, Tower Company's liability for a breach of this provision shall not
exceed the amount which Tower Company is entitled to recover from its title
insurance policy for such Site. Tower Company hereby agrees to obtain a policy
for title insurance for each Applicable Tower Site in an amount which shall not
be less than Two Hundred Thousand and no/100s Dollars ($200,000.00) under which
Tower Company is insured. Tower Company shall deliver a copy of the title
insurance policy for each Applicable Tower Site within six (6) months days of
the acceptance of the Applicable Tower Site pursuant to Section 3.8 of this
Agreement.
5.5. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. The terms, covenants and conditions
contained in this Master Lease shall be binding upon and inure to the benefit of
the parties hereto, and also their respective heirs, executors, administrators,
personal representatives, successors and assigns subject to the provisions of
paragraph 5.2 of this Master Lease relating to restrictions upon sale,
assignment or subletting of this Master Lease.
31
(b) INTEGRATION. It is understood that there are no oral
agreements or representations between the parties hereto affecting this Master
Lease and this Master Lease and the SLAs supersede and cancel any and all
previous negotiations, arrangements, agreements or representations and
understandings, if any, between the parties hereto with respect to the subject
matter thereof. There are no other representations or warranties between the
parties and all reliance with respect to representations is solely upon the
representations and agreements contained in this document except for the SLAs,
Memoranda of SLA, Assignments, Memoranda of Assignment; Estoppel Certificates,
Notices of Completion and any other documents or instruments referred to herein.
(c) HEADINGS. The Headings and paragraph titles herein are for
convenience only and do not in any way define, limit or construe the contents of
such Paragraphs.
(d) SEVERABILITY. It is agreed that if any provision of this
Master Lease shall be determined to be void by any court of competent
jurisdiction, then such determination shall not affect any other provisions of
this Master Lease and all such other provisions shall remain in full force and
effect.
(e) FORCE MAJEURE. Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, inability to obtain labor or
materials or reasonable substitutes therefor, governmental restrictions, actions
or inactions not caused or contributed to by the Tower Company, governmental
controls not caused or contributed to by Tower Company, enemy or hostile
governmental action, civil commotion, fire or other casualty, and other causes
beyond the reasonable control of the party obligated to perform, shall excuse
the performance by such for a period equal to any such delay or stoppage.
(f) ESTOPPEL CERTIFICATE. (i) Carrier shall, upon the request of
any lender of Tower Company, but no more than five (5) times in any single year,
upon not less than ten (10) days' prior written notice from Tower Company,
execute, acknowledge and deliver to Tower Company's lender a statement in
writing on a form prescribed by Tower Company's lender reasonably acceptable to
Carrier (i) certifying that this Master Lease is unmodified and in full force
and effect (or, if modified, stating the nature of such modification and
certifying that this Master Lease as so modified is in full force and effect),
or if not in full force and effect stating that the Master Lease is not in full
force and effect and the reasons therefore, to the best of its knowledge, and
the date to which the rent and other charges are paid in advance, if any, and
(ii) acknowledging that there is not, to the best of Carrier's knowledge, any
uncured default on the part of Tower Company hereunder, or specifying such
default if any claim, provided however, that Tower Company shall reimburse
Carrier for the cost and expense, including without limitation legal expense,
for the review, alteration, revisions, completion and execution of such
document(s).
(ii) Tower Company shall, upon the request of any lender of
Carrier, but no more than five (5) times in any single year, upon not
less than ten (10) days' prior written notice from Carrier, execute,
acknowledge and deliver to Carrier's lender a statement in writing on a
form prescribed by Carrier's lender reasonably acceptable to Tower
Company (i) certifying that this Master Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such
modification and certifying that this Master Lease as so modified is in
full force and effect), or if not in full force and effect stating that
the Master Lease is not in full force and effect and the reasons
therefore, to the best of its knowledge, and the date to which the rent
and other charges are paid in advance, if any, and (ii) acknowledging
that there is not, to the best of Tower Company's knowledge, any
uncured default on the part of Carrier hereunder, or specifying such
default if any is claimed, provided however, that Carrier shall
reimburse Tower Company for the
32
cost and expense, including without limitation legal expense, for the
review, alteration, revision, completion and execution of such
document(s).
(g) ATTORNMENT. (i) Upon request of the mortgagee, Carrier will
attorn, as lessee under this Master Lease, to the purchaser at any foreclosure
sale thereunder, or if any ground or underlying Ground Lease is terminated for
any reason, Carrier will attorn, as Carrier under this Master Lease, to the
ground lessor under the Ground Lease, provided that such Ground Lessor or
mortgagee does not disturb Carrier's possession of the Premises and honors the
terms and conditions of this Master Lease, and Carrier and such Ground Lessor or
mortgagee will execute such instruments as may be necessary or appropriate to
evidence such attornment.
(ii) Upon request of the mortgagee, Tower Company will attorn, as
lessor under this Master Lease, to the purchaser at any foreclosure
sale thereunder.
(h) CERTAIN RULES OF CONSTRUCTION. (i) Notwithstanding the fact
that certain references elsewhere in this Master Lease to acts required to be
performed by Carrier hereunder, or to breaches or defaults of this Master Lease
by Carrier, omit to state that such breaches or defaults by Carrier are
material, unless the context implies to the contrary, all breaches or defaults
by Carrier hereunder shall be deemed material. Carrier shall be fully
responsible and liable for the observance and compliance by concessionaires of
and with all the terms and conditions of this Master Lease, which terms and
conditions shall be applicable to concessionaires as if they were Carrier
hereunder and failure by a concessionaire fully to observe and comply with the
terms and conditions of this Master Lease shall constitute a default hereunder
by Carrier.
(ii) Notwithstanding the fact that certain references elsewhere in
this Master Lease to acts required to be performed by Tower Company
hereunder, or to breaches or defaults of this Master Lease by Tower
Company, omit to state that such breaches or defaults by Tower Company
are material, unless the context implies to the contrary, all breaches
or defaults by Tower Company hereunder shall be deemed material. Tower
Company shall be fully responsible and liable for the observance and
compliance by concessionaires of and with all the terms and conditions
of this Master Lease, which terms and conditions shall be applicable to
concessionaires as if they were Tower Company hereunder and failure by
a concessionaire fully to observe and comply with the terms and
conditions of this Master Lease shall constitute a default hereunder by
Tower Company.
(i) WARRANTIES AND REPRESENTATIONS. The warranties and
representations made in this Agreement shall be deemed to be made, reaffirmed,
ratified, rewarranted and rerepresented upon the execution of each Assignment
and each SLA.
(j) COUNTERPARTS. This Master Lease may be executed in
counterparts with the same effect as if both parties hereto had signed the same
document. Both counterparts shall be construed together and shall constitute one
(1) Master Lease.
(k) INTERPRETATION. The parties hereby acknowledge that the
draftsmanship of this Agreement was a cooperative effort by both parties who
were represented by counsel and that this Master Lease shall not be construed
either for or against Tower Company or Carrier, but this Master Lease shall be
interpreted in accordance with the general tenor of the language in an effort to
reach an equitable result.
33
(l) GOVERNING LAW. This Master Lease is to be governed by and
construed in accordance with the laws of the state in which the Premises is
situated.
(m) NO PARTNERSHIP. Carrier and Tower Company agree that their
relationship under this Master Lease shall be that of landlord and tenant and
that no partnership is intended or shall be created by this Master Lease.
(n) CONSENT. Tower Company and Carrier covenant that whenever
their consent or approval is required under this Master Lease said consent shall
not be conditioned or unreasonably withheld, delayed, or conditioned.
(o) ATTORNEY FEES. In the event of a breach of this Agreement, the
substantially prevailing party in any litigation arising as a result of such
breach shall be entitled to its reasonable attorney's fees and court costs
including appeals, if any.
IN WITNESS WHEREOF, Tower Company and Carrier have executed this
Master Lease and the "Effective Date" of this Master Lease shall be the last
date that this Master Lease is signed by Tower Company and Carrier.
TOWER COMPANY:
SBA TOWERS, INC.
BY:
--------------------------------------
TITLE:
-----------------------------------
DATE:
------------------------------------
TRITEL COMMUNICATIONS, INC.:
BY:
--------------------------------------
XXXXXXX X. XXXXXX
PRESIDENT
DATE:
------------------------------------
34
LIST OF ATTACHMENTS
ATTACHMENT DESCRIPTION
---------- -----------
I ASSIGNMENT
II MEMORANDUM OF ASSIGNMENT
III ESTOPPEL CERTIFICATE
IV SITE LEASE AGREEMENT
V MEMORANDUM OF SITE LEASE AGREEMENT
VI SCHEDULES WITH MARKET SPECIFIC TERMS, INCLUDING WITHOUT LIMITATION
REIMBURSEMENT OF PRE-DEVELOPMENT COSTS, RENT, SCHEDULES FOR
COMPLETION OF TOWER FACILITIES AND DELIVERIES
VII NOTICE OF COMPLETION
VIII LETTER CONFIRMING COMMENCEMENT DATE
IX NON-CARRIER PERSONNEL
ATTACHMENT "I"
ASSIGNMENT OF GROUND LEASE
THIS ASSIGNMENT OF GROUND LEASE AGREEMENT ("Assignment ") is made and
entered into as of the ____ day of ______________, _______, by and between
_______________ ___________________, a ___________ corporation ("Tower
Company"), and Tritel Communications, Inc., a Delaware Corporation, ("Carrier").
