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 AMERICAN TOWER, L.P., a Delaware
limited partnership ("Tower Company").
WHEREAS, Carrier has licenses to provide personal communications
service ("PCS") in the states of Alabama, Florida, Mississippi, Tennessee,
Kentucky and any additional state or markets in which 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 the 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:
"APPLICABLE TOWER SITE" shall mean a site where Carrier intends to place,
develop or construct a tower.
"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 to be
located at the Site by Carrier which shall be described in each Site Lease
Agreement.
"CARRIER 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 BTA
o Nashville market which encompasses the Nashville BTAs
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
o Montgomery, Alabama market which encompasses the Montgomery and Decatur BTAs
o Any other market in which Carrier does business and is specifically
identified in a Schedule
"CARRIER SPECIFICATIONS" shall mean the specifications of Carrier necessary and
applicable to the Tower Facilities at any Applicable Tower Site for the
construction, installation, use and operation of Carrier's Equipment at such
Applicable Tower Site and for the construction and installation of the Tower
Facilities.
"COMMENCEMENT DATE" shall mean the date for each SLA as defined in Attachment V.
"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 the Carrier who will assign the lease to
the 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 the Tower
Company (or the Carrier who will assign the lease to the 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, toxic or dangerous 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.
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"MPE" shall mean Maximum Permissible Exposure.
"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 1
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, fees of
engineers, surveyors, architects, attorneys, brokerage commissions and others
providing professional services.
"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, all cabling, conduit, wires and utilities running to and
from the Tower Facility and to and from Carrier's Equipment and the Easement.
"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.
"ISLA" shall mean a Site Lease Agreement between Tower Company and Carrier.
"SPECIFICATIONS" shall mean the specifications for the construction of the Tower
Facilities.
"TOWER COMPANY" shall mean American Tower, L.P., a Delaware limited partnership.
"TOWER FACILITY OR TOWER FACILITIES" shall mean the tower, foundations, and
related facilities including concrete foundations, footings and slabs and
fencing 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 non-exclusive right to develop,
construct and lease those sites in the Carrier Markets as defined above which
involve the construction of towers and related facilities ("Tower Sites") upon
the terms and conditions of this Master Lease. Tower Company acknowledges and
agrees that the right to develop, construct and
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lease the Tower Sites is not an exclusive right and that Carrier may grant
similar rights to other parties in other markets.
(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 written notice of 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
an option, lease, contract or other right to lease the property for the
Applicable Tower Site, Carrier shall notify Tower Company in writing of such
option, lease, contract or other right. Carrier shall immediately 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 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 prior to the date that Carrier intends to make or actually makes
an 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 each be referred to as a "Notice of Applicable Tower
Site"). The Notice of Applicable Tower Site shall also be accompanied by the
Carrier Specifications for the Applicable Tower Site that is the subject of 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 the Tower
Company the Notice of Applicable Tower Site except in accordance with 2.1
(b)(i)(C), provided however, the Carrier may elect in lieu of providing Tower
Company Notice of the Applicable Tower Site pursuant to 2.1(b)(i)(C) above to
provide the Tower Company Notice of the Applicable Tower Site pursuant to either
2.1(b)(i)(A) or 2.1(b)(i)(B) above If Carrier provides Tower Company Notice of
the Applicable Tower Site pursuant to 2.1(b)(i)(A) above, then Tower Company
shall assist Carrier in locating a suitable Site within the of the parameters of
the search ring set forth in the Search Ring Notice and shall be responsible for
obtaining for Tower Company's own account and in Tower Company's own name a
lease, contract, option or other right to lease property for the Applicable
Tower Site
(ii) ACCEPTANCE OR REJECTION OF APPLICABLE TOWER SITE. Tower
Company shall have a period of fifteen (15) business days (the "Application
Period") from the date of the Notice of Applicable Tower Site to accept (in the
event of acceptance, the "Notice of
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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 by Tower Company of the Applicable Tower Site (including, without
limitation, objectionable ground lease provisions, defects in existing, or
inability to obtain proper, zoning or environmental contamination). In the event
that Tower Company does not accept or reject the Applicable Tower Site within
such fifteen (15) 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 (hereinafter defined) 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.
(c) DUE DILIGENCE. During the (i) (A) Application Period; and (B)
in the event that the Tower Company provides the Carrier with a Notice of
Acceptance upon the applicable Tower Site, during the period between the
Application Period and the Commencement Date of the applicable SLA; and (C)
during the term of the applicable SLA, provided that Tower Company has assumed
the Ground Lease, if applicable, and entered into an SLA with Carrier: Carrier
shall make available to Tower Company such information as Tower Company may
reasonably require about the Applicable Tower Site which information shall
include but shall not be limited to (ii) (A) zoning permits and approvals,
variances, building permits and such other federal, state or local governmental
approvals which have been obtained or for which Carrier has made application;
(B) the construction, engineering and architectural drawings and related site
plan and surveys pertaining to the construction of the Tower Facilities on the
Property; (C) the geotechnical report for the Property commissioned by Carrier,
if any; (D) the title reports, commitments for title insurance, ownership and
encumbrance reports, title opinion letters, copies of instruments in the chain
of title or any other information which may have been produced regarding title
to the Property and the Easements; and (E) the environmental assessments
including phase I reports and any reports relating to 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, the
Easements or neighboring real property. Carrier shall cooperate with Tower
Company in making reasonable modifications to the foregoing information at the
request of Tower Company. If the Tower Company provides a Notice of Acceptance
for any such Applicable Tower Site, Tower Company shall reimburse Carrier for
the Pre-Development Costs associated with each accepted Applicable Tower Site in
accordance with the Schedule set forth in Attachment "V".
(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 written 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
Section 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, from and after the date of the Assignment, by the
Ground Lease, together with the Easements to the Property
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pursuant to the Assignment and the relationship of the Carrier and Tower Company
with regard to the Applicable Tower Site shall thereafter be governed by this
Agreement. 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 within ten (10) business days of
Carrier's delivery of the Notice of Acceptance. 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 within ten (10) business days of
Carrier's receipt of the Notice of Acceptance. Provided that the Ground Lease is
in the form of an option to lease and such option has not been exercised, Tower
Company shall record the Memorandum of Assignment within fifteen (15) business
days of the Notice of Acceptance, and in any event prior to the commencement of
construction of the Tower Facilities as commencement of construction is defined
in any mechanics or materialman's lien statute in the state where the Property
is located. In addition thereto, Tower Company and Carrier shall exercise their
best 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 to the Assignment as Exhibit "E".
Notwithstanding the foregoing provisions of this Section, the Assignment and
Memorandum of Assignment are contingent upon the execution of the SLA by the
Carrier and the execution of the SLA by the Carrier shall be a condition
precedent to the effectiveness of the Assignment. In the event that any Estoppel
Certificate obtained from the Ground Lessor for such Site indicates that a
default exists or may exist under the Ground Lease on the part of the lessee
thereunder, Tower Company shall have the option to terminate the Assignment and
Memorandum of Assignment within ten (10) business days of the receipt of the
notice of such alleged default.
(f) COMPLETION OF PRE-DEVELOPMENT WORK. In the event that Tower
Company accepts the Applicable Tower Site prior to the time that a building
permit has been issued for the Applicable Tower Site, then except to the extent
previously obtained by Carrier, 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, including
without limitation (i) obtaining zoning permits and approvals, variances,
building permits and such other federal, state or local governmental approvals
for the Applicable Tower Site; (ii) obtaining the construction, engineering and
architectural drawings and related site plan and surveys pertaining to the
construction of the Tower Facilities on 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"). Tower Company shall make available to and
deliver to Carrier copies of all of the Pre-Development Information obtained by
Tower Company prior to the
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execution of an SLA. Subject to the force majeure provisions of Section 5.5(e),
the Tower Company shall deliver to the Carrier all of the Pre-Development
Information and the Ground Lease for the Applicable Tower Site within the time
periods provided in Attachment "V".
(g) 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, Carrier shall have the right to approve, (such approval not to be
unreasonably withheld, delayed or conditioned,) any application, motion, appeal
or action ("Government Application") for such Government Approvals. Where
reasonably practicable and at Carrier's sole cost and expense, Carrier shall
have the right 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. Where reasonably practicable, Carrier shall have
the right to require Tower Company to hire or use, which shall be at Carrier's
sole cost and expense, any witnesses, attorneys, consultants, lobbyists, public
relations consultants, or parties which Carrier deems reasonably necessary to
obtain the Governmental Approval. So long as Tower Company has not entered into
a lease, license or similar contractual agreement with another wireless or
telecommunications provider for the occupancy of space upon the Tower
Facilities, Carrier shall have the right at any time to control, withdraw,
dismiss, terminate or otherwise cease any process, hearing or proceeding upon or
regarding a Government Application. In the event Government Approval is not
obtained for any Applicable Tower Site, Carrier shall reimburse Tower Company
for all fees and expenses incurred in connection with the Government
Applications and Pre-Development Costs. In the event that the 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 the Tower Company and the 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 Property, the Carrier shall
reimburse the Tower Company for all fees and expenses incurred in connection
with the Government Applications and Pre-Development Costs. In addition, Tower
Company may subsequently terminate, by written notice to Carrier, any
Assignment, Memorandum of Assignment and/or SLA on any Applicable Tower Site
previously entered into pursuant to 2.1 (h)(ii) if any Governmental Approvals
for such Applicable Tower Site cannot be obtained, in which event, Tower Company
and Carrier shall have no further obligation to each other under such SLA or
under this Master Lease in regards the Applicable Tower Site, provided however,
that Tower Company shall assign the Ground Lease (and any related documents
including without limitation any Pre-Development Information) to Carrier without
warranty or representation. In the event that the Carrier elects to proceed to
appeal or obtain any Governmental Approvals for such Applicable Tower Site,
Carrier may award such Applicable Tower Site to another company for the
development, construction and leasing of the Applicable Tower Site, Carrier may
develop, construct and lease the Applicable Tower Site itself or elect to obtain
another tower site or otherwise. In any such event Tower Company and Carrier
shall have no further obligation to each other under such SLA or under this
Master Lease in regards to the Applicable Tower Site.
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(h) SITE LEASE AGREEMENT. (i) In the event that a building permit
has been obtained for the Applicable Tower Site and all Pre-Development
Information has been completed and delivered to Carrier, Carrier shall execute
two original copies of a Site Lease Agreement ("SLA") in substantially the form
of the SLA attached hereto as Attachment III and deliver such SLA to Tower
Company for execution within ten (10) business days of the delivery of the
Pre-Development Information to the Carrier. Tower Company shall execute and
deliver a Memorandum of SLA in substantially the form of the Memorandum of SLA
attached hereto as Attachment "IV" contemporaneously with the execution and
delivery of the SLA.
(ii) In the event that the Notice of Acceptance has been
received prior to the obtaining of a building permit and the delivery of all
Pre-Development Information to Carrier, Carrier shall execute two original SLAs
in substantially the form of the SLA attached hereto as Attachment III and
deliver such SLA to Tower Company for execution within ten (10) business days of
the delivery of all Pre-Development Information to Carrier. Tower Company shall
execute and deliver a Memorandum of SLA in substantially the form of the
Memorandum of SLA attached hereto as Attachment "IV" contemporaneously with the
execution and delivery of the SLA.
