MASTER SITE AGREEMENT
THIS MASTER SITE AGREEMENT (hereinafter referred to as this "MSA"), is
made as of the 10th day of March, 1999 (the "MSA Commencement Date"), by and
between BELLSOUTH CAROLINAS PCS, L.P., a Delaware limited partnership, BELLSOUTH
PERSONAL COMMUNICATIONS, INC., a Delaware corporation, each doing business as
BELLSOUTH MOBILITY PCS, and their respective BellSouth Affiliates, successors
and assigns (hereinafter collectively referred to as "BellSouth") and TRITEL
COMMUNICATIONS, INC., a Delaware corporation, and its successors and permitted
assigns (hereinafter referred to as the "User").
WHEREAS, BellSouth is the owner of communications towers located on
property either owned, leased or licensed by BellSouth (individually, a "Tower",
collectively, "Towers");
WHEREAS, User is a provider of certain wireless digital communications
services in the United States as such services are more particularly defined in
Section 3 hereinbelow ("User's Wireless Business");
WHEREAS, BellSouth and User desire to enter into this MSA which will
establish the general terms and conditions whereby User will lease, sublease,
license or sublicense, as applicable, from BellSouth space on one or more of
BellSouth's Towers and ground space on BellSouth's land (real property owned,
leased or licensed by BellSouth with respect to each Site (as defined below)
hereinafter the "Property") for the construction of an equipment shelter or
cabinet(s) for the placement of User's communications equipment for operation of
User's Wireless Business;
WHEREAS, BellSouth and User will enter into a Site Agreement in form
and substance substantially similar to Schedule "I" attached hereto and by
reference made a part hereof (individually, a "Site Agreement"; collectively,
"Site Agreements") which will establish the terms for use of a specific Site.
NOW, THEREFORE, for valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
1. MSA. This MSA sets forth the general terms and conditions upon which
all Sites, as defined below, shall be leased, subleased, licensed or sublicensed
to User. It is understood that this MSA is limited to Sites in the 000 XXX
(Xxxxxxxxx xxxx). From time to time during the term hereof, User and BellSouth
may execute Site Agreements in the form attached hereto as Schedule "I" and by
reference made a part hereof. Each Site Agreement shall identify a particular
Site made subject to this MSA and more fully set forth specific terms particular
to that Site. In the event of a conflict or inconsistency between the terms of
this MSA and a Site Agreement, the terms of the Site Agreement shall govern and
control for that Site.
2. Demise. Subject to the following terms and conditions, BellSouth
hereby agrees to lease, sublease, license or sublicense, as applicable, to User
certain space on one or more of BellSouth's Towers together with sufficient
space on the Property with easements for access and
utilities. User's use of the Tower and Property shall be limited to the Tower
and Property, together with easements for access and utilities described and
depicted in Exhibit "A" to each Site Agreement (the Property, the space upon
BellSouth's Tower utilized by User and any easements providing access and
utilities to the Property are sometimes referred to herein individually as a
"Site" or collectively as "Sites"). With respect to any Sites which User may
desire to lease, sublease, license or sublicense, as applicable, User shall give
written notice to BellSouth at the address provided in Section 27 hereof of such
desire. After receipt of written notice from User of such desire to add a Site
to this MSA, BellSouth shall provide User with a Site Application to be
completed by User. Upon receipt by BellSouth of the completed Site Application,
together with any application fee required by BellSouth, BellSouth shall
evaluate the feasibility of utilization of each Site requested by User to be
added to this MSA. Except in extraordinary circumstances, as determined by
BellSouth in its discretion, the application fee generally will not exceed
[CONFIDENTIAL TREATMENT REQUESTED] per Site. The Site Application fee, once
received by BellSouth shall in all instances under this MSA be applied toward
the first base rent payments due under the applicable Site Agreement. BellSouth
will use reasonable best efforts to respond promptly to initial requests for a
Site Application and to Site Applications submitted by User. BellSouth may
decline additional Sites for any reason whatsoever. If BellSouth desires to
lease or to license any Site to User, BellSouth shall deliver to User three (3)
completed, unexecuted counterparts of a Site Agreement pertaining to such Site.
User shall have a period of fifteen (15) business days from User's receipt of
such Site Agreement to execute and return same to BellSouth. If User fails to
return all counterparts of the Site Agreement, properly executed and unmodified
by User, together with the Site Cost Reimbursement Amount (as defined herein)
set forth in the Site Agreement, within such fifteen (15) day period such Site
Agreement shall immediately be deemed null and void. Upon receipt of the
properly executed, unmodified counterparts of the Site Agreement, BellSouth will
execute same and return a fully executed original of the Site Agreement to User,
whereupon the Site Agreement shall be deemed to be added to this MSA.