WHEREAS, Carrier has entered into a ground lease agreement, lease
agreement or other similar agreement (the "Ground Lease") for the lease of the
real property more particularly described in Exhibit "A" attached hereto (the
"Property") upon which Carrier has constructed or intends to construct a tower
and related facilities and for an easement for ingress, egress and utilities
over the real property more particularly described in Exhibit "B" attached
hereto, (the "Easement");
WHEREAS, Carrier desires to assign the Ground Lease for said Property,
a copy of which is attached hereto as Exhibit "C", to Tower Company; and
WHEREAS, Tower Company desires to develop the tower and certain
facilities on the Property and sublease a portion of the space upon the Tower
Facilities to Carrier.
NOW THEREFORE, for and in consideration of the mutual promises outlined
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Carrier and Tower Company do hereby agree as
follows:
1. Assignment. Carrier does hereby assign to Tower Company without
warranty or representation and Tower Company shall and hereby assumes and agrees
to be bound by the Ground Lease, or such other contract through which Carrier
has acquired an interest in the real property which is the subject of the Ground
Lease together with the Easements.
2. Covenants of Carrier. Carrier covenants that it:
(a) unconditionally and absolutely assigns, transfers, sets over and
conveys to Tower Company, without warranty or representation all of Carrier's
right, title and interest in, to and under the Ground Lease and the Easements
except as such rights may be limited or modified by any (if any) addenda
attached to the Ground Lease. Carrier represents and wan-ants to Tower Company
that all addenda to the Ground Lease are attached to this Agreement as part of
Exhibit "C". The Easements, if any, in addition to the Ground Lease are attached
hereto as Exhibit "D".
(b) to the best of its knowledge, without independent inquiry or
investigation, has no knowledge or notice of any default, defense, offset,
claim, demand, counterclaim or cause of action which may presently exist under
the Ground Lease; and
(c) to the extent Carrier may assign, Carrier irrevocably assigns,
transfers, conveys and sets over to Tower Company without warranty or
representation and Tower Company accepts from Carrier all of the right, title
and interest of Carrier under each and all of the following items (without
warranty that any of the following may be assigned):
(i) the Federal Aviation Administration application, responses,
approvals and registration numbers submitted or received by
Carrier with respect to the tower proposed to be
constructed on the Property;
(ii) the zoning permits and approvals, variances, building
permits and such other federal, state or local governmental
approvals which have been gained or for which Carrier has
made application;
(iii) the construction, engineering and architectural drawings
and related site plan and surveys pertaining to the
construction of the Tower Facilities on the Property;
(iv) the geotechnical report for the Property which has been
commissioned by Carrier;
(v) the title reports, commitments for title insurance,
ownership and encumbrance reports, title opinion letters,
copies of instruments in the chain of title or any other
information which may have been produced regarding title to
the Property and the Easements;
(vi) the environmental assessments including phase I reports and
any reports relating contemporaneous or subsequent
intrusive testing, the "FCC Checklist" performed pursuant
to National Environmental Protection Act requirements and
any other information which may have been produced
regarding the environmental condition of the Property,
Easements or neighboring real property; and
(vii) any other documents, instruments, agreements, plans or
items which Carrier may have obtained in connection with
the Ground Lease, the Property, the Easements, or for
construction of a tower upon the Property.
The items described in paragraphs 2(c) may hereinafter be collectively referred
to as "Site Acquisition Items"; and
(d) shall use diligent reasonable efforts to assist Tower Company in
obtaining an estoppel certificate from the Lessor in the Ground Lease in
substantially the same form as is attached to the Master Lease as Attachment 3
("Estoppel Certificate"); and
(e) agrees to indemnify and to forever defend and hold harmless Tower
Company from and against any and all loss, cost, damage and expense ever
suffered or incurred by Tower Company by reason of any act or omission of
Carrier under the Ground Lease before the date of this Assignment, including,
without limitation any default by Carrier under the Ground Lease.
3. Covenants of Tower Company. Tower Company covenants that:
(a) Tower Company hereby assumes the Ground Lease and all of Carrier's
duties and obligations under the Ground Lease arising subsequent to the date
hereof and Tower Company hereby agrees to promptly and faithfully perform all of
the obligations of Carrier under the Ground Lease.
(b) Tower Company agrees to indemnify and to forever defend and hold
harmless Carrier from and against any and all loss, cost, damage and expense
ever suffered or incurred by Carrier by reason of any act or omission of Tower
Company under the Ground Lease from and after the date of this Assignment,
including, without limitation any default by Tower Company under the Ground
Lease.
4. Master Lease. This Assignment is being executed pursuant to the
terms of a Master Build To Suit and Lease Agreement (the "Master Lease") and in
the event that there is a conflict between the terms and conditions of the
Master Lease, this Assignment, the terms and conditions of this Assignment
4
shall control. This Assignment shall remain subject to the remaining terms and
conditions of the Master Lease.
IN WITNESS WHEREOF, Tower Company and Carrier have signed this
Agreement as of the date and year first above written.
CARRIER: TOWER COMPANY:
TRITEL COMMUNICATIONS, INC. SBA TOWERS, INC.
By: By:
---------------------------------- ----------------------------------
Name: Xxxxxxx Xxxxxx Name:
-------------------------------- --------------------------------
Title: Director, Site Acquisition and Title:
Property Administration
------------------------------- -------------------------------
5
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
6
EXHIBIT "B"
LEGAL DESCRIPTION OF EASEMENTS
7
EXHIBIT "C"
COPY OF GROUND LEASE
8
EXHIBIT "D"
COPY OF EASEMENTS, IF ANY
9
ATTACHMENT "II"
THIS INSTRUMENT SITE NAME: INDEXING INSTRUCTIONS
PREPARED BY: SITE ID:
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
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Memorandum of Assignment of Prime Lease
This memorandum evidences that an assignment was made and entered into by
written Assignment of Prime Lease (the "Assignment") dated ___________________,
1999, between - ___________________, a ________________ corporation ("Tower
Company") and TRITEL COMMUNICATIONS, INC., a Delaware corporation ("Carrier")..
Such Agreement provides in part that Carrier assigns to, and Carrier does hereby
assign to Tower Company that certain Option and Lease Agreement or similar lease
agreement (the "Lease") dated ________ ________, for the lease of real property
(the "Property") located in _________ County, in the state of ___________, which
Property is more particularly described on Exhibit "A" attached hereto and made
a part hereof, a memorandum (the "Memorandum") of which lease is of record in
__________________ in the ____________________________office for recording real
property records in the __________________ County of the state of
________________________. Carrier hereby assigns the Lease and Memorandum of
Lease to the Tower company pursuant to the terms of the Assignment.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the day and
year first above written.
TOWER COMPANY
SBA TOWERS, INC.
By:
-----------------------------------
Its:
----------------------------------
Address:
------------------------------
--------------------------------------
CARRIER
TRITEL COMMUNICATIONS, INC.
By: Xxxxxxx Xxxxxx
-----------------------------------
Its: Director, Site Acquisition and
Property Administration
----------------------------------
Address:
------------------------------
--------------------------------------
10
[ACKNOWLEDGEMENTS]
11
EXHIBIT "A"
REAL PROPERTY DESCRIPTION
OF PROPERTY LEASED
12
ATTACHMENT III
ESTOPPEL CERTIFICATE
THIS INSTRUMENT is given as of this ______ day of ____________________,
_____, by ___________________________ ("Lessor") to
________________________________, a _________________________ corporation
("Assignee" or "Tower Company").
RECITALS
A. Lessor entered into a Lease Agreement or similar agreement with
___________ (_____) numbers of addenda attached thereto, (collectively, the
"Prime Lease") dated as of the ________day of ___________, _____with Tritel
Communications, Inc., a Delaware corporation ("Lessee").
B. Lessee desires to assign its interest in the Prime Lease to
Assignee.
C. Assignee seeks Lessor's acknowledgment, as of the date of execution
of this Instrument, of certain matters affecting the Prime Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, intending to be legally bound:
1. Lessor's Estoppel Certificate. Lessor hereby certifies, with the
understanding that Assignee is relying upon the statements made herein, the
following:
a. The Prime Lease with _____ number of addenda constitutes the entire
agreement between the parties with respect to the Premises. The Prime Lease has
not been amended and there are no other agreements between Lessor and Lessee
with respect to the property or the easements which are described in the Prime
Lease.
b. The Prime Lease is in full force and effect in accordance with its
terms. To the best of Lessor's knowledge, neither Lessee nor Lessor is in
default under any of the terms of the Prime Lease, and Lessor has not received
actual or constructive notice of the existence of any event which, with the
passage of time or the giving of notice or both, would constitute a default
under the Prime Lease.
c. All applicable Prime Lease fees and rent (if any) and other charges
and payments due Lessor from Lessee under the Prime Lease have been paid in full
through the date hereof (except reimbursements for real estate taxes, insurance,
utilities or other reimbursements, if any, due for fiscal periods to the extent
not yet payable).
2. Consent. Lessor hereby acknowledges the right of Lessee to assign
the Prime Lease to Assignee and agrees that all terms of the Prime Lease shall
be in full force and effect between Lessor and Assignee as if Lessor and
Assignee were the original parties to the Prime Lease and that such assignment
shall not violate the terms of the Prime Lease, will not create or cause the
Assignee to be liable for any rent in excess of $__________ per month during the
Initial Term or be considered a sublease under the terms of the Prime Lease or
any addenda thereto.
3. Release. (a) Lessor, with the intention of binding itself and its
successors and assignees, expressly forever releases and discharges Lessee and
its successors and assigns from all claims, demands, actions, grievances,
controversies, contracts, promises, agreements, causes of action, in both law
and
13
equity, judgments and executions, damages of whatever nature, past or
present, known and unknown, that it ever had, or now has, known or unknown, or
that anyone claiming through or under Lessor may now have or claim to have,
against Lessee which arise from the Prime Lease or any instruments, documents or
actions or omissions related thereto, but no further or otherwise.