(iii) Carrier may refuse to execute the SLA and reject same
on any Applicable Tower Site because of any deficiency in the Pre-Development
Information or any deficiencies which are disclosed in the Pre-Development
Information, (which Carrier did not obtain or prepare), including without
limitation (A) exceptions to the title of the Property or the Easements, (B)
deficiencies in the Plans and Specifications (C) deficiencies in the
geotechnical analysis or environmental assessments for the Property or any
deficiencies regarding the condition of the Property; or (D) deficiencies in any
requirements under the National Environmental Protection Act; (E) any deficiency
in the SLA; or (F) any deficiency in the Ground Lease or the due authorization
thereof. Notwithstanding the foregoing, the Carrier shall give the Tower Company
notice of any deficiency in the Pre-Development Information. Notice of any
deficiencies from Carrier to Tower Company shall state with specificity the
alleged deficiencies and the exact nature of the cure required by Carrier. Tower
Company shall have fifteen (15) business days from the date of such notice to
cure, correct, or otherwise modify such deficiency in the Pre-Development
Information. In the event that Tower Company does not cure such deficiency to
the reasonable satisfaction of Carrier and Carrier refuses to execute or rejects
an SLA, 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 Tower Company thereafter does not construct a tower on such
Applicable Tower Site, Carrier shall reimburse Tower Company for its
Pre-Development Costs incurred prior to Tower Company's actual knowledge of such
deficiency, but in any event no more than Sixteen Thousand and no/ 100s Dollars
($16,000.00). Notwithstanding the foregoing provisions, in the event that
Carrier and Tower Company dispute in good faith whether any such deficiency
exists or whether any cure specified by Carrier is reasonable under the
circumstances or any cure undertaken by Tower Company is adequate, and as a
result Carrier refuses to execute or rejects an SLA, in addition to the remedies
and recoveries provided above, Carrier shall submit and grant to Tower Company
any substitute or alternate tower site which Carrier intends to build, develop
and construct as a substitute for the Applicable Tower Site.
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(iv) Tower Company may refuse to execute the SLA and reject
same on any Applicable Tower Site because of any deficiency in the
Pre-Development Information or any deficiencies which are disclosed in the
Pre-Development Information, that was not prepared and available for review by
Tower Company prior to its giving of the Notice of Acceptance for such
Applicable Tower Site, including without limitation (A) exceptions to the title
of the Property or the Easements, (B) deficiencies in the Plans and
Specifications (C) deficiencies in the geotechnical analysis or environmental
assessments for the Property or any deficiencies regarding the condition of the
Property; or (D) deficiencies in any requirements under the National
Environmental Protection Act; (E) any deficiency in the SLA; or (F) any
deficiency in the Ground Lease or the due authorization thereof (unless the
Ground Lease was prepared by Tower Company) Notwithstanding the foregoing, Tower
Company shall give the Carrier notice of any such, which shall state with
specificity the alleged deficiencies.
(v) 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, and subject
to availability and receipt by Tower Company of a building permit and any other
required Governmental Approvals, Tower Company shall construct the Tower
Facilities in accordance with and in 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 be responsible for obtaining
all necessary permits and approval of the Plans and Specifications from all
applicable governmental agencies, unless previously obtained by Carrier.
3.2 APPROVAL OF PLANS AND SPECIFICATIONS. (a) In the event that Carrier
has obtained Plans and Specifications for the construction 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 Tower Company shall deliver detailed written objections to the
Plans and Specifications within five (5) business days of the receipt of the
Plans and Specification. If Tower Company modifies the Plans and Specifications
Tower Company shall prepare and deliver to Carrier for approval by Carrier three
copies of any modifications to the Plans and Specifications. Any modifications
to the Plans and Specifications for each Tower Facility shall be delivered to
Carrier within ten (10) business 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 five (5)
business 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 five (5) day period, Carrier shall be deemed to have
effectively approved the modified Plans and Specifications.
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(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 construction of the Tower Facility prepared, designed and
delivered to Carrier within fifteen (15) business days of the execution of the
Assignment, or in the event there is no Assignment, within fifteen (15) business
days of the execution of the Ground Lease with the Ground Lessor, for Carrier's
approval, which approval shall not be unreasonably withheld, delayed or
conditioned. 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) day
period, Carrier shall be deemed to have approved the Plans and Specifications.
(c) The grounds for any disapproval by Carrier of Plans and
Specifications or modifications thereof submitted by Tower Company shall be
limited to failure of the Plans and Specifications to conform to applicable
legal requirements or the to the Carrier Specifications.
(d) 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 the other party
approves such modification, such approval not to be unreasonably withheld,
delayed or conditioned.
3.3 COMMENCEMENT OF CONSTRUCTION. Tower Company shall commence
construction of the Tower Facility promptly, and in any event within ten (10)
days of the receipt of a building permit and shall complete the construction of
each individual Tower Facility within forty-five (45) business days after,
Carrier executes an SLA for the Site upon which the Tower Facility is to be
constructed. Tower Company shall have no obligation to commence construction of
the Tower Facilities unless and until an executed SLA has been executed by
Carrier for the applicable 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 the Tower Company, or other unavoidable casualties,
force majeure 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 a Tower Facility in a Carrier Market.
3.4 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, in its reasonable discretion and within ten (10)
business days of receipt of this information, object to the use of a specific
contractor on a Tower Facility. Failure of Carrier to object to any contractor
within such ten (10) business day period shall constitute approval of all such
contractors.
3.5 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,
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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 of good quality, and that such construction will be of
good quality in accordance with industry standards, free from faults and patent
defects.
(b) Tower Company shall supervise and direct the work on the Tower
Facilities (the "Work"), using Tower Company's best 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 not permit employment of unfit persons or persons not 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.
(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; 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 Carrier unless Tower Company has
reason to believe that there is an infringement of patent.
(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:
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(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.
3.6 NO LIENS. Tower Company shall keep the Tower Facilities free of all
involuntary liens and claims other than those arising by, through or under
Carrier, including without limitation, (a) liens and claims arising out of or
related to the performance of the construction, all liens and claims of any
contractor, subcontractor, laborer, mechanic or materialman for labor performed
or material furnished in connection with the performance of the construction;
(b) liens or claims arising from taxes or assessments, except for liens for
taxes or assessments which are not yet due and payable; or (c) liens or claims
which may impair Carrier's interest. Notwithstanding the foregoing, Tower
Company may encumber the Tower Facilities with a lien or mortgage as surety for
construction or permanent financing.
3.7 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 "VI"
("Notice of Completion"). Within fifteen (15) business days after the Notice of
Completion, Carrier shall deliver to Tower Company a Punch List. The Tower
Facilities shall be deemed accepted by Carrier if a Punch List is not received
by Tower Company within fifteen (15) days of the date of Notice of Completion.
In the event that Carrier does submit a Punch List to the Tower Company, the
Tower Company shall complete and correct all items on the Punch List within ten
(10) business days after delivery of the Punch List. The Carrier shall not be
deemed to have accepted the Tower Facilities as complete until completion of all
items on the Punch List.
3.8 IMPROVEMENTS BY CARRIER. Unless otherwise provided in this
Agreement or otherwise, 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 and for the installation of
Carrier's Equipment upon the Premises. In the event that the Tower Company
installs the Carrier Equipment upon the Tower Facilities, the Tower Company
shall perform such installation pursuant to the provisions of the Schedule
attached to Attachment "V". Subject to the provisions of Section 4.12, Carrier
shall submit plans and specifications for the proposed installation of Carrier's
Equipment to Tower Company for Tower Company's approval. 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 the Carrier's Equipment without first obtaining the prior written consent of
Tower Company which consent shall not be unreasonably withheld, delayed or
conditioned. Notwithstanding the foregoing, 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 the 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 material radio frequency interference with the equipment of
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other users then located upon the Tower Facility who have a written contractual
agreement with the Tower Company for the location of equipment upon the Tower
Facility.
3.9 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 3.8 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.
IV. LEASE OF THE PREMISES
4.1 PREMISES. Carrier may install, maintain, operate and remove
Carrier's Equipment on the Tower Facilities, only 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 "III". 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 the applicable 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 or altered equipment, which approval shall not be
unreasonably withheld, delayed or conditioned and any additional or substituted
equipment (i) does not increase the wind load or structural burden upon the
Tower Facilities, (ii) does not increase the space upon the Tower Facilities or
the ground space upon the Site, (iii) does not create a fly material technical
or radio frequency interference with any existing equipment located upon the
Tower Facilities at the time of the request for such modification or
substitution, (iv) and does not increase the effective isotropically radiated
power emitted from the antennae located upon the Carrier Premises in excess of
one thousand six hundred forty (1640) xxxxx. Carrier may substitute, add, alter,
modify and replace Carrier's Equipment described in the SLA upon the Tower
Facilities.
4.2 USE. Subject to the provisions of Section 3.8, Carrier may use the
Premises for (i) the transmission and reception of wireless communications
signals, (ii) the construction, alteration, maintenance, replacement, repair,
and upgrade of Carrier's Equipment, at Carrier's sole cost and expense, subject
to and in accordance with Sections 4.1, 4.12 and other applicable provisions of
this Master Lease, and (iii) activities incidental to any of the foregoing, and
for no other purposes. 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 the Tower Company, subject to the covenants,
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terms and conditions of this Master Lease including, without limitation,
covenants prohibiting interference with Carrier's Equipment found in Section
4.12 of this Master Lease.
4.3 INITIAL TERM OF MASTER LEASE. The initial term of this Master Lease
shall be for a period of seven (7) years from the date of this Master Lease. 'Me
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 seven (7) years commencing on the Commencement
Date and expiring on the seventh (7th) anniversary of the Commencement Date
("Initial Term"). Carrier and Tower Company shall execute a letter agreement in
substantially the form of Attachment VII, 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").
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 V.
4.6 QUIET ENJOYMENT. Subject to Carrier's payment and performance of
all of its duties and obligations under this Master Lease and any applicable
SLA, Tower Company covenants that Carrier shall have the quiet enjoyment of the
Premises throughout the term of the applicable SLA, without threat of hindrance,
ejection or molestation.
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. 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.
(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, which approval shall not be unreasonably withheld, delayed or
conditioned.
(c) In the event that the Ground Lease expires, terminates or is
not otherwise renewed, and subject to the terms and provisions of the Ground
Lease, Tower Company hereby
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grants to Carrier the right to purchase the Tower Facilities (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 option must be exercised within
six (6) months of the date of such expiration, termination or non-renewal.
(d) Tower Company agrees to deliver a non-disturbance and
attornment agreement with the landlord under the Ground Lease 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 to the Assignment as Exhibit "E" 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.
4.8 BASE RENT. As consideration for the use and occupancy of the
Premises under any SLA, Carrier shall pay, without setoff, abatement, deduction,
or demand, except as expressly provided in this Master Lease, to Tower Company
the base rent shown on Attachment V ("Base Rent" or "Rent"). The Base Rent shall
be due and payable in monthly installments, in advance, on the first day of each
month during the term (including Renewal Terms) of this Lease, commencing on the
Commencement Date. Carrier shall pay to Tower Company interest at the rate of
[CONFIDENTIAL TREATMENT REQUESTED] per annum or the highest rate allowed by law
(whichever is less) on all payments of Base Rent not paid when due from due date
thereof until paid.
4.9 CARRIER'S EQUIPMENT. Carrier's Equipment shall remain Carrier's
exclusive personal property throughout the term of this Agreement and upon
termination of the SLA. Carrier shall have the right to remove all the Carrier's
Equipment at Carrier's sole cost and expense on or before the expiration or
earlier termination of the SLA, provided that Carrier repairs 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 Property and the Tower Facility located upon the Property at
all times for the purpose of inspecting the same.
4.10 MECHANICS' LIENS. Carrier shall not permit any mechanics',
materialmen's, contractors' or subcontractors' liens arising from any
construction work, repair, restoration or removal or any other claims or demands
to be enforced against the Tower Facilities or the Property or any part thereof.
Tower Company shall have the right at any time to post and maintain upon the
Property such notices as may be necessary to protect Tower Company against
liability for all such liens and encumbrances. Tower Company shall assume no
liability for the payment of materials or labor which arise from the
installation of Carrier's improvements upon the Premises and no mechanics' or
materialmen's liens for Carrier's improvements shall attach to the interest of
Tower Company in the Tower Facilities. If any mechanics', materialmens',
contractors or subcontractors' liens are filed against the Property or the Tower
Facility due to work performed by Carrier, then Carrier shall remove such liens
by posting any bonds required by the applicable state law.
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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 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 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.
(c) Tower Company assumes no responsibility for the licensing,
operation and maintenance of the Carrier's Equipment.
4.12 UTILITIES. Carrier shall be solely responsible for the payment of,
and shall pay when due and payable, all utility charges including connection
charges and security deposits incurred in association with the Carrier's
Equipment. Carrier will be responsible for setting up their account for ongoing
power usage. The scope of the installation of the utilities shall be as defined
in Attachment V. Subject to Tower Company's prior written approval (which shall
not be unreasonably withheld, conditioned or delayed), Carrier may (i) install
or improve existing utilities servicing the Tower Facility, (ii) 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, or (iii) 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. Tower Company shall assist Carrier in
obtaining any utility services necessary to service the Carrier Equipment
including, without limitation, any meters, telephone lines or services to the
Premises.
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4.13 INTERFERENCE AND MAXIMUM PERMISSIBLE EXPOSURE.
(a) BY OTHER OCCUPANTS. Tower Company may enter into sublease or
license agreements with other persons or entities 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 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
interference with Carrier's Equipment, Tower Company will require such sublessee
or licensee to take all steps necessary to correct and eliminate the
interference. If such interference cannot be eliminated within twenty-four (24)
hours after receipt by Tower Company of notice from Carrier of the existence of
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
interference is corrected. If such interference is not rectified to the
reasonable satisfaction of Carrier within thirty (30) days after receipt by
Tower Company of such prior notice from Carrier of the existence of
interference, Tower Company shall cause such sublessee or licensee to remove
such sublessee's or licensee's antennas and equipment from the Tower Facilities.
(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 or otherwise use the Premises in a manner which will cause
interference with the operations of any other equipment which is then in
existence on the Tower and for which Tower Company has a written contractual
agreement with an independent bona fide third party. Carrier agrees that in the
event Carrier's Equipment causes interference with any existing equipment upon
the Tower Facilities which was placed upon the Tower Facilities prior to the
installation of Carrier's Equipment or of any modifications to Carrier's
Equipment upon the Tower Facilities, Carrier will take all steps necessary to
correct and eliminate the interference. If such interference cannot be
eliminated within twenty-four (24) hours after receipt by Carrier from Tower
Company of notice of the existence of 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
interference) until such 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 UTE 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 be subordinate
to any requirements of Carrier. If Tower Company or
17
Carrier require an engineering evaluation or other power density study be
performed to evaluate RF Emissions compliance with NIPE 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 MPE
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 the 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 the 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 the Agreement, the Tower Company shall give
Carrier notice of any party who shall occupy the Tower Facilities within sixty
(60) days of notice of such intended occupancy or the complete execution of an
agreement for such occupancy.
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.
4.15 INDEMNIFICATION AND RISK OF LOSS.
(a) Carrier shall bear the risk of loss for Carrier's Equipment
from theft or damages caused by (i) acts of God, and such acts or loss were not
contributed to or caused by Tower Company; or (ii) third parties whose interest
in the Premises does not arise from Tower Company and such acts or loss were not
contributed to or caused by the Tower Company; or (iii) third parties who are
not employees, officers, directors, contractors, subcontractors or agents
18
or representatives of Tower Company, and such acts or loss were not contributed
to or caused by Tower Company.
(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 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 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.
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4.17 INSURANCE. (a) Carrier shall procure and maintain during the term
of this Master Lease and any applicable SLA the following insurance: (i) "All
Risk" property insurance which insures Carrier's Equipment for their full
replacement cost; and (ii) comprehensive general liability insurance with a
commercial general liability endorsement having a minimum limit of liability of
$1,000,000, with a combined limit for bodily injury and/or property damage for
any one occurrence, and (iii) excess/umbrella coverage of $2,000,000 provided
that the imposition of these limits of insurance shall not limit the liability
of Carrier hereunder. The Tower Company, at its option, may require the Carrier
to increase the amounts of the foregoing insurance at the commencement of each
Renewal Term of each SLA by an amount equal to fifteen percent (15%) over the
amount of insurance provided herein in effect for the Previous Initial Term or
Renewal Term.
(b) The Tower Company shall procure and maintain during the terms
of the Master Lease and any applicable SLA, the following insurance: (i) "All
Risk" property insurance which insures the Tower Facilities and the Property for
their full replacement cost; and (ii) 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 (iii) excess umbrella coverage of $2,000,000; and (iv)
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 (v) a policy of rental value or business interruption
insurance insuring that rent under the Ground Lease shall continue to be paid
for a period of twelve (12) months; provided that the imposition of these limits
of insurance shall not limit the liability of the Tower Company hereunder. The
Carrier may, at its option, require the Tower Company to increase the amounts of
the foregoing insurance at the commencement of each Renewal Term of each SLA by
an amount equal to fifteen percent (15%) 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 the Carrier Equipment which is
identified to the 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 insurance.
(b) MUTUAL RELEASE. Tower Company and Carrier each release the
other and their respective representatives from any claims by them or any one
claiming through or under them by way of subrogation or otherwise for damage to
any person or to the Premises, 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
20
policy required to be carried by them pursuant to this Master Lease, 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.
4.19 DESTRUCTION OR CONDEMNATION. If the whole or any substantial part
of the Premises, or the Tower Facilities shall be taken by any public authority
under the power of eminent domain, or if the whole or any substantial part of
the Premises or the Tower Facilities shall be destroyed by fire or other
casualty, so as to interfere with Carrier's use and occupancy 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, (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 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. If Tower Company elects not to terminate the SLA,
then Tower Company shall rebuild and restore the Tower Facilities to
substantially the same condition as existed prior to the taking, destruction or
other casualty, and the Base Rent shall be reduced or abated in proportion to
the actual reduction or abatement of Carrier's use of the Premises until
completion of such restoration. Such building or restoration or construction
shall be completed within One Hundred and Twenty (120) days of the casualty or
taking. In addition thereto, and subject to the terms of the Ground Lease, the
Carrier shall have the option, at its expense to place a temporary
communications facility upon the Property during the restoration so long as the
placement of the temporary communications facility does not conflict or
interfere with the restoration or construction of the Tower Facilities, or in
the event of the termination of the SLA, for a period of One Hundred and Eighty
(180) days from the termination at a rate equal to onehalf of the amount of the
Rent provided for under the SLA.
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 by Carrier:
(a) any failure of Carrier to pay Base 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
(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 potential liability for damages, fines or
penalties or causes a breach of any other agreement to which Tower Company is a
party, Carrier shall immediately remedy such conditions or Tower Company shall
be entitled to remedy such condition at Carrier's reasonable cost and expense;
or
21
(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) clays 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 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, or in the event that no other Carrier is located upon the Tower
Facility, the Carrier shall not abandon the Tower Facilities for a period of one
(1) year after giving the Tower Company written notice of the proposed
abandonment or the date that an additional or replacement tenant is located upon
the Tower Facility, whichever event occurs first.
Tower Company understands and agrees that a default by Carrier
under the terms of any SLA shall constitute an event of default under that SLA
but shall not constitute a default under any other SLAs 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 by Section 4.20 for each applicable SKA, on a
site by site basis, which is subject to this Master Lease. The forbearance of
Tower Company to exercise any remedies available to Tower Company shall not
constitute a wavier 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 Section 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;
(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.
22
(b) Alternatively, Tower Company may expel Carrier from the
Premises without terminating the Applicable SLA, make such alterations and
repairs as 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 ~hall 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.
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
by Tower Company:
(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 condition or obligation to commence and complete
construction under the terms of this Agreement, including without limitation to
Section 3.3 and 3.8 of this Agreement and any schedule, attachment or agreement
related thereto, subject to the force majeure provisions of this Agreement,
which failure is not corrected or cured by Tower Company within five (5) 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 potential
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
23
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 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
Premises and such lien or encumbrance is not dismissed, released or removed
within thirty (30) days of such imposition or attempt; or
Tower Company understands and agrees that a default by Tower Company under the
terms of any SLA shall constitute an event of default under that SLA but shall
not constitute a breach or a default under any other SLA and that Carrier shall
have the right but not the obligation to those remedies afforded to Carrier at
law or in equity and under Section 4.24 for each applicable SLA, on a
Site-by-Site basis, which is subject to this Master Lease and in any SLA,
provided, however, that in the event that any default hereunder occurs and is
then existing under more than thirty percent (30%) of the SLAs in effect under
his Agreement at any single instance and such defaults are not cured within the
notice periods provided herein, the aggregate of such defaults shall constitute
a default under the terms of this Agreement and 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 Section 4.24 for the Master Lease and for all of the
Sites and the SLAs which are subject to the 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 Section 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, (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 Base Rent due under the
applicable SLA, then from the rent or Base Rent due under any other SLAs, and
then from any other amounts, due to Tower Company from the Carrier; (d) in the
case of a default under Section 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 the 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 the 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 claims or
damages, 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 the Tower Company for
24
any amounts due, such remedies to be cumulative and concurrent or sequential at
the election of the 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 SUBORDINATION. This Master Lease, at Tower Company's option, shall
be subordinate to any mortgage, deed of trust or other encumbrance now or
hereafter placed upon the Premises and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof, provided that the beneficiary or lender
under such mortgage, deed of trust or other encumbrance enters into a
satisfactory non-disturbance and attornment agreement with Carrier. Subject to
the provisions of Section 4.7 of this Master Lease, any SLA shall be subject to
the terms and provisions of the Ground Lease.
V. GENERAL PROVISIONS
5.1 NOTICES. All notices or demands by or from Tower Company to
Carrier, or Carrier to Tower Company, shall be in writing. Such notices or
demands shall be mailed to the other party at the following address:
Tower Company:
-------------------------------
-------------------------------
-------------------------------
Carrier: Tritel Communications, Inc.
000 X. Xxxxx Xxxxxx - Xxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
5.2 ASSIGNMENTS AND SUBLEASES.
(a) ASSIGNMENT BY CARRIER.
(i) ASSIGNMENT OF MASTER LEASE OR SLAS. Carrier shall not voluntarily,
involuntarily or by operation of law assign, sell, or otherwise transfer
Carrier's interest in this Master Lease, any SLA, the Property, the Premises,
the Tower Facilities or any portion thereof without Tower Company's prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed; provided, however that no consent of Tower Company shall be required
for any assignment or transfer to by Carrier of its interest in this Master
Lease, and/or each and every Carrier Equipment, SLA, Property, Premises, and
Tower Facility to any person or entity by way of merger, consolidation, or other
reorganization, or to any parent, subsidiary, or affiliate (being a person or
entity that directly or indirectly controls, is controlled by, or is under
25
common control with, Carrier), or to any person or entity acquiring all or
substantially all of Carrier's assets, or to any Person or entity acquiring and
continuing that portion of Carrier's business operations conducted pursuant to
this Master Lease, provided that any such assignee or transferee has sufficient
experience and the financial capability to perform the duties and obligations of
Carrier under this Master Lease. Upon any such assignment or transfer, Carrier
shall be released from and relieved of any further duties and obligations under
this Master Lease and each and every SLA, Property, Premises, and Tower Facility
provided that such transferee or assignee assumes all such duties and
obligations.
(ii) PLEDGE BY CARRIER. 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 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
provisions of this Agreement, including without limitation, the provisions in
Section 4.13 hereof, to sublease all or any portion of the Tower Facilities, the
Property or the Easements in Tower Company's reasonable discretion 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. The Tower Company shall give the Carrier notice of such
sublease, license or other agreement within sixty (60) days of the complete
execution of such lease, license or agreement.