(b) Lessor, with the intention of binding itself and its successors
and assignees, expressly forever releases and discharges Assignee and its
successors and assigns from all claims, demands, actions, grievances,
controversies, contracts, promises, agreements, causes of action, in both law
and equity, judgments and executions, damages of whatever nature, past or
present, known and unknown, that it ever had, or now has, known or unknown, or
that anyone claiming through or under Lessor may now have or claim to have,
against Assignee which arise from the Prime Lease or any instruments, documents
or actions or omissions related thereto which occurred or accrued prior to the
date of this Estoppel Certificate, but no further or otherwise.
4. Reliance. Lessor understands that Assignee and Lessee are relying on
the information contained in this Instrument, and agrees that Assignee and
Lessee may rely on this information, for purposes of determining whether to
consummate their transaction. Further, Assignee's and Lessee's subsidiaries,
affiliates, legal representatives and successors and assigns may rely on the
contents of this Instrument. A facsimile of this instrument delivered to
Assignee by telecopier shall be deemed an original for all purposes.
5. Notice: Non-Disturbance. Assignee intends to grant a sub-leasehold
interest to Lessee pursuant to a sublease dated the _____ day of _____________,
_______ (the "Sublease") Lessor shall give notice to Lessee at the same time
that Lessor gives notice to Assignee of any default under the Prime Lease, and
Lessor shall accept a cure of any such default from Lessee on Assignee's behalf.
In such case, Lessee shall be entitled to reimbursement from Assignee of any
amount paid or obligation incurred in respect thereof. So long as the Lessee is
not in default under the Sublease beyond any applicable grace or cure period
(during the term or any renewal term and not at or beyond the final renewal term
of the Sublease if all renewal terms are exercised under the Sublease including
any agreed upon extensions), Lessee shall be permitted quiet enjoyment of the
Premises under the Sublease notwithstanding any termination or expiration of the
Prime Lease and notwithstanding any termination or expiration of the Prime
Lease, Lessor agrees at the request of the Lessee, to honor the terms and
conditions of the Sublease for the remainder of the term thereof and any renewal
terms, but not beyond the final renewal term of the Prime Lease if all renewal
terms are exercised under the Prime Lease, including any agreed upon extensions.
Lessee agrees, at the request of Lessor to attorn to the Lessor upon the terms
and conditions of the Sublease for the remainder of the term thereof (whether
original or renewal) and any renewal terms, and that the Sublease shall continue
in full force and effect as if the Lessor were the sublandlord under the
Sublease notwithstanding the expiration or termination of the Prime Lease.
6. Sublease. Lessor agrees that Assignee may sublease all or any
portion of the Property to any person or business entity to engage in wireless
communications, transmission or reception. Lessor further consents to: (a) the
sublease of all or any portion of the Property by Assignee, (b) subleases of all
or any portion of the Property by Assignee to any other person or business
entity to engage in wireless communications transmissions or reception (or
both), and (c) the assignment of the Prime Lease to a parent, subsidiary or
affiliate of Assignee.
7. Assignment. (A) Assignee may from time to time grant to certain
lenders (the "Lenders") a lien on and security interest in all assets and
personal property of Assignee located on the Property, including, but not
limited to, all accounts receivable, inventory, goods, machinery and equipment
owned by Assignee (the "Personal Property") as collateral security for the
repayment of any indebtedness to the Lenders, (B) (i) the Lenders may, in
connection with any foreclosure or other similar action relating to the
14
Personal Property, enter upon the Property (or permit their representatives to
do so on their behalf) in order to implement a foreclosure or other action
without liability to Lessor; provided, however, that (ii) rent is paid to
Assignee during occupancy by or on behalf of the Lenders for any purpose, (iii)
the Lenders pay for any damages caused by the Lenders or their representatives
in removing the Personal Property from the Property, and (iv) the Lenders
otherwise comply with the terms of the Prime Lease, (C) Lessor hereby agrees to
subordinate any security interest, lien, claim or other similar right,
including, without limitation, rights of levy or distraint for rent, Lessor may
have in or on the Personal Property, whether arising by agreement or by law, to
the liens and/or security interests in favor of the Lenders, whether currently
existing or arising in the future, (D) nothing contained herein shall be
construed to xxxxx x xxxx upon or security interest in any of Lessor's assets,
(E) to the extent required by the terms of the Prime Lease, Lessor consents to
any grant by Assignee to any Lenders of a lien on Assignee's leasehold interest
in the Prime lease, (F) in the event Lessor gives Assignee any notice of default
or termination of the Prime Lease (or commence any legal process relating
thereto), Lessor will endeavor to simultaneously give a duplicate copy thereof
to the Lenders but shall incur no liability due to Lessor's failure to give such
notice and the failure to give such notice shall not limit Lessor's ability to
exercise any remedies available to Lessor under the Prime Lease, (G) Lessor
agrees to accept performance on the part of any of the Lenders or their agents
or representatives as though performed by Assignee to cure any default or
condition for termination, (H) the terms of this Paragraph may not be modified,
amended or terminated except in writing signed by the Lenders and (I) by this
Estoppel Certificate Lessor has been made aware that Assignee has entered into
that certain Amended and Restated Credit Agreement dated as of February 5, 1999
with Xxxxxx Commercial Paper, Inc. ("Xxxxxx") as agent for a group of lenders,
all of whom shall be considered Lenders for purposes of this Paragraph and are,
together with their successors and assigns, intended third party beneficiaries
hereof and any notices to any Lenders required or desired to be given hereunder
shall be directed to Xxxxxx or to such other Lender as Xxxxxx or Tower Company
designate in writing or at such other address as such party shall specify.
8. Recording. The recording of this Estoppel Certificate by either the
Lessee or Assignee for recording in the real property records of the county in
which the property which is the subject of the Prime Lease is located shall
serve as notice to the public of the existence of the Prime Lease and further
confirm that the assignment described herein has been consummated and is
effective. In connection with such recording, the copy of the Prime Lease shall
be omitted from the recorded counterpart hereof solely for recording purposes.
9. Notices. Any Notices to be received by Assignee, Lessee or Lessor
under the Prime Lease, the Sublease, or this Estoppel Certificate shall be
deemed properly given if marked to Assignee, Lessor or Lessee with proper
postage or sent via a reputable overnight carrier to the following address:
TO TOWER
COMPANY: Tower Company:
SBA Towers, Inc.
Xxx Xxxx Xxxxxx Xxxx, Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
TO LESSEE: Tritel Communications, Inc.
000 X. Xxxxx Xxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: 000-000-0000
15
TO XXXXXX: Xxxxxx Commercial Paper, Inc.
Three World Trade Center
New York, New York
Attention: Mr. Xxxxxxx X'Xxxxx 10285
TO LESSOR:
---------------------------------------
---------------------------------------
---------------------------------------
IN WITNESS WHEREOF, Lessor and Assignee have executed this Instrument
as of the date set forth above.
SBA TOWERS, INC.
By:
----------------------------------------
Its:
---------------------------------------
Address:
-----------------------------------
LESSOR:
-------------------------------------------
By:
----------------------------------------
Its:
---------------------------------------
Address:
-----------------------------------
16
APPROPRIATE ACKNOWLEDGMENTS FOR
STATE WHERE PROPERTY IS LOCATED
17
ATTACHMENT IV
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ("SLA") is executed this ______ day of
__________________, ________, by and between ______________________________, a
_________________ corporation ("Tower Company") and TRITEL COMMUNICATIONS, INC.
("Carrier").
WHEREAS, on the ___ day of ___________________, ____, Tower Company and
Carrier entered into that certain Master Build To Suit and Lease Agreement
("Master Lease") which provides for the execution of individual SLAs for each
Site owned by Tower Company upon which Carrier desires to mount certain antenna,
structures and other equipment.
NOW THEREFORE, for $10.00 and other good and valuable consideration,
the legal receipt and sufficiency of which is hereby mutually acknowledged and
agreed upon, the Tower Company and the Carrier hereby agree as follows:
1. DEFINED TERMS. Any terms not defined herein shall have the meaning
set forth in the Master Lease.
2. SITE. Subject to the terms of the Master Lease, Tower Company hereby
leases and grants to Carrier and Carrier hereby leases from and accepts from
Tower Company space to install, maintain, operate, upgrade and remove Carrier's
wireless communications equipment and appurtenances on the tower owned by Tower
Company ("Tower Facilities"), the location of which Tower Facilities are shown
on Exhibit "B", including antennas and microwave dishes between the heights of
_____________________ and ________________ above ground level on the Tower
Facilities and which Tower Facilities are located on certain real property
leased by Tower Company more particularly described in Exhibit "A" attached
hereto ("Property"); and to install, maintain, operate and remove Carrier's
compound and related devices (including, but not limited to emergency
generators, equipment shelters, equipment cabinets, all necessary test equipment
and any temporary construction materials) owned by Carrier on a hundred
(_____)square foot portion of the Property at a location to be agreed upon in
writing between Tower Company and Carrier, which is shown as the cross hatched
area shown on Exhibit "B". Tower Company has granted and hereby grants unto
Carrier for the Initial Term and any Renewal Term an easement for ingress,
egress and utilities during the term of the Master Lease over the property
described in Exhibit "C" attached hereto ("Easement") (the space occupied by
Carrier on the Property and the Tower, all cabling, wiring, conduit, etc. to and
from the Tower and to and from Carrier's Equipment, and the Easement hereinafter
shall be referred to collectively as the "Premises") (The Tower Facilities,
Property and Easement shall constitute and hereinafter be referred to and known
as the "Site"). The Site is more commonly known to Tower Company as the
________________ Site. The Site is more commonly known to Carrier as the
________________ Site.
3 COMMENCEMENT DATE. The Commencement Date of this SLA shall be the
later of (i) the date that Tower Company completes installation of Carrier
Equipment on the Premises in the event that the Tower Company is installing
Carrier's Equipment on the Premises or (ii) fifteen (15) days after Carrier has
accepted the Tower Facilities pursuant to Paragraph 3.8, of the Master Lease; or
(iii) in the event that Carrier has not accepted the Tower Facilities pursuant
to Paragraph 3.8, fifteen (15) days after the date that the Tower Facilities are
substantially complete and Carrier is able to operate the Carrier Equipment upon
the Tower Facilities in compliance with all laws, rules and regulations. In the
event that Carrier reasonably disputes Tower Company's assertion that all items
on a Punch List have been completed and the uncompleted item precludes Carrier's
installation or operation of its equipment, the Commencement Date shall be the
date on which such item has been completed to the reasonable
18
satisfaction of Carrier. Carrier and Tower Company shall execute a letter
agreement which shall be attached to this SLA confirming the calendar date which
the parties understand to be the Commencement Date for each SLA.