(ii) ASSIGNMENT OF MASTER LEASE OR SLAS. Tower Company shall not
voluntarily, involuntarily or by operation of law assign, sell, or otherwise
transfer Tower Company's interest in this Master Lease, any SLA, the Property,
the Premises, the Tower Facilities or any portion thereof without Carrier's
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however that no consent of Carrier shall be
required for any assignment or transfer to by Tower Company of its interest in
this Master Lease, and each and every SLA, Property, Premises, and Tower
Facility to any person or
26
entity by way of merger, consolidation, or other reorganization, or to any
parent, subsidiary, or affiliate (being a person or entity that directly or
indirectly controls, is controlled by, or is under common control with, Tower
Company), or to any person or entity acquiring all or substantially all of Tower
Company's assets, or to any Person or entity acquiring and continuing that
portion of Tower Company's business operations conducted pursuant to this Master
Lease, provided that any such assignee or transferee has sufficient experience
and the financial capability to perform the duties and obligations of Tower
Company under this Master Lease. Upon any such assignment or transfer, Tower
Company shall be released from and relieved of any further duties and
obligations under this Master Lease and each and every SLA, Property, Premises,
and Tower Facility provide that such transferee or assignee assumes all such
duties and obligations..
(iii) ASSIGNMENT OF CONSTRUCTION OBLIGATIONS. Notwithstanding
anything else contained herein, Tower Company shall not voluntarily,
involuntarily or by operation of law assign or otherwise transfer its rights or
obligation (including, but not limited to the obligation to construct the Tower
Facilities and install the Carrier Equipment, if applicable) relating to any
Applicable Tower Site which is subject to this Agreement, prior to the
acceptance of a Site by Carrier pursuant to 3.7.
(iv) 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 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 as to 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., Notwithstanding
the foregoing, neither the lender nor Tower Company may assign, transfer, sell
or otherwise convey the Master Lease, any SLA, any Ground Lease, any Tower
Facility or any interest therein to any competitor of Carrier that is in the
business of providing telecommunications services similar to those provided by
Carrier; provided that Tower Company may lease or sublease space on the Tower
Facilities or the Property to any person or entity whatsoever.. 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 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.
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
27
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.
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 limited
partnership, duly organized, validly existing and in good standing under the
laws of Delaware and has the requisite partnership 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.
(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
28
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.
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.
(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. Except as otherwise provided in this Master
Lease, any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes therefor, governmental restrictions, actions or inactions 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
or a period equal to any such delay or stoppage.
(f) ESTOPPEL CERTIFICATE. (i) Carrier shall, upon the request of
Tower Company, but no more than four (4) times in any single year, upon not less
than ten (10) business 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
29
knowledge, and the date to which the rent and other charges are paid in advance,
if any, (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 is claimed and (iii) such other information as
may reasonably be requested.
(ii) Tower Company shall, upon the request of any lender of
Carrier, but no more than four (4) times in any single year, upon not less than
ten (10) business 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 and (iii)
such other information as may reasonably be requested.
(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 does not
disturb Carrier's possession of the Premises and honors the terms and conditions
of this Master Lease, and Carrier 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.
(j) 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, and 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 the 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, and 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
30
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.
(k) WARRANTIES AND REPRESENTATIONS. The warranties and
representations made in this Agreement shall be deemed to be made, reaffirmed,
ratified, rewarranted and re-represented upon the execution of each Assignment
and each SLA.
(l) COUNTERPARTS. This Master Lease may be executed in
counterparts with the same effect as if both parties hereto had signed the same
document. Both counterparts shall be construed together and shall constitute one
(1) Master Lease.
(m) INTERPRETATION. The parties hereby acknowledge that the
draftsmanship of this Agreement was a cooperative effort by both parties who
were represented by counsel and that this Master Lease 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.
(n) GOVERNING LAW. This Master Lease is to be governed by and
construed in accordance with the laws of the state in which the Premises is
situated.
(o) NO PARTNERSHIP. 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.
(p) 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.
(q) HOLDING OVER. If Carrier remains in possession of the Premises
at any Applicable Tower Site after expiration or earlier termination of the
applicable SLA for such Applicable Tower Site, then Carrier shall become a
tenant-at-sufferance at 125% of the Base Rent payable at the time of such
expiration or earlier termination, and there shall be no renewal or extension of
any such SLA by operation of law.
31
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:
AMERICAN TOWER, L.P.
BY: ATC GP, INC.
ITS: GENERAL PARTNER
BY:
--------------------------------------
TITLE:
--------------------------------------
DATE:
--------------------------------------
TRITEL COMMUNICATIONS, I
BY:
--------------------------------------
XXXXXXX X. XXXXXX
PRESIDENT
MAY 18, 1999
32
LIST OF ATTACHMENTS
ATTACHMENT DESCRIPTION
---------- -----------
I ASSIGNMENT
II MEMORANDUM OF ASSIGNMENT
III SLA
IV MEMORANDUM OF SLA
V REIMBURSEMENT OF PRE-DEVELOPMENT COSTS AND RENT
VI NOTICE OF COMPLETION
VII LETTER CONFIRMING COMMENCEMENT DATE
33
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 American Tower, L.P., a Delaware limited partnership ("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 desires the construction of 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 transfer, convey and assign to Tower
Company, without warranty or representation, and Tower Company shall and hereby
assumes and agrees to be bound (to the extent provided in paragraph 3 below) by
the Ground Lease, together with any easements for ingress, egress and utilities
("Easements") to the Property.
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 warrants 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
34
Company accepts from Carrier all of the right, title and interest of Carrier
under each and all of the following items (to the extent that 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 NEPA requirements and any other information
which may have been produced regarding the environmental condition of the
Property, Easements or neighboring real property; and
The items described in paragraphs 2(c) may hereinafter be collectively
referred to as "Site Acquisition Items"; (d) to the extent that any of the Site
Acquisition Items cannot legally be assigned, Carrier shall cooperate with Tower
Company and assist Tower Company wherever necessary with respect to any such
Site Acquisition Items to enable Tower Company to perform its obligations to
Carrier under the Master Lease as they relate to such Site Acquisition Items;
(e) shall use diligent 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 hereto as Exhibit "E" ("Estoppel Certificate"). Tower
Company shall use diligent efforts to obtain such Estoppel Certificate from each
lessor; and
(f) 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 prior to the date hereof, 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
35
hereby agrees to promptly and faithfully perform all of such duties and
obligations 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 on or after the date hereof, 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 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. AMERICAN TOWER, L.P.
BY: ATC GP, INC.
ITS: SOLE GENERAL PARTNER
By: By:
--------------------------------- ---------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx. Name:
------------------------------- -------------------------------
Title: Executive Vice-President Title:
------------------------------ ------------------------------
36
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
37
EXHIBIT "B"
LEGAL DESCRIPTION OF EASEMENTS
38
EXHIBIT "C"
COPY OF GROUND LEASE
39
EXHIBIT "D"
COPY OF EASEMENTS, IF ANY
40
EXHIBIT "E"
ESTOPPEL CERTIFICATE
THIS INSTRUMENT is given as of this ___ day of ____________________,
_____, by ______________________ ("Lessor") to American Tower, L.P., a Delaware
limited partnership, ("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 to Assignee its interest in the Prime
Lease.
C. Assignee seeks Lessor's acknowledgment, as of the date of execution
of this Instrument, of certain matters affecting the Prime Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, intending to be legally bound:
1. Lessor's Estoppel Certificate. Lessor hereby certifies, with the
understanding that Assignee is relying upon the statements made herein, the
following:
a. The Prime Lease 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. 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.
41
3. Release. Lessor, with the intention of binding itself and its
successors and assignees, expressly forever releases and discharges Lessee and
its successors and assigns from all claims, demands, actions, grievances,
controversies, contracts, promises, agreements, causes of action, in both law
and equity, judgments and executions, damages of whatever nature, past or
present, known and unknown, that it ever had, or now has, known or unknown, or
that anyone claiming through or under Lessor may now have or claim to have,
against Lessee which arise from the Prime Lease, but no further or otherwise.
4. Reliance. Lessor understands that Assignee and Lessee are relying on
the information contained in this Instrument, and agrees that Assignee and
Lessee may rely on this information, for purposes of determining whether to
consummate their transaction. Further, Assignee's and Lessee's subsidiaries,
affiliates, legal representatives and successor and assigns may rely on the
contents of this Instrument. A facsimile of this instrument delivered to
Assignee by telecopier shall be deemed an original for all purposes.
5. Notice; Non-Disturbance. Assignee intends to grant a sub-leasehold
interest to Lessee pursuant to a sublease dated the ______ day of _______,
______ (the "Sublease"). Lessor shall give notice to Lessee at the same time
that Lessor gives notice to Assignee of any default under the Prime Lease, and
Lessor shall accept a cure of any such default from Lessee on Assignee's behalf.
In such case, Lessee shall be entitled to reimbursement from Assignee of any
amount paid or obligation incurred in respect thereof. So long as the Lessee is
not in default under the Sublease beyond any applicable grace or cure period,
Lessee shall be permitted quiet enjoyment of the Premises under the Sublease
notwithstanding any termination or expiration of the Prime Lease and
notwithstanding any termination or expiration of the Prime Lease, Lessor agrees
at the request of the Lessee, to honor the terms and conditions of the Sublease
for the remainder of the term thereof and any renewal terms. Lessee agrees, at
the request of Lessor to attorn to the Lessor upon the terms and conditions of
the Sublease for the remainder of the term thereof (whether original or renewal)
and any renewal terms, and that the Sublease shall continue in full force and
effect as if the Lessor were the sublandlord under the Sublease notwithstanding
the expiration or termination of the Prime Lease.
6. Notices. Any Notices to be received by Assignee, Lessee or Lessor
under the Prime Lease, 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:
Tower Company:
-----------------------------------
-----------------------------------
-----------------------------------
42
With a copy to:
-----------------------------------
-----------------------------------
-----------------------------------
TO LESSEE: Tritel Communications, Inc.
000 X. Xxxxx Xxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
IN WITNESS WHEREOF, Lessor and Assignee have executed this Instrument
as of the date set forth above.
LESSOR:
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
TOWER COMPANY:
AMERICAN TOWER, L.P.
BY: ATC GP, INC.
TITLE: SOLE GENERAL PARTNER
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
43
ATTACHMENT "II"
THIS INSTRUMENT PREPARED BY: SITE NAME: INDEXING
INSTRUCTIONS ---------------------
SITE ID:
---------------------------------- -----------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Memorandum of Assignment of Prime Lease
This memorandum evidences that an assignment was made and entered into by
written Assignment of Prime Lease (the "Assignment") dated __________, 1999,
between AMERICAN TOWER, LP, a Delaware limited partnership 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
AMERICAN TOWER, L.P.
BY: ATC GP, INC.
TITLE: SOLE GENERAL PARTNER
By:
-----------------------------------
Its:
----------------------------------
Address:
------------------------------
--------------------------------------
44
CARRIER
TRITEL COMMUNICATIONS, INC.
By:
-----------------------------------
Its:
----------------------------------
Address:
------------------------------
--------------------------------------
45
[ACKNOWLEDGEMENTS]
46
EXHIBIT "A"
REAL PROPERTY DESCRIPTION
OF PROPERTY LEASED
47
ATTACHMENT III
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ("SLA") is executed this ___ day of
____________________, _______, by and between AMERICAN TOWER, L.P., a Delaware
limited partnership ("Tower Company ") and TRITEI 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 [CONFIDENTIAL TREATMENT REQUESTED] 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"), which is shown in the location shown n Exhibit
"B", including antennas and microwave dishes between the heights of
_____________ and ______________________ above ground level on the Tower
Facilities and which is 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 and the Rent
payable hereunder are defined in Attachment VI to the Master Lease. 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.
48
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 Premises 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 so long as Tower Company approves
any substituted, additional or altered equipment, which approval shall not be
unreasonably withheld, delayed or conditioned and any additional or substituted
equipment does not increase the wind load or structural burden upon the Tower
Facilities, does not increase the space upon the Tower Facilities or the ground
space upon the Site, and does not create any technical or radio frequency
interference. with any existing equipment located upon the Tower Facilities at
the time of the request for such modification or substitution ) and does not
increase the effective isotropically radiated power emitted from the antennae
located upon the Carrier Premises in excess of one thousand six hundred forty
(1640) xxxxx, Carrier may substitute, add, alter, modify and replace Carrier's
Equipment described in Exhibit "D" upon the Tower Facilities.
5. GROUND LEASE. A copy of the Ground Lease for this Site is attached
hereto as Exhibit "E".
6. MARKETABLE TITLE. The Tower Company holds good and marketable title
to its interest in the Site.
7. 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 paragraph 1 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
AMERICAN TOWER, L.P.
By: ATC GP, Inc.
Title: Sole General Partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
CARRIER:
TRITEL COMMUNICATIONS, INC.
By:
--------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
49
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
50
EXHIBIT "B"
SURVEY OR MAP OF THE SITE WITH LOCATION OF TOWER AND
GROUND SPACE SHOWN AND GROUND SPACE CROSS-HATCHED
51
EEXHIBIT "C"
LEGAL DESCRIPTION OF EASEMENTS
52
EXHIBIT "D"
EQUIPMENT LIST
53
EXHIBIT "E"
GROUND LEASE
54
ATTACHMENT IV
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 AMERICAN
TOWER, L.P., a Delaware limited partnership ("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. Tower Company has
obtained its interest in the Property pursuant to the terms of a option and
lease agreement or similar document between ______________________ as the
landlord and ______________________ as the tenant, a memorandum of which is of
record in __________________, in the office for recording real property records
in the ________________ County of the state of ____________________ and Tower
Company has obtained its interest in any easements pursuant to the terms of an
easement or similar document between _____________________ and
____________________, which easement is of record in ___________________ in the
office for recording real property records in the __________________ County of
the state of ___________________________.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the day and
year first above written. CARRIER:
Tritel Communications, Inc.
BY:
--------------------------------------
NAME: Xxxxx X. Xxxxxxxx, Xx.
------------------------------------
TITLE: Exec. Vice President/Chief
Operating Officer
-----------------------------------
55
ADDRESS: X.X. Xxx 0000
------------------------------------
Xxxxxxxxx, XX 00000-0000
------------------------------------
PHONE NUMBER: 000-000-0000
DATE:
---------------------------------------
56
TOWER
COMPANY:
-----------------------------------
AMERICAN TOWER, L.P.
By: ATC GP, Inc.
Its: Sole General Partner
BY:
-----------------------------------
NAME:
-----------------------------------
Title:
-----------------------------------
ADDRESS:
-----------------------------------
PHONE NUMBER:
-----------------------------------
TAX ID:
-----------------------------------
DATE:
-----------------------------------
57
EXHIBIT "A"
Property
Attached hereto Metes and Bound Description of the Real Property
58
EXHIBIT "B"
GROUND SPACE:
ATTACH HERETO THE SITE PLAN FOR THE SITE WITH THE GROUND SPACE CROSS HATCHED AND
THE TOWER IDENTIFIED.
59
ATTACHMENT V
SCHEDULES WITH MARKET SPECIFIC TERMS INCLUDING,
WITHOUT LIMITATION, REIMBURSEMENT OF PRE-DEVELOPMENT COSTS,
RENT, AND IF APPLICABLE, SCHEDULES FOR COMPLETION
OF TOWER FACILITIES AND DELIVERIES
No Schedules attached to this Attachment shall be valid unless it is
signed by both Duly Authorized Representatives of Tower Company and Carrier.
60
ATTACHMENT VI
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 3.9 of the
Master Lease, Carrier has a period of fifteen (15) days after the date of this
Notice of Completion to provide a Punch List of items to be completed by Tower
Company in order to render the Tower Facilities completed in accordance with the
Plans and Specifications in the opinion of Carrier.
Sincerely,
--------------------------------
61
ATTACHMENT VII
____________, 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:
------------------------------
Its:
-----------------------------
Acknowledged and Agreed to this ____ day of ________________, ____.
AMERICAN TOWER, L.P.
By: ATC GP, Inc.
Title: Sole General Partner
By:
------------------------------
Its:
-----------------------------
62
SCHEDULE 1 TO ATTACHMENT "VI"
OF MASTER LEASE BETWEEN
TOWER COMPANY AND CARRIER
MARKET SPECIFIC TERMS
1. CARRIER MARKET: Huntsville Market - This Schedule shall apply to the
Huntsville 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 (20) Tower Facilities in the
Huntsville Market more particularly described in Exhibit A attached hereto. In
the event that Carrier does not require the construction of 20 new Tower
Facilities in the Huntsville Market during the 1999 calendar year, all of the
new Tower Facilities which Carrier must construct and install in the Huntsville
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 Huntsville Market by Tower Company will be reduced by
the number of Applicable Tower Sites rejected, terminated or not otherwise
completed. In the event that the Carrier does not initially assign the Tower
Company twenty (20) Tower Facilities in the Huntsville Market during the 1999
calendar year, the Carrier shall assign to the Tower Company Tower Facilities in
the Huntsville Market or other Carrier Markets to the extent available in the
1999 calendar year and/or the first quarter of the 2000 calendar year so that
the cumulative number of sites in this Schedule shall not be diminished.
(b) In the event that the Tower Company rejects or terminates its
obligations or otherwise fails to complete or does not otherwise complete and
construct twenty percent (20%) or more of the Tower Facilities and installation
of the Carrier Equipment upon the Applicable Tower Sites in the Huntsville
Market, such actions shall constitute an Event of Default under the Master Lease
and in addition to any other remedies at equity or law or in the Master Lease
which Carrier may have, Carrier shall have the right to terminate the Master
Lease upon five (5) days written notice and to require the Tower Company to
assign or reassign any or all Ground Leases under the applicable Tower Sites in
the Huntsville 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 Huntsville Market to the Carrier or its assignee. In addition
thereto Carrier shall have the right to require the Tower Company to convey any
other property (real or personal, tangible or intangible) related to or
connected to the Applicable Tower Sites in the Huntsville Market, including
without limitation, the Tower Facilities, any pads, utilities, wiring, cabling,
connections, etc. to the Carrier or its assignee. The Carrier or its assignee
shall reimburse the Tower Company for the fair market value of the tower and the
related accessories, but no further or otherwise.
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3. PRE-DEVELOPMENT COSTS:
(a) For each Tower Site for which Carrier has obtained Pre-Development
Information. Tower Company shall reimburse Carrier up to the following amounts,
but no more than the following amounts for delivery of the Pre-Development
Information for the Applicable Tower Site from the Carrier to the Tower Company
within ten (10) days of the execution of the Assignment based upon the following
milestones:
MILESTONE 1: Delivery of Candidate Site Report
- Selection Form [CONFIDENTIAL TREATMENT REQUESTED]
o Identification of 3 leasable, zonal and constructable candidates
o Coordination of site visit
o Submission of reports including but not limited to Zoning Summary,
Permit Summary, site sketch
MILESTONE 2: Delivery of Lease Package $[CONFIDENTIAL TREATMENT REQUESTED]
o Submission of pre-approved, executed lease, including any access
easements, rights-of-way, etc. that may be required.
o Site Package, Site Survey
MILESTONE 3: Delivery of Title and Title Clearance Items [CONFIDENTIAL TREATMENT
REQUESTED]
o Submission of Title Report
o Submission of evidence curative work complete
MILESTONE 4: Delivery of Zoning Decision [CONFIDENTIAL TREATMENT REQUESTED]
o Submission of zoning application and verification of attendance
at required zoning meetings
o Submission of verification of zoning decision
MILESTONE 5: Building Permit Ready [CONFIDENTIAL TREATMENT REQUESTED]
o Coordination of NEPA, FCC, Environmental Assessments,
Geotechnicals as required
o Receipt of Building Permit and any other permits required for
construction
TOTAL PRICE [CONFIDENTIAL TREATMENT REQUESTED]
4. SCHEDULE OF COMPLETION:
(a) Subject to the force majeure provisions of Section 5.5(e) of the
Master Lease, Tower Company shall deliver to the Carrier all of the
Pre-Development Information and the Ground Lease for the Applicable Tower Sites
by the dates according to the following Schedule:
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June 1, 1999 Four (4) Tower Sites
July 1, 1999 Five (5) Tower Sites
August 1, 1999 Six (6) Tower Sites
August 15, 1999 Five (5) Tower Sites
(b) Tower Company shall deliver all Tower Sites fully completed with
Carrier's Equipment completely installed according to the following schedule,
excepting those Tower Sites delayed by Carrier actions or inaction's or those
Tower Sites delayed beyond Tower Company's control, including but not limited to
Governmental Approvals, moratoria, FAA or force majeure:
July 15, 1999 Four (4) Tower Sites
August 15, 1999 Five (5) Tower Sites
September 15, 1999 Six (6) Tower Sites
October 1, 1999 Five (5) Tower Sites
(c) Tower Company shall diligently exercise its best efforts to
construct and deliver all of the Tower Sites in the clusters which have been
developed by Carrier for the best system optimization. Carrier acknowledges and
agrees that Site Number 108005-RIB constitutes a search ring in an area where
the property is owned by the State of Alabama. Tower Company and Carrier
acknowledge and agree that the Tower Company's failure to obtain a lease
executed by the State of Alabama within the time periods provided in this
Agreement and this Schedule shall constitute an action beyond Tower Company's
control and an act prohibited by force majeure.
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. During the initial term of the Master Lease, the
rent shall be increased on each anniversary of the Commencement Date by
[CONFIDENTIAL TREATMENT REQUESTED] annually. 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 5.1 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 4.5 of the Master Lease, Rent during the first Renewal
Term of the SLA shall be the same amount as the Rent during the last year of the
Initial Term of the Master Lease. Rent shall be increased by [CONFIDENTIAL
TREATMENT REQUESTED] over the Rent accruing under the immediately prior term of
the SLA, commencing with the beginning. of the Second Renewal Term of the SLA.
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6. INSTALLATION OF CARRIER EQUIPMENT. Carrier and Tower Company acknowledge and
agree that Tower Company shall be obligated to and Tower Company shall provide
all materials, equipment and supplies for the installation and construction of
and shall install and construct all Tower Facilities and install the Carrier's
Equipment ("Carrier's Equipment Installation") except for the placement and
setting of the cabinet upon the Carrier Premises and for the purchase and
delivery of the equipment and items described in Section 6(c), which
installation shall include without limitation, the following:
(a) INSTALLATION. Tower Company shall perform all operations necessary and
required to build sites and install Personal Communications Services ("PCS")
cellular base transmission equipment, including without limitation:
(i) Tower Company shall furnish all labor, supervision, materials and
equipment (other than materials and equipment specified as furnished by others)
and perform all operations necessary and required to build sites and install
Personal Communications Services ("PCS") cellular base transmission equipment.
(ii) Tower Company shall install the Carrier Equipment upon the Tower
Facilities in accordance with their approved construction drawings,
specifications (except for those Tritel furnished specifications) and other
contract documents. Work includes but is not limited to the following:
(A) Preparation of raw land sites by clearing, grubbing and
grading. Construction of access roads as required. Preparation of
building, structures, or roofs in accordance with all legal
requirements and the Carrier Specifications for installing the Carrier
Equipment.