4 EQUIPMENT. A description of the equipment, antennae, mounting height
of the antenna and other personal property of Carrier which Carrier intends to
locate on the Site ("Carrier's Equipment") is described in Exhibit "D" attached
hereto. Carrier will not install any equipment on the Site which is not
described in Exhibit "D" without Tower Company's prior, written consent, which
consent shall not be unreasonably withheld, delayed or conditioned. Tower
Company and Carrier acknowledge and agree that Carrier may substitute, add,
alter, modify and replace Carrier's Equipment described in Exhibit "D" upon the
Tower Facilities pursuant to the provisions of Section 3.9 of the Master Lease.
5. GROUND LEASE AND TITLE COMMITMENT. A copy of the Ground Lease for
this Site is attached hereto as Exhibit "E". A copy of the Title Insurance
Commitment regarding the title to the Site is attached hereto as Exhibit "F".
6. EFFECT OF AGREEMENT. Tower Company and Carrier acknowledge that the
Master Lease is the controlling agreement between the parties with regard to
Carrier's lease of the Site. This SLA is intended to supplement the Master Lease
and fulfill the requirements of Section 2 of the Master Lease. In the event of
any conflict between the terms of the Master Lease and this SLA, the terms and
provisions of this SLA shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
TOWER COMPANY
SBA TOWERS, INC.
By:
-------------------------------------
Name:
-----------------------------------
CARRIER:
TRITEL COMMUNICATIONS, INC.
By:
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director, Site Acquisition and
Property Administration
19
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
20
EXHIBIT "B"
SURVEY OR MAP OF THE SITE WITH LOCATION OF TOWER AND
GROUND SPACE SHOWN AND GROUND SPACE CROSS-HATCHED
21
EXHIBIT "C"
LEGAL DESCRIPTION OF EASEMENTS
22
EXHIBIT "D"
EQUIPMENT LIST
23
EXHIBIT "E"
GROUND LEASE
24
EXHIBIT "F"
A COPY OF TITLE INSURANCE COMMITMENT FOR THE APPLICABLE
TOWER SITE AND ANY EASEMENTS
25
ATTACHMENT V
This instrument Prepared By: Site Name:___ Site ID:____ Indexing Instructions
---------------------------- ----------------------------
---------------------------- ----------------------------
---------------------------- ----------------------------
MEMORANDUM OF SITE LEASE AGREEMENT
This memorandum evidences that a lease was and hereby is made and entered into
by written Site Lease Agreement dated _______________________, 19_____, between
____________________________, a __________________ corporation ("Tower Company")
and TRITEL COMMUNICATIONS, INC., a Delaware corporation ("Carrier").
Such Agreement provides in part that Tower Company leases to Carrier and Tower
Company does hereby lease to Carrier space upon a tower (which tower is located
as shown on Exhibit "B") (the "Tower") between the heights of ________ and
________ above ground level, which Tower is located upon the real property
located at ______, City of _______, County of _______, State of ______, which
real property is described in EXHIBIT A attached hereto (the "Site" or the
"Property") and certain space ("Ground Space") upon the Property which is
described on Exhibit "B" or which is shown as the cross-hatched area on a plat
or survey attached hereto as Exhibit "B" with runs for cable, wiring, conduit,
etc. to the Tower and the Ground Space and with a grant of and Tower Company
hereby grants a non-exclusive easement for unrestricted rights of access thereto
and to electric and telephone facilities which are described on Exhibit "A"
and/or shown on Exhibit "B" such lease and easement to be for a term of five (5)
years commencing on ________, 19__, which term is subject to four (4) additional
five (5) year extension periods by Carrier.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the day and
year first above written.
TOWER COMPANY:
SBA TOWERS, INC.
BY:
--------------------------------
TITLE:
--------------------------------
DATE:
--------------------------------
TRITEL COMMUNICATIONS, INC.:
BY:
--------------------------------
TITLE:
--------------------------------
DATE:
--------------------------------
26
EXHIBIT "A"
Property
Attached hereto Metes and Bound Description of the Real Property
27
EXHIBIT "B"
GROUND SPACE:
ATTACH HERETO THE SITE PLAN FOR THE SITE WITH THE GROUND SPACE CROSS
HATCHED AND THE TOWER IDENTIFIED.
28
ATTACHMENT VI
SCHEDULES WITH MARKET SPECIFIC, INCLUDING WITHOUT LIMITATION REIMBURSEMENT OF
PRE-DEVELOPMENT COSTS, RENT, SCHEDULES FOR COMPLETION OF TOWER FACILITIES AND
DELIVERIES
See Schedules Attached
29
SCHEDULE 1 TO ATTACHMENT "VI"
OF MASTER LEASE BETWEEN
TOWER COMPANY AND CARRIER
MARKET SPECIFIC TERMS
1. CARRIER MARKET: Nashville Market - This Schedule shall apply to the Nashville
Market only.
2. NUMBER OF SITES: --
(a) Carrier shall and hereby grants to Tower Company the right to
develop, construct and lease a minimum of twenty-seven (27) Tower Facilities in
the Nashville Market more particularly described in Exhibit A attached hereto.
In the event that Carrier does not require the construction of 27 new Tower
Facilities in the Nashville Market during the 1999 calendar year, all of the new
Tower Facilities which Carrier must construct and install in the Nashville
Market in the 1999 calendar year, which Carrier intends to assign to a third
(3rd) party, shall be constructed, developed and owned by Tower Company. In the
event that the Tower Company elects not to accept an Applicable Tower Site or
otherwise terminates its obligations in regards to an Applicable Tower Site or
does not complete an Applicable Tower Site the total number of Tower Facilities
to be constructed in the Nashville Market by Tower Company will be reduced by
the number of Applicable Tower Sites rejected, terminated or not otherwise
completed.
(b) Subject to Tower Company's right to terminate its obligations with
respect to an Applicable Tower Site prior to commencement of construction of the
Tower Facilities pursuant to Section 2.1(b)(ii)(B) of the Master Lease, Tower
Company acknowledges and agrees that the Tower Company has agreed to accept
build, develop and lease all of the Tower Sites in the Nashville Market,
provided that such Tower Sites meet the following criteria:
(i) That the Tower Site can be operated as a multi-tenant tower
site; and
(ii) That the Tower Site is not adjacent in close proximity (within
one-half mile) to any other towers or tower sites which tower
has space upon it that is available for lease and which space is
actually available for lease to third parties upon a freely
commercial basis; and
(iii) That the Ground Lease does not contain any provisions which
require the Tower Company to pay additional rent in the event
that it subleases or licenses space to another party upon the
Tower Facility; and
(iv) That the Ground Lease and/or Government Approvals do not require
the Tower Company to place a stealth, camouflaged, disguised or
similar type tower facility upon the Tower Site.
Such Tower Facilities shall hereinafter be referred to as the
"Acceptable Tower Site Candidates."
Subject to the Tower Company's right to terminate its obligations with
respect to an Applicable Tower Site prior to commencement of construction of the
Tower Facilities pursuant to Section 2.1(b)(ii)(B) of the Master Lease, in the
event that the Tower Company rejects, does not accept or terminates its
obligations or otherwise fails to complete or does not otherwise complete the
construction and installation of Tower Facilities and the Carrier Equipment upon
twenty percent (20%) or more of the Acceptable Tower Site Candidates in the
Nashville Market, subject to the Force Majeure provisions set forth in Section
5.5(e) of the Master Lease, such actions shall constitute an Event of Default
under the Master Lease after fifteen (15) days written notice from Carrier, in
the event that such actions and failures are not cured within such fifteen (15)
day period. Upon the occurrence of such event of default, without further notice
or demand, the Carrier shall have the right to withhold and not provide or
assign any additional Tower Sites to the Tower Company for development or
construction and Tower Company shall
30
have no right to and hereby waives the right to require Carrier to assign or
otherwise provide it with any Tower Sites, Ground Leases, Pre-Development
Information or other information or documentation relating to any Tower Facility
or Tower Site not assigned to the Tower Company previous to the date of the
notice of the occurrence of event of default. In addition thereto, for any Tower
Sites which the Tower Company has not applied for a building permit, Carrier
shall have the right to require the Tower Company to assign or reassign any or
all Ground Leases under the Applicable Tower Sites in the Nashville Market to
Carrier or its assignee, to assign or reassign any or all Pre-Development
Information to Carrier or its assignee and to assign or reassign any other
easements, leases, licenses, subleases, contracts, suppliers contracts or
agreements regarding or related to any or all of the Applicable Tower Sites in
the Nashville Market to the Carrier or its assignee. In such event, Carrier
shall reimburse Tower Company for the Pre-Development Costs which Tower Company
actually incurred for Pre-Development Information which is reassigned to the
Carrier and which Pre-Development Information is reasonably acceptable to
Carrier up to the amounts listed for each milestone listed in Section 3 of this
Schedule.