(B) Install electrical work required including raceways, cable
trays, boxes, underground ducts, utility structures, wires, cables,
wiring devices and related work necessary for a functional PCS site.
(C) Installation of framing for support of Carrier Equipment.
(D) Installation of equipment foundations.
(E) Seal penetrations through existing and new construction as
required by local codes and ordinances.
(F) Field quality control and inspections.
(G) Performance of sweep test and provide results in accordance
with project requirements contained in Specification No.
24085-002-3PS-EFW0-00001 and provide test results for Carrier review
and approval.
(H) Perform ground testing for each site and provide results in
accordance with project requirements contained in Specification No.
24085-000-3PS-EG00-G0001 and provide test results for Carrier review
and approval.
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(I) Receipt and storage of Carrier/third party materials, as
required.
(J) Provide concrete testing for all concrete work as required.
(K) Provide all inspections required by local and state
jurisdictions.
(L) Obtain and pay for all permits including special permits, as
required.
(M) Tower Company shall be responsible for obtaining FAA and FCC
permits, applications and approvals.
(N) Tower Company shall be responsible for any AM De-Tuning if
required.
(iii) The Carrier Equipment Installation shall conform to the
construction drawings and specifications, and applicable federal, state, county,
city, local laws, ordinances, rules and regulations of the authorities having
jurisdiction and the Carrier Specifications.
(iv) Tower Company shall furnish all labor, supervision, construction
equipment, transportation, licenses, taxes, safety supplies, consumable
supplies, all materials and each and every item of expense required to complete
the Carrier's Equipment Installation, except the items described in Section 6c
of this Schedule.
(v) Tower Company shall investigate, review, and if applicable, obtain
the proposed rights-of-way for ingress and egress from public and private roads
for clearances, restrictions, bridge load limit, bond requirements, permits (and
waivers of any of the foregoing if necessary) and other limitations that may
affect transportation and storage of Carrier's and Tower Company's equipment,
materials and manpower to or for the Applicable Tower Site.
(vi) Tower Company shall obtain and pay for all work permits required
by governmental authorities and other permits required for Tower Company's
construction pertains including but not limited to Tower Company's licenses,
construction bonds, transportation, equipment, labor and/or other general
permits.
(b) INSPECTION AND ACCEPTANCE
(i) Carrier Equipment Installation shall be subject to the inspection
and approval of Carrier and its agent, such approval not to be unreasonably
withheld, delayed or conditioned, and/or authorities or agencies having
jurisdiction.
(ii) Tower Company shall schedule the work upon the Carrier Equipment
Installation and provide notification to Carrier to comply with any and all
requirements for inspections including, but not limited to, sweep testing,
ground testing and final inspection.
(iii)Tower Company shall provide verification that antennae are aligned
as required by the design drawings and are within the tolerance.
(iv) Tower Company shall coordinate and schedule final inspection walk
down inspections with Tritel and/or its' agents.
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(c) CARRIER SUPPLIED EQUIPMENT AND MATERIAL
Equipment and Materials supplied by the Carrier will be delivered to Tower
Company on a just in time basis to meet scheduled construction start dates, to
the Applicable Tower Sites or Tower Company's facilities as chosen by Tower
Company. Tower Company shall receive, document, store, protect and transport all
materials as required. The receiving notices will be furnished to Carrier within
24 hours of delivery to Tower Company. The following equipment will be furnished
by Carrier, but no further or otherwise:
(i) Antenna Supports/Mounts
(ii) Antennas, including downtilt brackets
(iii) Coax Cable
(iv) Coax Connectors
(v) TMAS
(vi) Surge Suppressors
(vii) Ericsson equipment frames
Tower Company shall provide a xxxx of material for each Applicable Tower Site
five working days before the materials/equipment are needed for installation.
Tower Company is also responsible for notification of electrical installation
and termination of equipment with Carrier in order to coordinate the
installation of the cabinet and related equipment by Ericcson.
(d) DELIVERY. Tower Company will be required to provide the following
documentation to Carrier at the completion of the Carrier Equipment Installation
for each Applicable Tower Site:
Sweep test results
Grounding test results
Concrete test results
All other test results and reports
Pictures of the ground ring, ground rods before filling trenches with each
A completed and signed off Punch list from the final walkdown
(e) PLANNING AND SCHEDULING. Tower Company will conduct regular process review
meetings with Carrier and/or its agent and provide input into the project
database to report the construction and installation status.
(f) AS BUILT DRAWINGS. 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
Site and shall substantially conform to the specifications supplied by CARRIER
g) 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. Carrier will inspect the Carrier's
Equipment Installation within fifteen (15) business
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days of the receipt of Tower Company's notice that the Carrier Equipment
Installation is complete. Within ten (10) 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. 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. With respect to other punch list items, Tower Company shall
complete all unfinished or defective portions of the Carrier Premises within
fifteen (15) calendar days following issuance of the punch list.
h) TRADE AND CONSTRUCTION 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 Rents for such permits, licenses, inspections, certificates or approvals
to the appropriate government body or other entity.
i) LIENS. Tower Company shall keep the Tower Facilities and the Carrier
Equipment free of all involuntary liens and claims, including without
limitation, (other than liens and claims arising by, through or under Carrier)
liens and claims (a) arising out of or related to the performance of the
construction, all liens and claims of any contractor, subcontractor, laborer,
mechanic or materialman for labor performed or material furnished in connection
with the performance of the construction; (b) liens or claims arising from taxes
or assessments, except for personal property taxes which may be assessed against
Carrier's Equipment, and except for liens for taxes or assessments which are not
yet due and payable; or (c) liens or claims which may impair Carrier's interest.
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 venturers or
employees of Carrier. Tower Company shall supervise and direct the
Carrier Equipment Installation, using the care and shall
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.
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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
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, 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 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 Eighteen (18) 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. 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 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
Installation on the Carrier Equipment (the "Carrier Equipment
Work"), using Tower Company's best 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 employment of unfit persons or persons
not skilled in tasks assigned to them; 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
70
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 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. REIMBURSEMENT FOR INSTALLATION OF CARRIER EQUIPMENT. Carrier shall pay the
Tower Company [CONFIDENTIAL TREATMENT REQUESTED] ("Carrier Installation Rent")
for the installation of the Carrier Equipment as contemplated in Section 7 of
this Schedule.
9. NOTICE OF EXISTING APPLICABLE TOWER SITES. Notwithstanding the provisions
contained within the body of the Master Lease, Tower Company acknowledges that
Carrier has as of the date of this Agreement notified Tower Company of the
Applicable Tower Sites identified in Exhibit "A" to this Schedule (the "Existing
Applicable Tower Sites"). Within fifteen (15) business days from the date of
this Agreement, Tower Company will provide a Notice of Acceptance for or will
reject each such Applicable Tower Site. If Tower Company provides a Notice of
Acceptance for any such Applicable Tower Site, Tower Company shall reimburse
9. Carrier for the Pre-Development Costs associated with each accepted
Applicable Tower Site in accordance with this Schedule.
10. COMMENCEMENT DATE. The term "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 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 3.7 of the Master Lease; or (iii) in
the event that Carrier has not accepted the Tower Facilities pursuant to
Paragraph 3.7 of the Master Lease, 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; or (iv) October 18, 1999.
11. 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
71
the event that there is a conflict or contradiction between the terms and
conditions of the Master Lease and this Schedule, the terms and conditions of
this Schedule shall control.
IN WITNESS WHEREOF, Tower Company and Carrier have signed this Schedule as of
the date and year first above written.
CARRIER: TOWER COMPANY:
TRITEL COMMUNICATIONS, INC. AMERICAN TOWER, L.P., A
DELAWARE LIMITED
PARTNERSHIP
BY: ATC GP, INC.
TITLE: SOLE GENERAL PARTNER
By: By:
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxx
President Name:
-----------------------------
Title:
----------------------------
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SCHEDULE 2 TO ATTACHMENT "VI"
OF MASTER LEASE BETWEEN
TOWER COMPANY AND CARRIER
MARKET SPECIFIC TERMS
1. CARRIER MARKET: Xxxxxxxxxx Market - This Schedule shall apply to the
Xxxxxxxxxx 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 fourteen (14) Tower Facilities in the
Xxxxxxxxxx Market. In the event that Carrier does not require the construction
of 14 new Tower Facilities in the Xxxxxxxxxx Market during the 1999 calendar
year, all of the new Tower Facilities which Carrier must construct and install
in the Xxxxxxxxxx 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 Xxxxxxxxxx Market by Tower
Company will be reduced by the number of Applicable Tower Sites rejected,
terminated or not otherwise completed. In the event that the Carrier does not
initially assign the Tower Company fourteen (14) Tower Facilities in the
Xxxxxxxxxx Market during the 1999 calendar year, the Carrier shall assign to the
Tower Company Tower Facilities in the Xxxxxxxxxx Market or other Carrier Markets
to the extent available in the 1999 calendar year and/or the first quarter of
the 2000 calendar year so that the cumulative number of sites in this Schedule
shall not be diminished.
(b) In the event that the Tower Company rejects or terminates its
obligations or otherwise fails to complete or does not otherwise complete and
construct twenty percent (20%) or more of the Tower Facilities and installation
of the Carrier Equipment upon the Applicable Tower Sites in the Xxxxxxxxxx
Market, such actions shall constitute an Event of Default under the Master Lease
and in addition to any other remedies at equity or law or in the Master Lease
which Carrier may have, Carrier shall have the right to terminate the Master
Lease upon five (5) days written notice and to require the Tower Company to
assign or reassign any or all Ground Leases under the applicable Tower Sites in
the Xxxxxxxxxx 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 Xxxxxxxxxx Market to the Carrier or its assignee. In addition
thereto Carrier shall have the right to require the Tower Company to convey any
other property (real or personal, tangible or intangible) related to or
connected to the Applicable Tower Sites in the Xxxxxxxxxx Market, including
without limitation, the Tower Facilities, any pads, utilities, wiring, cabling,
connections, etc. to the Carrier or its assignee. The Carrier or its assignee
shall reimburse the Tower Company for the fair market value of the tower and the
related accessories, but no further or otherwise.
3. PRE-DEVELOPMENT COSTS:
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(a) For each Tower Site for which Carrier has obtained Pre-Development
Information. Tower Company shall reimburse Carrier up to the
following amounts, but no more than the following amounts for
delivery of the Pre-Development Information for the Applicable
Tower Site from the Carrier to the Tower Company within ten (10)
days of the execution of the Assignment based upon the following
milestones:
MILESTONE 1: Delivery of Candidate Site Report
- Selection Form [CONFIDENTIAL TREATMENT REQUESTED]
o Identification of 3 leasable, zonal and constructable candidates
o Coordination of site visit
o Submission of reports including but not limited to Zoning Summary,
Permit Summary, site sketch
MILESTONE 2: Delivery of Lease Package [CONFIDENTIAL TREATMENT REQUESTED]
o Submission of pre-approved, executed lease, including any access
easements, rights-of-way, etc. that may be required.
o Site Package, Site Survey
MILESTONE 3: Delivery of Title and Title Clearance Items
[CONFIDENTIAL TREATMENT REQUESTED]
o Submission of Title Report
o Submission of evidence curative work complete
MILESTONE 4: Delivery of Zoning Decision [CONFIDENTIAL TREATMENT REQUESTED]
o Submission of zoning application and verification of attendance
at required zoning meetings
o Submission of verification of zoning decision
MILESTONE 5: Building Permit Ready [CONFIDENTIAL TREATMENT REQUESTED]
o Coordination of NEPA, FCC, Environmental Assessments,
Geotechnicals as required
o Receipt of Building Permit and any other permits required for
construction
TOTAL PRICE [CONFIDENTIAL TREATMENT REQUESTED]
4. SCHEDULE OF COMPLETION:
(a) Tower Company and Carrier shall negotiate and reach a mutually
reasonable agreement which defines the schedule for delivery of the
Pre-Development Information and the Ground Leases and for the completion and
installation of the Tower Facilities in the Xxxxxxxxxx Market on or before May
31, 1999. In the event that the Carrier and the Tower Company cannot reach a
mutually reasonable agreement (which agreement shall not be unreasonably
withheld by the Carrier or the Tower Company) this Schedule 2 shall be null and
void and the Carrier and the Tower Company shall have no further obligation to
each other in the Xxxxxxxxxx Market or this Schedule.