3. PRE-DEVELOPMENT COSTS:
(a) For each Tower Site for which Carrier has obtained Pre-Development
Information, which Pre-Development Information is reasonably
acceptable to Tower Company or Carrier as may be applicable,
according to industry standards, Tower Company shall reimburse
Carrier for the Pre-Development Information for the Applicable
Tower Site within ten (10) days of the execution of the Assignment
based upon the following milestones (or in the event that the
Tower Company reassigns or assigns the Ground Lease and
Pre-Development Information to the Carrier pursuant to the
provisions of this Schedule or the Agreement, the Carrier shall
reimburse the Tower Company for such Pre-Development Information):
i) In the event that a Candidate Site Report, including the
identification of 3 leasable, zonable and constructable
candidates (or if Carrier has already approved a Tower Site
for the search ring based upon a radio-frequency analysis,
one (1) Tower Site), coordination of the site visit and
submission of reports regarding the zoning summary, permit
summary and a site sketch, for the Applicable Tower Site has
been obtained, the reimbursement shall be up to [CONFIDENTIAL
TREATMENT REQUESTED] per site for the Pre-Development Costs
which have been incurred in connection with obtaining the
Candidate Site Report.
ii) In the event that a fully executed Ground Lease for the
Applicable Tower Site has been obtained, the reimbursement
shall be up to [CONFIDENTIAL TREATMENT REQUESTED] per site
for the Pre-Development Costs, which have been incurred in
connection with obtaining the Ground Lease;
iii) In the event that a Ground Lease for the Applicable
Tower Site has been obtained and all the necessary zoning
approvals or administrative body or commission approval or a
confirmation that no further zoning approvals are required
for the Site, the reimbursement shall be up to [CONFIDENTIAL
TREATMENT REQUESTED] per Tower Site for the Pre-Development
Costs which have been incurred in connection with obtaining
the Ground Lease and zoning approvals for the Applicable
Tower Site. Zoning approvals do not include or mean building
permits;
iv) In the event that a geotechnical analysis for the
Applicable Tower Site has been obtained, the reimbursement
shall be up to [CONFIDENTIAL TREATMENT
31
REQUESTED] per Tower Site for the Pre-Development Costs which
have been incurred in connection with obtaining the
geotechnical analysis for the Applicable Tower Site;
v) In the event a complete environmental study for the
Applicable Tower Site has been obtained, the reimbursement
shall be up to [CONFIDENTIAL TREATMENT REQUESTED] per Tower
Site for the Pre-Development Costs which have been incurred
in connection with obtaining the environmental study for the
Applicable Tower Site;
vi) In the event a title insurance commitment or title report
for the Applicable Tower Site has been obtained, the
reimbursement shall be up to [CONFIDENTIAL TREATMENT
REQUESTED] per Tower Site for the Pre-Development Costs which
have been incurred in connection with obtaining the title
insurance commitment or title report for the Applicable Tower
Site; in the event that the actual cost of the title
insurance commitment or report is more than [CONFIDENTIAL
TREATMENT REQUESTED], the reimbursing party shall pay for the
actual cost of the title upon the submission of a copy of the
actual invoice up [CONFIDENTIAL TREATMENT REQUESTED];
vii) In the event a survey for the Applicable Tower Site has
been obtained, the reimbursement shall be up to [CONFIDENTIAL
TREATMENT REQUESTED] per Tower Site for the Pre-Development
Costs which have been incurred in connection with obtaining
the survey for the Applicable Tower Site;
viii) In the event Federal Aviation Administration Approval
for the Applicable Tower Site has been obtained,
reimbursement shall be up to [CONFIDENTIAL TREATMENT
REQUESTED] per Tower Site for the Pre-Development Costs which
have been incurred in connection with obtaining Federal
Aviation Administration Approval;
ix) In the event that a Ground Lease, Zoning Approvals and
the complete survey and architectural and engineering
designs, plans and specifications for the Applicable Tower
Site have been obtained, the reimbursement shall be up to
[CONFIDENTIAL TREATMENT REQUESTED] per Tower Site for the
Pre-Development costs which have been obtained in connection
with obtaining the Ground Lease, zoning approval and survey
and architectural and engineering designs, plans and
specifications for the Applicable Tower Site. The items in
Paragraph 3(a)(i) through 3(a)(viii) are included in the
amount to be reimbursed under 3(a)(ix) and neither party
shall be entitled to recover the amounts provided in
Paragraphs 3(a)(i) through 3(a)(viii) in addition to the
amount to be paid under Paragraph 3(a)(ix); and
x) In the event that the Ground Lease, all Pre-Development
Information, and all building permits for the Applicable
Tower Site have been obtained, the reimbursement shall be up
to [CONFIDENTIAL TREATMENT REQUESTED] per Tower Site for the
Pre-Development Costs which have been obtained in connection
with obtaining the Ground Lease and building permits for the
Applicable Tower Site. The items in Paragraph 3(a)(i) through
3(a)(ix) are included in the amount to be reimbursed under
3(a)(x) and neither party shall be entitled to recover the
amounts provided
32
in Paragraphs 3(a)(i) through (3)(a)(ix) in addition to the
amounts to be paid under Paragraph 3(a)(x).
The payment for reimbursement of Pre-Development Information shall be
made within thirty (30) days of the date that the Assignment is executed by both
parties.
4. SCHEDULE OF COMPLETION:
a) Tower Company and Carrier will agree on or before June 4, 1999 upon
a schedule for the delivery of building permits for each Applicable Tower Site
and such schedule and the terms thereof shall be attached to this Schedule 1 as
Exhibit "A" and incorporated herein as if recited, upon the execution of such
exhibit by the duly authorized officers of Carrier and Tower Company. Tower
Company shall deliver to Carrier all Pre-Development Information, a building
permit and any other permits necessary for the commencement of construction upon
an Applicable Tower Site by the dates listed beside each Tower Site on Exhibit
"A" which shall be attached to this Schedule 1. In the event that the Tower
Company has not delivered all Pre-Development Information to the Carrier which
Carrier deems reasonably necessary for the completion of construction of the
Tower Facilities upon the Applicable Tower Site, including without limitation a
building permit, on or before the date listed next to each Applicable Tower Site
or Search Ring listed in Exhibit "A", subject to delays from substantial labor
disputes, fire, unusual delay in deliveries not caused by or contributed to by
Tower Company or its contractors, abnormal adverse weather conditions not
reasonably anticipated, or government actions or inactions not caused or
contributed to by Tower Company, or other unavoidable casualties or similar
causes beyond reasonable control of Tower Company or Tower Company's contractor,
Carrier shall have the right to terminate the Notice of Acceptance and its
obligations with respect to the Applicable Tower Site by providing the Tower
Company notice of such termination. In the event that the applicable SLA has
been signed and executed, it shall be deemed terminated and void without further
notice or agreement. Additionally upon such termination, Tower Company shall
assign or reassign and deliver to Carrier any Ground Lease, Pre-Development
Information and any other contracts, agreements, leases, subleases, contracts,
suppliers contracts or documents related to the Applicable Tower Site which
Tower Company may have regarding the Applicable Tower Site and Carrier shall
assume any reasonable obligations thereunder, the cost of which are provided for
under this Agreement or the SLA and Carrier shall be obligated to the Tower
Company for the Pre-Development Costs which have been agreed upon pursuant to
the terms of this Agreement, including without limitation any Pre-Development
Costs previously reimbursed by the Tower Company to the Carrier. In the event
that the Tower Company fails to deliver the building permit by the deadlines
imposed upon Schedule I and Exhibit A for any specific Tower Site (but not more
than twenty percent (20%) of the Tower Sites), such single failure shall not
give Carrier the right to terminate the Master Lease.
b) Subject to Tower Company's right to terminate its obligations with
respect to an Applicable Tower Site prior to commencement of construction of the
Tower Facilities pursuant to Section 2.1(b)(ii) (B) of the Master Lease, and, in
the event that Tower Company fails to deliver all Pre-Development Information
and the building permits for twenty percent (20%) or more Tower Sites for which
Tower Company has given Carrier a Notice of Acceptance on or before the dates
listed on Exhibit "A" as may be extended from time to time by mutual agreement
or pursuant to the force majeure provision of Paragraph 5.5 (e) of this
Agreement, such event shall constitute an Event of Default under the terms of
this Agreement, and in addition to the remedy provided above, Carrier shall be
entitled to all other remedies available under this Agreement and at equity or
law.
c) Tower Company shall deliver, construct, complete, install and
deliver each Tower Facility and all of the Carrier Equipment upon the Applicable
Tower Site within sixty (60) days of the issuance of a building permit for the
Applicable Tower Site excepting those Applicable Tower Sites
33
delayed by Carrier's actions or inactions or those Tower Sites delayed beyond
Tower Company's control, including, but not limited to, governmental approvals,
moratoria, FAA or force majeure.
d) The timely completion and installation of the Tower Facilities and
Carrier Equipment is of the essence in this Agreement and each SLA, and by
execution of this Schedule, Tower Company confirms that the completion dates
provided in this Schedule and exhibit provide a reasonable period for the
completion and installation of the Tower Facilities and the Carrier Equipment.
Tower Company acknowledges that if Tower Company does not complete the Tower
Facilities and the installation of the Carrier Equipment within sixty (60) days
of the issuance of a building permit, Carrier will incur substantial damages
from, among other things, the delayed operation of the Carrier Equipment. If the
Tower Facilities and Carrier Equipment are not completed and installed within
sixty (60) days of the issuance of a building permit, and provided that Tower
Company has not reassigned or assigned the Ground Lease and all Pre-Development
Information to the Carrier, Tower Company must pay to Carrier the sum of
[CONFIDENTIAL TREATMENT REQUESTED] per week (or any portion thereof) per Tower
Facility beyond the completion date until the Tower Facilities have been
completed.
5. RENT:
(a) Initial Term. As consideration for the use and occupancy of the
Premises under any SLA during the Initial Term, Carrier shall pay Tower Company
or such entity as Tower Company may designate from time to time, on the first
day of each calendar month during the Initial Term, the sum of [CONFIDENTIAL
TREATMENT REQUESTED] per month, except as may otherwise be provided in an SLA
for an Applicable Tower Site (the "Rent"). Rent shall be payable on the first
day of each month in advance to Tower Company at Tower Company's address as
specified in Paragraph 4.5(t) of the Master Lease. In the event that the
Commencement Date is other than the first day of a calendar month, Rent shall be
prorated over the number of days remaining in the month in which the SLA
commenced and shall thereafter be paid on the first day of each calendar month.
Tower Company and Carrier shall execute a letter agreement to attach to each SLA
to confirm the amount of the Rent.
(b) Renewal Terms. In the event that Carrier elects to renew an SLA as
provided in paragraph 3.5 of the Master Lease, Rent shall be increased by
[CONFIDENTIAL TREATMENT REQUESTED] over the Rent accruing under the immediately
prior term of the SLA.
(c) Lowest Rent. Tower Company further agrees that Carrier will be
deemed to be Tower Company's most important and favored customer at any
Applicable Tower Site and will always receive priority in terms of rent payable
for the use of any portion of any Applicable Tower Site. Upon entering into an
agreement which allows an entity which has similar operations to Carrier (i.e.)
(i) the provision of analog or digital telecommunications services to the
public, and such tenant intends to lease a similar amount of space upon the
Tower Facilities and the Site or (ii) intends to place transmitting equipment of
the same magnitude and nature upon the Tower Facility to attach equipment to the
Tower Facilities on a Site (a "Subsequent User"), Tower Company must deliver to
Carrier a copy of the fully executed agreement with a Subsequent User. If the
rent or other compensation paid by a Subsequent User is less than the Rent paid
by Carrier for the use of the Premises on the Site, the Rent for that Site will
be reduced to an amount equal to the rent or other compensation payable by the
Subsequent User. Any reduction in Rent for the use of a Site will commence on
the date that the Subsequent User commences rent payments, and the Rent
reduction will continue throughout the remainder of the term of the Subsequent
User's lease for so long as the compensation paid by the Subsequent User is less
than that paid by Carrier (including any Renewal Terms). The parties will enter
into an amendment to the SLA for that Site specifying the new Rent payable by
Carrier and the commencement date of the reduced Rent. Notwithstanding the
foregoing, in the event that the Subsequent User's rent is reduced because of
other compensation paid to the Tower Company (which may or may not be related to
the rent), Tower Company and Carrier will
34
compute and agree upon the "true value" of the Subsequent user's rental amount
based upon all factors, elements and components which were consideration for the
setting of the Subsequent Use s rent (by the Tower Company) and reach a mutual
agreement as to the amount (if any) that Carrier's Rent should be reduced.
6. Installation of Carrier Equipment. Carrier and Tower Company acknowledge and
agree that Tower Company shall be obligated to perform the services described in
Paragraph 6 and to provide the materials set forth in Exhibit B attached hereto
with respect to the Carrier Equipment in accordance with the Plans provided to
Tower Company by Carrier pursuant to this Agreement (collectively, the "Carrier
Equipment Work"), and Carrier shall perform all other obligations with respect
to the installation of the Carrier Equipment, including (i) purchasing,
delivering and setting Carrier's cabinet upon the Premises, and (ii) purchasing
and delivering Carrier's coaxial cable, connectors, jumpers and antennae.
a. Materials - Tower Company shall provide the materials set forth in
Exhibit B attached hereto.
b. Project and Construction Management - Tower Company shall perform civil
construction activities, including project management (scheduling, cost
tracking and reporting, expediting, resource allocation) and
construction management (subcontractor qualification, bidding/bid
walk/bid review and award, on-site construction supervision and punch
list resolution). Tower Company will assign both a project manager and
a construction manager to work with Carrier throughout the construction
and installation of the Carrier Equipment upon the Tower Facilities and
the Applicable Tower Site. Said managers will be responsible for the
coordination, scheduling, tracking and reporting of all development
tasks Tower Company is performing for Carrier at all Sites, and will
work closely with appropriate Carrier personnel to ensure the timely
quality implementation of Carrier's equipment at the Sites.
c. Equipment Pad Installation - Tower Company will install, per Carrier's
specifications, up to a 10' x 15' monolithic concrete equipment pad
inside the Applicable Tower Site compound area.
d. Power and Telephone Utilities Installation - Tower Company will bring
dedicated 200 Amp electrical service to the Carrier Equipment by
providing a 200 Amp meter base separated for (a) 100 Amp disconnect for
Carrier's initial equipment, and (b) 100 Amp disconnect for Carrier's
future equipment. Tower Company will install two (2) 2" Schedule 40 PVC
underground conduits with pull strings from the Applicable Tower Site's
common telephone utility points of demarcation to Carrier's Equipment
location on the ground. Carrier will separately meter its electric
utility service. Carrier will be responsible for placing service orders
with the electric and telephone service providers at the Site. Tower
Company will coordinate the utility site walk with the utility
companies. Tower Company will obtain all easements and/or right-of-ways
needed for the provision of utility service to Carrier.
e. Antenna System Installation - Carrier will provide their antennae,
coaxial cable, jumpers and connectors at Carrier's sole cost and
expense and shall delivery the antennae, coaxial cable, jumpers and
connectors to the Tower Site for installation by Tower Company upon
five (5) days prior written notice by Tower Company to the Carrier.
Tower Company shall provide and deliver to Carrier a detailed receipt
of all such deliveries. The Tower Company shall perform
35
mobilization and install nine (9) lines, nine (9) antennae and mounts
at the height agreed to by Carrier and Tower Company in the SLA.
Additionally, if required by Carrier, Tower Company will install one
(1) microwave dish. The Tower Company shall supply and install a
waveguide ladder, sector mounts, any microwave mounts and a 10'
waveguide bridge from the Tower to Carrier's Equipment. The Tower
Company shall install the antennae system by the date described in
Section 4 of this Schedule. Carrier will retain responsibility for the
storage, delivery, offloading and installation of their electronics
cabinets or frames. Tower Company shall perform the sweep tests upon
completion of the installation, provided that Carrier provides Tower
Company with Carrier's sweep test requirements simultaneously with the
delivery of the Plans, and the sweep tests will be subject to Carrier's
approval, which approval shall not be unreasonably withheld, delayed or
conditioned.
f. Grounding System - Tower Company will install a buried ring ground
around Carrier's equipment pad or foundation, connect this ring to the
main site ground ring and provide a stub to connect to Carrier's main
grounding bus bar (or similar connection) using 5/8" x 10'-0" stainless
steel or galvanized ground rods at 10' on centers. Tower Company will
also connect the tower-mounted coax grounding kits to a grounding bus
connected to the primary site grounding system. Tower Company will make
the final connection of the ground ring stub and the final coax
grounding kit connections to their main equipment ground bus at the
time of the electronics equipment installation. Ground ring connections
will be cadwelded while coax grounding kit connections will be
mechanical. Single point grounding must be maintained to ensure the
integrity of the overall site ground. Carrier may perform grounding
tests upon completion of the grounding system and Carrier's approval of
such grounding tests shall not be unreasonably withheld, delayed or
conditioned.
g. As Built Drawings - Tower Company will provide as-built drawings to
Carrier of each Applicable Tower Site which detail all pertinent
information relating to Carrier's equipment and antenna system at the
Applicable Tower Site and shall substantially conform to the
specifications supplied by Carrier.
h. Punch List & Acceptance - Upon final completion of the Carrier's
Equipment Installation at each Applicable Tower Site by Tower Company
in accordance with the provisions of this Agreement, Tower Company
shall request, in writing, final inspection of the Applicable Tower
Site, which inspection shall include review of the sweep tests. Carrier
will inspect the Carrier's Equipment Installation within three (3)
business days of the receipt of Tower Company's notice that the Carrier
Equipment installation is complete. Within three (3) business days of
inspection, Carrier will either provide a signed writing evidencing
final acceptance of the Carrier Equipment Installation or, through the
use of a punch list form, advise Tower Company of the portions of the
Carrier Equipment Installation that are defective or incomplete or of
obligations that have not been fulfilled but are required for final
acceptance. Any failure of Carrier to complete such inspection or punch
list within such three (3) day periods shall not constitute an Event of
Default under the terms of this Schedule, the Agreement or any SLA, but
in such event the completion dates for installation of the Carrier
Equipment in this Schedule shall be extended automatically an
additional day for each day beyond the three (3) day period that
Carrier delays such inspection and/or punch list. Tower Company shall
complete any unfinished or defective portion of the Carrier Equipment
Installation which are necessary to install and operate Carrier's
equipment within ten (10) business days following issuance of the punch
list, subject to an extension as needed for completion if Tower Company
has made diligent efforts to cure the Punch List items within the ten
(10) day period, and was unable to complete the Punch List items for
reasons beyond the reasonable control of Tower Company. Carrier shall
not be deemed to have accepted the Carrier Equipment Installation as
complete until completion of all items on the Punch List.