74
(b) Tower Company shall diligently exercise its best efforts to
construct and deliver all of the Tower Sites in the clusters which have been
developed by Carrier for the best system optimization.
5. RENT:
(a) Initial Term. As consideration for the use and occupancy of the
Premises under any SLA during the Initial Term, 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. During the initial term of the Master Lease, the
Rent shall be increased on each anniversary of the Commencement Date by
[CONFIDENTIAL TREATMENT REQUESTED] annually. 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 5.1 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 4.5 of the Master Lease, Rent during the first Renewal
Term of the SLA shall be the same amount as the Rent during the last year of the
Initial Term of the Master Lease. Rent shall be increased by [CONFIDENTIAL
TREATMENT REQUESTED] over the Rent accruing under the immediately prior term of
the SLA, commencing with the beginning of the Second Renewal Term of the SLA.
6. INSTALLATION OF CARRIER EQUIPMENT. Carrier and Tower Company acknowledge and
agree that Tower Company shall be obligated to and Tower Company shall provide
all materials, equipment and supplies for the installation and construction of
and shall install and construct all Tower Facilities and install the Carrier's
Equipment ("Carrier's Equipment Installation") except for the placement and
setting of the cabinet upon the Carrier Premises and for the purchase and
delivery of the equipment and items described in Section 6(c), which
installation shall include without limitation, the following:
(a) INSTALLATION. Tower Company shall perform all operations necessary and
required to build sites and install Personal Communications Services ("PCS")
cellular base transmission equipment, including without limitation:
(i) Tower Company shall famish all labor, supervision, materials and
equipment (other than materials and equipment specified as famished by others)
and perform all operations necessary and required to build sites and install
Personal Communications Services ("PCS") cellular base transmission equipment.
(ii) Tower Company shall install the Carrier Equipment upon the Tower
Facilities in accordance with their approved construction drawings,
specifications (except for those Tritel famished specifications) and other
contract documents. Work includes but is not limited to the following:
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(A) Preparation of raw land sites by clearing, grubbing and
grading. Construction of access roads as required. Preparation of
building, structures, or roofs in accordance with all legal
requirements and the Carrier Specifications for installing the Carrier
Equipment.
(B) Install electrical work required including raceways, cable
trays, boxes, underground ducts, utility structures, wires, cables,
wiring devices and related work necessary for a functional PCS site.
(C) Installation of framing for support of Carrier Equipment.
(D) Installation of equipment foundations.
(E) Seal penetrations through existing and new construction as
required by local codes and ordinances.
(F) Field quality control and inspections.
(G) Performance of sweep test and provide results in accordance
with project requirements contained in Specification No.
24085-002-3PS-EFW0-00001 and provide test results for Carrier review
and approval.
(H) Perform ground testing for each site and provide results in
accordance with project requirements contained in Specification No.
24085-000-3PS-EG00-G000 1 and provide test results for Carrier review
and approval.
(I) Receipt and storage of Carrier/third party materials, as
required.
(J) Provide concrete testing for all concrete work as required.
(K) Provide all inspections required by local and state
jurisdictions.
(L) Obtain and pay for all permits including special permits, as
required.
(M) Tower Company shall be responsible for obtaining FAA and FCC
permits, applications and approvals.
(N) Tower Company shall be responsible for any AM De-Tuning if
required.
(iii) The Carrier Equipment Installation shall conform to the
construction drawings and specifications, and applicable federal, state, county,
city, local laws, ordinances, rules and regulations of the authorities having
jurisdiction and the Carrier Specifications.
(iv) Tower Company shall furnish all labor, supervision, construction
equipment, transportation, licenses, taxes, safety supplies, consumable
supplies, all materials and each and every item of expense required to complete
the Carrier's Equipment Installation, except the items described in Section 6c
of this Schedule.
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(v) Tower Company shall investigate, review, and if applicable, obtain
the proposed rights-of-way for ingress and egress from public and private roads
for clearances, restrictions, bridge load limit, bond requirements, permits (and
waivers of any of the foregoing if necessary) and other limitations that may
affect transportation and storage of Carrier's and Tower Company's equipment,
materials and manpower to or for the Applicable Tower Site.
(vi) Tower Company shall obtain and pay for all work permits required
by governmental authorities and other permits required for Tower Company's
construction pertains including but not limited to Tower Company's licenses,
construction bonds, transportation, equipment, labor and/or other general
permits.
(b) INSPECTION AND ACCEPTANCE
(i) Carrier Equipment Installation shall be subject to the inspection
and approval of Carrier and its agent, such approval not to be unreasonably
withheld, delayed or conditioned, and/or authorities or agencies having
jurisdiction.
(ii) Tower Company shall schedule the work upon the Carrier Equipment
Installation and provide notification to Carrier to comply with any and all
requirements for inspections including, but not limited to, sweep testing,
ground testing and final inspection.
(iii) Tower Company shall provide verification that antennae are
aligned as required by the design drawings and are within the tolerance.
(iv) Tower Company shall coordinate and schedule final inspection walk
down inspections with Tritel and/or its' agents.
(c) CARRIER SUPPLIED EQUIPMENT AND MATERIAL
Equipment and Materials supplied by the Carrier will be delivered to Tower
Company on a just in time basis to meet scheduled construction start dates, to
the Applicable Tower Sites or Tower Company's facilities as chosen by Tower
Company. Tower Company shall receive, document, store, protect and transport all
materials as required. The receiving notices will be furnished to Carrier within
24 hours of delivery to Tower Company. The following equipment will be furnished
by Carrier, but no further or otherwise:
(i) Antenna Supports/Mounts
(ii) Antennas, including downtilt brackets
(iii) Coax Cable
(iv) Coax Connectors
(v) TMAS
(vi) Surge Suppressors
(vii) Ericsson equipment frames
Tower Company shall provide a xxxx of material for each Applicable Tower Site
five working days before the materials/equipment are needed for installation.
77
Tower Company is also responsible for notification of electrical installation
and termination of equipment with Carrier in order to coordinate the
installation of the cabinet and related equipment by Ericcson.
(d) DELIVERY. Tower Company will be required to provide the following
documentation to Carteret the completion of the Carrier Equipment Installation
for each Applicable Tower Site:
Sweep test results
Grounding test results
Concrete test results
All other test results and reports
Pictures of the ground ring, ground rods before filling trenches with each
A completed and signed off Punch list from the final walkdown
(e) PLANNING AND SCHEDULING. Tower Company will conduct regular process review
meetings with Carrier and/or its agent and provide input into the project
database to report the construction and installation status.
(f) AS BUILT DRAWINGS. 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
Site and shall substantially conform to the specifications supplied by CARRIER
g) 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. Carrier will inspect the Carrier's
Equipment Installation within fifteen (15) business days of the receipt of Tower
Company's notice that the Carrier Equipment Installation is complete. Within ten
(10) 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.
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.
With respect to other punch list items, Tower Company shall complete all
unfinished or defective portions of the Carrier Premises within fifteen (15)
calendar days following issuance of the punch list.
h) TRADE AND CONSTRUCTION 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 Rents for such permits, licenses, inspections, certificates or approvals
to the appropriate government body or other entity.
i) LIENS. Tower Company shall keep the Tower Facilities and the Carrier
Equipment free of all involuntary liens and claims, including without
limitation, (other than liens and claims arising
78
by, through or under Carrier) liens and claims (a) arising out of or related to
the performance of the construction, all liens and claims of any contractor,
subcontractor, laborer, mechanic or materialman for labor performed or material
furnished in connection with the performance of the construction; (b) liens or
claims arising from taxes or assessments, except for personal property taxes
which may be assessed against Carrier's Equipment, and except for liens for
taxes or assessments which are not yet due and payable; or (c) liens or claims
which may impair Carrier's interest.
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 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
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, 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 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 Eighteen (18) 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
79
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. 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 reasonable
contractors 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
Installation on the Carrier Equipment (the "Carrier Equipment
Work"), using Tower Company's best 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 employment of unfit persons or persons
not skilled in tasks assigned to them; 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 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
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(3) other property at the Applicable Tower Site or adjacent
thereto.
8. REIMBURSEMENT FOR INSTALLATION OF CARRIER EQUIPMENT. Carrier shall pay the
Tower Company [CONFIDENTIAL TREATMENT REQUESTED] ("Carrier Installation Rent")
for the installation of the Carrier Equipment as contemplated in Section 7 of
this Schedule.
9. COMMENCEMENT DATE. The term "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 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 3.7 of the Master Lease; or (iii) in
the event that Carrier has not accepted the Tower Facilities pursuant to
Paragraph 3.7 of the Master Lease, 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; or (iv) October 18, 1999.
10. 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.
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. AMERICAN TOWER, L.P., A
DELAWARE LIMITED
PARTNERSHIP
BY: ATC GP, INC.
TITLE: SOLE GENERAL PARTNER
By: By:
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxx
President Name:
-----------------------------
Title:
----------------------------
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SCHEDULE 3 TO ATTACHMENT "VI"
OF MASTER LEASE BETWEEN
TOWER COMPANY AND CARRIER
MARKET SPECIFIC TERMS
1. CARRIER MARKET: Birmingham Market - This Schedule shall apply to the
Birmingham Market only.
2. NUMBER OF SITES: -
(a) Carrier shall and hereby grants to Tower Company the right to
develop, construct and lease twenty two (22) Tower Facilities in the Birmingham
Market more particularly described in Exhibit A attached hereto. The granting of
the twenty two (22) sites mentioned above will count towards the fulfillment of
Carrier's obligation to award sites as stated in Schedule 1 and Schedule 2 To
Attachment "VI" of this agreement. It is understood and agreed by Carrier and
Tower Company from this point forward, that any rights to develop, construct and
lease any future sites for Carrier in any market, will be awarded on merit only.
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 Birmingham Market (or other Markets if
applicable) by Tower Company will be reduced by the number of Applicable Tower
Sites rejected, terminated or not otherwise completed.
(b) In the event that the Tower Company rejects or terminates its
obligations or otherwise fails to complete or does not otherwise complete and
construct twenty percent (20%) or more of the Tower Facilities and installation
of the Carrier Equipment upon the Applicable Tower Sites in the Birmingham
Market, such actions shall constitute an Event of Default under the Master Lease
and in addition to any other remedies at equity or law or in the Master Lease
which Carrier may have, Carrier shall have the right to terminate the Master
Lease upon five (5) days written notice and to require the Tower Company to
assign or reassign any or all Ground Leases under the applicable Tower Sites in
the Birmingham 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 Huntsville Market to the Carrier or its assignee. In addition
thereto Carrier shall have the right to require the Tower Company to convey any
other property (real or personal, tangible or intangible) related to or
connected to the Applicable Tower Sites in the Birmingham Market, including
without limitation, the Tower Facilities, any pads, utilities, wiring, cabling,
connections, etc. to the Carrier or its assignee. The Carrier or its assignee
shall reimburse the Tower Company for the fair market value of the tower and the
related accessories, but no further or otherwise.
3. PRE-DEVELOPMENT COSTS:
(a) For each Tower Site for which Carrier has obtained Pre-Development
Information. Tower Company shall reimburse Carrier up to the
following amounts, but no more than the following amounts for
delivery of the Pre-Development Information for the
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Applicable Tower Site from the Carrier to the Tower Company within
ten (10) days of the execution of the Assignment based upon the
following milestones:
MILESTONE 1: Delivery of Candidate Site Report
- Selection Form [CONFIDENTIAL TREATMENT REQUESTED]
o Identification of 3 leasable, zonal and constructable candidates
o Coordination of site visit
o Submission of reports including but not limited to Zoning Summary,
Permit Summary, site sketch
MILESTONE 2: Delivery of Lease Package [CONFIDENTIAL TREATMENT REQUESTED]
o Submission of pre-approved, executed lease, including any access
easements, rights-of-way, etc. that may be required.
o Site Package, Site Survey
MILESTONE 3: Delivery of Title and Title Clearance Items
[CONFIDENTIAL TREATMENT REQUESTED]
o Submission of Title Report
o Submission of evidence curative work complete
MILESTONE 4: Delivery of Zoning Decision [CONFIDENTIAL TREATMENT REQUESTED]
o Submission of zoning application and verification of attendance
at required zoning meetings
o Submission of verification of zoning decision
MILESTONE 5: Building Permit Ready [CONFIDENTIAL TREATMENT REQUESTED]
o Coordination of NEPA, FCC, Environmental Assessments,
Geotechnicals as required
o Receipt of Building Permit and any other permits required for
construction
TOTAL PRICE [CONFIDENTIAL TREATMENT REQUESTED]
4. SCHEDULE OF COMPLETION:
(a) Subject to the force majeure provisions of Section 5.5(e) of the
Master Lease, Tower Company shall deliver to the Carrier all of the
Pre-Development Information and the Ground Lease for the Applicable Tower Sites
by the dates according to the following Schedule:
This portion of said Schedule shall be completed no later than
July 31, 1999.
(b) Tower Company shall deliver all Tower Sites fully completed with
Carrier's Equipment completely installed according to the following schedule,
excepting those Tower Sites delayed by Carrier actions or inaction's or those
Tower Sites delayed beyond Tower
83
Company's control, including but not limited to Governmental Approvals,
moratoria, FAA or force majeure:
This portion of said Schedule shall be completed no later than
July 31, 1999
(c) Tower Company shall diligently exercise its best efforts to
construct and deliver all of the Tower Sites in the clusters which have been
developed by Carrier for the best system optimization.
5. RENT:
(a) Initial Term. As consideration for the use and occupancy of the
Premises under any SLA during the Initial Term, 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. During the initial term of the Master Lease, the
rent shall be increased on each anniversary of the Commencement Date by
[CONFIDENTIAL TREATMENT REQUESTED] annually. 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 5.1 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 4.5 of the Master Lease, Rent during the first Renewal
Term of the SLA shall be the same amount as the Rent during the last year of the
Initial Term of the Master Lease. Rent shall be increased by [CONFIDENTIAL
TREATMENT REQUESTED] over the Rent accruing under the immediately prior term of
the SLA, commencing with the beginning of the Second Renewal Term of the SLA.
6. INSTALLATION OF CARRIER EQUIPMENT. Carrier and Tower Company acknowledge and
agree that Tower Company shall be obligated to and Tower Company shall provide
all materials, equipment and supplies for the installation and construction of
and shall install and construct all Tower Facilities and install the Carrier's
Equipment ("Carrier's Equipment Installation") except for the placement and
setting of the cabinet upon the Carrier Premises and for the purchase and
delivery of the equipment and items described in Section 6(c), which
installation shall include without limitation, the following:
(a) INSTALLATION. Tower Company shall perform all operations necessary and
required to build sites and install Personal Communications Services ("PCS")
cellular base transmission equipment, including without limitation:
84
(i) Tower Company shall furnish all labor, supervision, materials and
equipment (other than materials and equipment specified as furnished by others)
and perform all operations necessary and required to build sites and install
Personal Communications Services ("PCS") cellular base transmission equipment.
(ii) Tower Company shall install the Carrier Equipment upon the Tower
Facilities in accordance with their approved construction drawings,
specifications (except for those Tritel furnished specifications) and other
contract documents. Work includes but is not limited to the following:
(A) Preparation of raw land sites by clearing, grubbing and
grading. Construction of access roads as required. Preparation of
building, structures, or roofs in accordance with all legal
requirements and the Carrier Specifications for installing the Carrier
Equipment.
(B) Install electrical work required including raceways, cable
trays, boxes, underground ducts, utility structures, wires, cables,
wiring devices and related work necessary for a functional PCS site.
(C) Installation of financing for support of Carrier Equipment.
(D) Installation of equipment foundations.
(E) Seal penetrations through existing and new construction as
required by local codes and ordinances.
(F) Field quality control and inspections.
(G) Performance of sweep test and provide results in accordance
with project requirements contained in Specification No.
24085-002-3PS-EFW0-00001 and provide test results for Carrier review
and approval.
(H) Perform ground testing for each site and provide results in
accordance with project requirements contained in Specification No.
24085-000-3PS-EG00-G000 1 and provide test results for Carrier review
and approval.
(I) Receipt and storage of Carrier/third party materials, as
required.
(J) Provide concrete testing for all concrete work as required.
(K) Provide all inspections required by local and state
jurisdictions.
(L) Obtain and pay for all permits including special permits, as
required.
(M) Tower Company shall be responsible for obtaining FAA and FCC
permits, applications and approvals.
(N) Tower Company shall be responsible for any AM De-Tuning if
required.
85
(iii) The Carrier Equipment Installation shall conform to the
construction drawings and specifications, and applicable federal, state, county,
city, local laws, ordinances, rules and regulations of the authorities having
jurisdiction and the Carrier Specifications.
(iv) Tower Company shall furnish all labor, supervision, construction
equipment, transportation, licenses, taxes, safety supplies, consumable
supplies, all materials and each and every item of expense required to complete
the Carrier's Equipment Installation, except the items described in Section 6c
of this Schedule.
(v) Tower Company shall investigate, review, and if applicable, obtain
the proposed rights-of-way for ingress and egress from public and private roads
for clearances, restrictions, bridge load limit, bond requirements, permits (and
waivers of any of the foregoing if necessary) and other limitations that may
affect transportation and storage of Carrier's and Tower Company's equipment,
materials and manpower to or for the Applicable Tower Site.
(vi) Tower Company shall obtain and pay for all work permits required
by governmental authorities and other permits required for Tower Company's
construction pertains including but not limited to Tower Company's licenses,
construction bonds, transportation, equipment, labor and/or other general
permits.
(b) INSPECTION AND ACCEPTANCE
(i) Carrier Equipment Installation shall be subject to the inspection
and approval of Carrier and its agent, such approval not to be unreasonably
withheld, delayed or conditioned, and/or authorities or agencies having
jurisdiction.
(ii) Tower Company shall schedule the work upon the Carrier Equipment
Installation and provide notification to Carrier to comply with any and all
requirements for inspections including, but not limited to, sweep testing,
ground testing and final inspection.
(iii) Tower Company shall provide verification that antennae are
aligned as required by the design drawings and are within the tolerance.
(iv) Tower Company shall coordinate and schedule final inspection walk
down inspections with Tritel and/or its' agents.
(c) CARRIER SUPPLIED EQUIPMENT AND MATERIAL
Equipment and Materials supplied by the Carrier will be delivered to Tower
Company on a just in time basis to meet scheduled construction start dates, to
the Applicable Tower Sites or Tower Company's facilities as chosen by Tower
Company. Tower Company shall receive, document, store, protect and transport all
materials as required. The receiving notices will be furnished to Carrier within
24 hours of delivery to Tower Company. The following equipment will be furnished
by Carrier, but no further or otherwise:
(i) Antenna Supports/Mounts
(ii) Antennas, including downtilt brackets
86
(iii) Coax Cable
(iv) Coax Connectors
(v) TMAS
(vi) Surge Suppressors
(vii) Ericsson equipment frames
Tower Company shall provide a xxxx of material for each Applicable Tower Site
five working days before the materials/equipment are needed for installation.
Tower Company is also responsible for notification of electrical installation
and termination of equipment with Carrier in order to coordinate the
installation of the cabinet and related equipment by Ericcson.
(d) DELIVERY. Tower Company will be required to provide the following
documentation to Carrier at the completion of the Carrier Equipment Installation
for each Applicable Tower Site:
Sweep test results
Grounding test results
Concrete test results
All other test results and reports
Pictures of the ground ring, ground rods before filling trenches with each
A completed and signed off Punch list from the final walkdown
(e) PLANNING AND SCHEDULING. - Tower Company will conduct regular process review
meetings with Carrier and/or its agent and provide input into the project
database to report the construction and installation status.
(f) AS BUILT DRAWINGS. 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 Site and shall substantially conform to the specifications supplied
by CARRIER
g) 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. Carrier will inspect the Carrier's
Equipment Installation within fifteen (15) business days of the receipt of Tower
Company's notice that the Carrier Equipment Installation is complete. Within ten
(10) 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.
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.
With respect to other punch list items, Tower Company shall complete all
unfinished or defective portions of the Carrier Premises within fifteen (15)
calendar days following issuance of the punch list.
87
h) TRADE AND CONSTRUCTION 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 Rents for such permits, licenses, inspections, certificates or approvals
to the appropriate government body or other entity.
i) LIENS. Tower Company shall keep the Tower Facilities and the Carrier
Equipment free of all involuntary liens and claims, including without
limitation, (other than liens and claims arising by, through or under Carrier)
liens and claims (a) arising out of or related to the performance of the
construction, all liens and claims of any contractor, subcontractor, laborer,
mechanic or materialman for labor performed or material furnished in connection
with the performance of the construction; (b) liens or claims arising from taxes
or assessments, except for personal property taxes which may be assessed against
Carrier's Equipment, and except for liens for taxes or assessments which are not
yet due and payable; or (c) liens or claims which may impair Carrier's interest.
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 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
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, shall be safe,
88
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 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 Eighteen (18) 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. 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 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
Installation on the Carrier Equipment (the "Carrier Equipment
Work"), using Tower Company's best 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 employment of unfit persons or persons
not skilled in tasks assigned to them; 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 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
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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. REIMBURSEMENT FOR INSTALLATION OF CARRIER EQUIPMENT. Carrier shall pay the
Tower Company Thirty Thousand and no/100s Dollars ($30,000.00) ("Carrier
Installation Rent") for the installation of the Carrier Equipment as
contemplated in Section 7 of this Schedule.
9. NOTICE OF EXISTING APPLICABLE TOWER SITES. Notwithstanding the provisions
contained within the body of the Master Lease, Tower Company acknowledges that
Carrier has as of the date of this Agreement notified Tower Company of the
Applicable Tower Sites identified in Exhibit "A" to this Schedule (the "Existing
Applicable Tower Sites"). Within fifteen (15) business days from the date of
this Agreement, Tower Company will provide a Notice of Acceptance for or will
reject each such Applicable Tower Site. If Tower Company provides a Notice of
Acceptance for any such Applicable Tower Site, Tower Company shall reimburse
Carrier for the Pre-Development Costs associated with each accepted Applicable
Tower Site in accordance with this Schedule.
10. COMMENCEMENT DATE. The term "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 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 3.7 of the Master Lease; or (iii) in
the event that Carrier has not accepted the Tower Facilities pursuant to
Paragraph 3.7 of the Master Lease, 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; or (iv) March 1, 1999.
11. 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.
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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. AMERICAN TOWER, L.P., A
DELAWARE LIMITED
PARTNERSHIP
BY: ATC GP, INC.
TITLE: SOLE GENERAL PARTNER
By: By:
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxx
President Name:
-----------------------------
Title:
----------------------------
Date: Date:
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