36
i. Change Order - If materials, equipment or labor are required in
response to a request of Carrier to alter the Applicable Tower Site or
expand the Carrier Equipment Installation (i.e. a "Change Order"), and
such Change Order is not within the Carrier Equipment Installation
covered by the scope of work identified in this Schedule, Tower Company
may, at its discretion, supply such materials, equipment or labor
itself or obtain them from independent contractors, provided that the
delegation of such services do not substantially delegate all of Tower
Company's obligations under this Agreement. If Tower Company supplies
any materials, equipment or labor in addition to the scope of work
provided herein, it shall be at a reasonable rate mutually agreed upon
by Carrier and Tower Company, which shall be no more than the
prevailing rate in the industry.
j. Permits - Tower Company shall obtain, at its expense, all necessary
local and municipal permits, licenses, inspections, certificates and
approvals necessary to complete the Carrier Equipment Installation, and
shall ensure compliance with all state environmental laws. Tower
Company shall pay all fees for such permits, licenses, inspections,
certificates or approvals to the appropriate government body or other
entity.k. Tower Company shall not cause or allow (which shall mean any
occurrence or item which is within the Tower Company's Control) any
involuntary liens or encumbrances to be recorded against the Tower
Facilities or the Carrier Equipment, including without limitation,
liens and encumbrances (a) arising out of or related to the performance
of the construction, all liens and encumbrances of any contractors,
subcontractor, laborer, mechanic or materialman for labor performed or
material furnished in connection with the performance of the
construction; (b) liens or encumbrances arising from taxes or
assessments, except for liens and encumbrances for taxes or assessments
which are not yet due and payable; or (c) liens or encumbrances which
may materially adversely impair Carrier's interest. In the event any
such lien or encumbrance is recorded against all or any part of the
Tower Facilities or the Carrier Equipment, Tower Company shall, within
thirty (30) days after its receipt of notice that such a lien or
encumbrance has been recorded, either (a) have such lien or encumbrance
released of record, or (b) deliver to Carrier a bond, in form, content
and amount, an issued by a surety, reasonably satisfactory to carrier,
indemnifying Carrier against all costs and liabilities resulting from
such lien or encumbrance. Upon the delivery to Carrier of the bond
specified in alternative (b) above, Tower Company may contest the
validity of such lien or encumbrance. Once such a lien or encumbrance
is released of record, for any reason, any bond provided to Carrier
hereunder shall be released and returned to Tower Company.
1. Payment for Carrier Installation Work -- Carrier shall pay the Tower
Company [CONFIDENTIAL TREATMENT REQUESTED] for the installation of the
Carrier Equipment as contemplated in Section 6 of this Schedule, within
thirty (30) days after Tower Company has completed the installation of
the Carrier Equipment and receipt of an invoice from Tower Company, and
has been accepted by Carrier pursuant to Punch List in paragraph 6(g)
of this Schedule. The parties agree, however, that the cost for any
services or equipment that Carrier requires Tower Company to provide in
addition to those specified in or contemplated by this paragraph 6,
shall be charged as an additional cost in an amount to be mutually
agreed upon by the parties.
7. REPRESENTATIONS - Notwithstanding any other provision contained in
this Schedule or any other terms of this Agreement, the following terms and
conditions shall apply with respect to the materials, equipment and services
provided hereunder:
a) Tower Company, its agents, subcontractors, and employees shall
perform the Carrier Equipment Installation as independent
contractors, and not as agents, partners, joint
37
venturers or employees of Carrier. Tower Company shall supervise
and direct the Carrier Equipment Installation, using the care and
skill ordinarily used by members of Tower Company's profession
practicing under similar conditions at the same time and in the
same geographic area, and Tower Company shall be solely
responsible for all construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the
Carrier Equipment Installation.
b) Unless otherwise specifically provided in the Carrier Equipment
Installation, Tower Company shall provide and pay for all labor,
supervision, materials, construction surveys and layout,
equipment, tools, construction equipment and machinery, water,
heat, utilities, transportation, and other facilities and services
necessary for the proper execution and completion of the
Applicable Tower Site consistent with the terms of this Schedule
and the Agreement.
c) Tower Company shall at all times enforce strict discipline and
good order among its employees.
d) Tower Company hereby represents and warrants to Carrier that all
materials and equipment incorporated in the Applicable Tower Site
by Tower Company will be new unless otherwise requested in writing
by Tower Company and agreed to in writing by Carrier prior to
their use and all such materials and equipment shall be of good
quality. Tower Company further represents and warrants that the
Carrier's Equipment Installation to be performed under this
Agreement, and all workmanship, materials and equipment provided,
furnished, used or installed in construction of the same by Tower
Company, shall be safe, substantial, good quality and durable
construction in all respects, and that all of the Carrier's
Equipment installation will be free from faults and defects which
impact the operation of the Carrier Equipment, and in conformance
with the terms of this Agreement. The warranty for the services
provided by Tower Company at each Applicable Tower Site shall be
for a period of twelve (12) months from the date of full
acceptance of the Site by Carrier (the "Warranty Period"). Tower
Company represents, warrants and agrees that the Carrier Equipment
shall be constructed and installed in a good and workmanlike
manner and in accordance with the plans and specifications for the
installation of the Carrier Equipment and all applicable federal,
state and local laws, ordinances, rules and regulations and shall
be of good quality, free from faults and patent defects.
e) Tower Company agrees to correct any defective portion of the
Applicable Tower Site or the Carrier Premises that was constructed
or installed by Tower Company which occurs or accrues during the
Warranty Period and which Carrier provides Tower Company notice of
within nine (9) months of the expiration of the warranty period.
Upon Tower Company's receipt of written notice of a defect in the
Applicable Tower Site or the Carrier Premises that arises from
construction or installation performed by Tower Company, Tower
Company will examine the defect within ten (10) days notice of the
defect. If there is a defect, Tower Company will pay all expenses
of such examination. If, however, there is no defect, Carrier will
pay all expenses of such examination. If Tower Company fails,
after ten (10) days following written notice from Carrier: (i) to
commence and continue correction of such defective Carrier
Equipment Installation with diligence and promptness; (ii) to
perform the Carrier Equipment Installation; or (iii) to comply
with any other provision of this Agreement, Carrier may correct
and remedy any such deficiency in addition to any other remedies
it may have. Tower Company shall not be responsible for reasonable
delays caused by inclement weather that would delay a
38
reasonable contractor's performance of the installation of a
wireless antennae system substantially similar to the Carrier
Equipment Installation set forth herein.
f) Tower Company shall supervise and direct the Carrier Equipment
Work using Tower Company's professional skill and attention. Tower
Company shall be solely responsible for and have control over
construction means, methods, techniques, sequences and procedures
and for coordinating all portions of the Carrier Equipment Work on
the Tower Facilities under this Agreement excluding the placement
and setting of any cabinet or shelter and equipment contained
therein; and.
g) Tower Company shall enforce strict discipline and good order among
the employees and other persons carrying out this Agreement. Tower
Company shall not permit continued employment of unfit persons or
persons not skilled in tasks assigned to them who are performing
work in connection with this Agreement; and
h) Tower Company shall provide Carrier (and its employees, agents and
contractors) access to the Carrier Equipment Work in preparation
and progress wherever located, provided that such access shall not
interfere with the Carrier Equipment Work; and
i) Tower Company shall pay all royalties and license fees; shall
defend suits or claims for infringement of patent rights and shall
hold Carrier harmless from loss on account thereof, but shall not
be responsible for such defense or loss when a particular design,
process or product of a particular manufacturer or manufacturers
is required by or supplied by Carrier unless Tower Company has
reason to believe that there is an infringement of patent.
j) Tower Company shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with
the performance of the Agreement. Tower Company shall take
reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury or loss to:
(1) employees on the Carrier Equipment Work, the Tower
Facilities or the Applicable Tower Site and other persons who
may be affected thereby;
(2) the Carrier Equipment Work, the Tower Facilities, the
Applicable Tower Site and materials and equipment to be
incorporated therein; and
(3) other property at the Applicable Tower Site or adjacent
thereto.
8. DEFINITION OF CARRIER EQUIPMENT. "Carrier's Equipment" or "Carrier Equipment"
shall mean the equipment that may be installed at the Tower Site by the Carrier
which would not exceed (a) nine panel antennae and line or its equivalent and
not more than fifteen (15) feet of vertical space upon the Tower Facilities
including any vertical separation and (b) ground space sufficient to encompass a
ten (10) foot by fifteen (15) foot pad.
9. SCHEDULE IS MODIFICATION. This Schedule shall be added to and modify the
terms and conditions of the Master Lease and hereby is incorporated into the
terms of the Master Lease. In the event that there is a conflict or
contradiction between the terms and conditions of the Master Lease and this
Schedule, the terms and conditions of this Schedule shall control.
39
IN WITNESS WHEREOF, Tower Company and Carrier have signed this Schedule as of
the date and year first above written.
CARRIER: TOWER COMPANY:
TRITEL COMMUNICATIONS, INC. SBA TOWERS, INC.
By: By:
----------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx
President Vice President of Sales & Marketing
40
EXHIBIT B CSSI MATERIAL TAKE-OFF FORM
CLIENT: #REF! SITE NAME: #REF! BID #: 1597
------------ ---------------------- -----
TOWER TYPE: #REF! SITE NO.: ANT. HT. 190'
====================================================================================================================================
QTY. DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
ANTENNASCOMSAT PCSS065-13
10' Waveguide Bridge
4 GROUND BAR 24"
GROUND BAR 30"
GROUND BAR 48" ANGLE
7/8" COMSCOPE COAX
7/8" COMSCOPE CONNECTORS
7/8" GND.KIT-FIELD ATTACK-2 HOLE LUG, 36" (Comscope) SNAP IN
HANGER KIT (10) 7/8" (Comscope) HANGER KIT - STANDARD (10) 7/8"
(Comscope) 7/8" HOISTING GRIP (Comscope) 1-5/8 COMSCOPE COAX
1-5/8" COMSCOPE CONNECTORS
27 1-5/8" GRD.KIT-FIELD ATTACH. - 2 HOLE LUG, 36" (Comscope)
50 SNAP IN HANGER KIT (10) 1 5/8" (Comscope)
2 HANGER KIT-STANDARD (10) 15/8" (Comscope)
9 1 5/8" CABLE HOISTING GRIP (Comscope)
8 WEATHERPROOFING / SPLICE PROTECTION KIT
5 ANGLE MEMBER ADAPTER KIT (10) UNIVERSAL
5 ROUND MEMBER ADAPTER KIT (10) 2"-3"
6' JUMPER - PDMNM-6- /12" FLC PREMIUM (Comscope)
ORIGINAL MATERIAL TOTAL [CONFIDENTIAL
TREATMENT
REQUESTED]
------------------------------------------------------------------------------------------------------------------------------------
41
ATTACHMENT VII
NOTICE OF COMPLETION OF TOWER FACILITIES
Carrier
Re: Notice of Completion of Tower Facilities ("Notice") for
Site #__________ ("____________ Site")
Dear ____________:
On the _____ day of ______________, ____ the Tower Facilities at the
__________ Site were completed in accordance with the terms and conditions of
the Master Lease between Tower Company and Carrier. Pursuant to Paragraph 3.8 of
the Master Lease, Carrier has a period of three (3) days after the date of this
Notice of Completion to provide a Punch List of items to be completed by Tower
Company in order to render the Tower Facilities completed in accordance with the
Plans and Specifications in the opinion of Carrier.
Sincerely,
-------------------------------
42
ATTACHMENT VIII
_____________, 19__
-----------------------------------
-----------------------------------
-----------------------------------
Re: Site Lease Agreement
Site:
Dear ________________________:
Tritel Communications, Inc. ("Carrier") and _________________________(the
"Tower Company") entered into a Site Lease Agreement for the above-captioned
site. The Site Lease Agreement provides that Carrier and Tower Company shall
execute a letter agreement which shall be attached to the SLA confirming the
calendar date which the parties understand to be the Commencement Date for each
SLA.
Carrier and Tower Company agree that the Commencement Date for the
above-referenced site is _________________________.
By countersigning this letter, Tower Company acknowledges and agrees to the
Commencement Date listed above for the Site. This letter shall constitute an
amendment to the Site Lease Agreement.
TRITEL COMMUNICATIONS, INC.
By:
-----------------------------------------
Xxxxxxx Xxxxxx
Its: Director, Site Acquisition and Property
Administration
Acknowledged and Agreed to this ____ day of _______________, ____.
SBA Towers, Inc.
By:
------------------------------
Its:
-----------------------------
43
ATTACHMENT IX
LIST OF NON-CARRIER PERSONNEL
APPROVED TO HAVE ACCESS TO TOWER SITES
EMPLOYEES, OFFICERS AND DIRECTORS OF ERICSSON, INC.
EMPLOYEES, OFFICERS AND DIRECTORS OF BECHTEL TELECOMMUNICATIONS
EMPLOYEES, OFFICERS AND DIRECTORS OF GALAXY ENGINEERING
SERVICES (A SUBSIDIARY OF WORLD ACCESS, INC.)
44
EXHIBIT B CSSI MATERIAL TAKE-OFF FORM
------------------------------------------------------------------------------------------------------------------------------------
CLIENT: #REF! SITE NAME: #REF! BID #: 1597
------------ ---------------------- -----
TOWER TYPE: #REF! SITE NO.: ANT. HT. 190'
------------------------------------------------------------------------------------------------------------------------------------
QTY. DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
ANTENNASCOMSAT PCSS065-13
10' Waveguide Bridge
4 GROUND BAR 24"
GROUND BAR 30"
GROUND BAR 48" ANGLE
7/8" COMSCOPE COAX
7/8" COMSCOPE CONNECTORS
7/8" GND.KIT-FIELD ATTACK-2 HOLE LUG, 36" (Comscope) SNAP IN
HANGER KIT (10) 7/8" (Comscope) HANGER KIT - STANDARD (10) 7/8"
(Comscope) 7/8" HOISTING GRIP (Comscope) 1-5/8 COMSCOPE COAX
1-5/8" COMSCOPE CONNECTORS
27 1 5/8" GRD.KIT-FIELD ATTACH. - 2 HOLE LUG, 36" (Comscope)
50 SNAP IN HANGER KIT (10) 1 5/8" (Comscope)
2 HANGER KIT-STANDARD (10) 15/8" (Comscope)
9 1 5/8" CABLE HOISTING GRIP (Comscope)
8 WEATHERPROOFING / SPLICE PROTECTION KIT
5 ANGLE MEMBER ADAPTER KIT (10) UNIVERSAL
5 ROUND MEMBER ADAPTER KIT (10) 2"-3"
6' JUMPER - PDMNM-6- /12"FLC PREMIUM (Comscope)
ORIGINAL MATERIAL TOTAL [CONFIDENTIAL
TREATMENT
REQUESTED]
------------------------------------------------------------------------------------------------------------------------------------
45
EXHIBIT A TO SCHEDULE 1
Client / Project Location: TriTel Comm. Inc./Nashville, TN
Prepared by: Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
SITE REGION CLIENT SBA SEARCH AREA LATITUDE LONGITUDE TOWER TOWER FORECAST FORECAST
TYPE SITE I.D. SITE I.D. NAME TYPE HEIGHT ZONING BP
(BTS OR NUMBER NUMBER RECEIVED RECEIVED
SITE DEV)
FORECAST FORECAST
------------------------------------------------------------------------------------------------------------------------------------
1 B MA 083-193 TNTT10080-001 Xxxxx Brothers 36 24 33 87 12 7.5 Guyed 300' 7/27/99 8/3/99
2 B MA 314-006 XXXX00000-000 Xxxxx Xxxxxx 36 08 28.4 86 46 04.7 MP 150' 7/9/99 7/9/99
3 B MA 341-020 TNTT10080-003 Whites Creek 36 14 51.9 86 47 9.5 MP 190' 7/23/99 7/23/99
0 X XX 000-000 XXXX00000-000 Xxxxx Xxxx 36 13 10.4 86 43 42.5 MP 150' 7/9/99 7/9/99
5 B MA 314-039 TNTT10080-005 Xxxxxxxx West 36 10 31.5 86 40 58 Flag Pole 100' 8/4/99 8/4/99
6 B MA 314-043 TNTT10080-006 Xxxxxxxx 36 14 36.8 86 30 .01 MP 190' 5/21/99 6/19/99
0 X XX 000-000 XXXX00000-000 Xxxxxxxx 36 17 35 86 26 12.5 MP 185' 5/21/99 6/19/99
8 B MA 314-117 XXXX00000-000 Xxxxxxxxxx Oil Co 35 52 37 86 25 42 MP 150' 8/9/99 8/13/99
9 B MA 314-119 XXXX00000-000 Xxxx Xxxxx Xxxx 35 52 01 86 23 15 MP 130' 8/30/99 9/6/99
10 B MA 314-121 XXXX00000-000 Xxx Xxxxxxx Xxxx 36 06 1.7 86 52 18.9 MP 180' 7/23/99 7/23/99
11 B MA 314-127 TNTT10080-011 Sockit 36 01 29.1 86 53 10.4 MP 160' 8/30/99 9/6/99
12 B MA 314-149 TNTT10080-0012 Xxxxxxxx Station 35 47 21.6 86 54 27.8 MP 150' 7/27/99 8/3/99
13 B MA 314-150 XXXX00000-000 Xxxxxxxx 36 00 01.3 86 32 37.9 MP 150' 6/28/99 7/5/99
14 B MA 314-157 XXXX00000-000 Xxx Xxx 00X 35 32 53 86 59 39.1 Guyed 250' 6/9/99 6/18/99
15 B MA 314-175 XXXX00000-000 Xxxxx Xxxxx 36 11 90.4 86 33 40.0 Guyed 250' 5/21/99 6/19/99
16 B MA 314-183 XXXX00000-000 Xxxx Xx 35 34 43.6 87 08 03.7 Guyed 250' 6/9/99 6/18/99
17 B MA 314-184 XXXX00000-000 Xxx 00 Xxxx 35 37 6.9 87 8 14.1 Guyed 250' 6/9/99 6/18/99
18 B MA 314-185 XXXX00000-000 Xxxx Xxxx Xx. 35 37 59.9 86 57 24.7 Guyed 250' 6/7/99 6/11/99
19 B MA 314-182 XXXX00000-000 Xxxxxxxx South 35 34 52.1 87 02 54.4 Guyed 250' 6/9/99 6/18/99
20 B MA 083-196 TNTT10080-020 Memorial XxXxxxxxx 36 33 55 87 24 02 250' 7/27/99 8/3/99
21 B MA 314-017 TNTT10080-021 Hyedes Ferry Pike 36 12 17.7 86 51 15.5 MP 150' 7/23/99 7/23/99
22 B MA 314-055 TNTT10080-022 Lakeside 36 17 58.2 86 29 26.6 Guyed 250' 7/16/99 7/23/99
23 B MA 314-107 TNTT10080-023 Buckeye Bottom 35 58 25.3 86 26 54.6 MP 190' 7/14/99 7/21/99
24 B MA 314-144 TNTT10080-024 Xxxxxxxx Xxxx 35 55 37.3 86 54 09 MP 150' 7/26/99 8/2/99
25 B MA 314-173 XXXX00000-000 Xxxxxxxxx 36 13 28.1 86 33 23.3 190' 8/20/99 8/25/99
26 B MA 314-192 XXXX00000-000 Xxxxxxxxxxxx Xxxx 36 27 14.7 86 07 22.2 Lattice 300' 7/30/99 8/6/99
====================================================================================================================================
TOTAL SITES COMPLETE MONTH TO DATE 0 0
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TOTAL SITES 26 26
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SBA Towers, Inc. Tritel Communications, Inc.
By: By:
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Title: Title:
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Name: Name:
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Date: Date:
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