3. Permitted Use. Subject to the terms of this MSA and the Site
Agreement for each respective Site, User shall be permitted the non-exclusive
right to install, maintain, operate, service, and subject to BellSouth's prior
written approval, which approval shall not be unreasonably withheld, conditioned
or delayed, modify and replace its communication equipment as more particularly
described on the User's Co-Location Application attached as Exhibit "C" to each
Site Agreement (the "Facilities") at such Site, including without limitation,
BellSouth's Tower, which Facilities shall be utilized for the transmission and
reception of wireless voice and data communications using digital communications
services technology. These shall be the only permissible uses under this MSA and
each Site Agreement, and User specifically acknowledges that microwave
facilities are not permitted uses.
4. Master Lease/License. A Site Agreement shall be subject and
subordinate to all of the terms and conditions of the agreement pursuant to
which BellSouth has rights in and to the Property (the "Master Lease/License"),
which are incorporated in the Site Agreement by reference and a copy of which
has been or will be delivered to User and attached to the Site Agreement as
Exhibit "A-1", subject to redaction of the financial terms set forth therein or
as otherwise required by confidentiality and non-disclosure provisions contained
therein. If
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applicable, BellSouth agrees to provide User with copies of all amendments to,
extensions of and renewal notices given pursuant to the Master Lease/License,
subject to redaction of the financial terms set forth therein or as otherwise
required by confidentiality and non-disclosure provisions contained therein.
BellSouth represents to User that as of the Execution Date of a Site Agreement
neither BellSouth nor BellSouth's Landlord ("Master Landlord") is in default
under the Master Lease/License.
5. Conditions Precedent.
(a) Conditions Precedent Based On Consent of Master Landlord. If
BellSouth is party to a Master Lease/License for a Site, the Site Agreement for
such Site shall be contingent upon BellSouth and/or User, as applicable, being
able to satisfy one (1) of the following conditions precedent within sixty (60)
days of the Execution Date of the Site Agreement, if required by the Master
Lease/License, in BellSouth's sole reasonable opinion.
(i) Notice to Master Landlord of [Sublease/License]. If notice to
the Master Landlord of the sublease, license or sublicense, is required by the
Master Lease/License, in BellSouth's sole reasonable opinion, BellSouth shall so
notify the Master Landlord and shall deliver, upon User's request, evidence of
such notification; or
(ii) Consent of Master Landlord to [Sublease/License] of Tower
Space and Ground Space. BellSouth or User, at BellSouth's option, will obtain
the written consent of Master Landlord to BellSouth's [sublease, license,
sublicense] to User of Tower Space and Ground Space (as such terms are defined
in the Site Agreement), if required by the Master Lease/License, in BellSouth's
sole reasonable opinion;
(iii) Consent of Master Landlord to [Sublease/License] of Tower
Space and Master Landlord Leasing Ground Space to User. BellSouth or User, at
BellSouth's option, will obtain (aa) the written consent of Master Landlord to
BellSouth's [sublease, license, sublicense] to User of Tower Space, if required
by the Master Lease/License, in BellSouth's sole reasonable opinion, and (bb) a
written ground lease from the Master Landlord providing for the [lease/license]
of ground space from the Master Landlord to User for User's Ground Facilities
(as defined in the Site Agreement), upon terms and conditions acceptable to User
in User's sole and absolute discretion.
BellSouth and User shall cooperate with one another in efforts to obtain the
consent of the Master Landlord pursuant to Sections 5(a)(ii) and 5(a)(iii)
hereof.
If BellSouth or User is able to obtain the written consent of the Master
Landlord to BellSouth's sublease, license or sublicense to User of Tower Space
and Ground Space pursuant to Section 5(a)(ii), (aa) BellSouth or User shall
deliver to the other a copy of such written consent, (bb) the condition
precedent to BellSouth leasing Tower Space and Ground Space to User shall be
deemed satisfied, and (cc) the term "Leased Space" as used in the Site Agreement
shall mean Tower Space and Ground Space and the term "Facilities" as used in the
Site Agreement shall mean the Tower Facilities and Ground Facilities.
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If BellSouth or User is able to obtain the written consent of Master Landlord to
BellSouth's lease to User of Tower Space (but not to BellSouth's sublease,
license or sublicense to User of the Ground Space) and BellSouth or User is able
to obtain a ground lease from the Master Landlord pursuant to Section 5(a)(iii)
hereof, (aa) BellSouth or User shall deliver to the other a copy of such written
consent, (bb) User shall deliver to BellSouth a copy of the certification as to
the ground lease or license from the Master Landlord to User in substantially
the form of Exhibit D attached to the Site Agreement, (cc) the condition
precedent set forth in Section 5(a)(ii) hereof shall not have been satisfied but
the condition precedent set forth in Section 5(a)(iii) hereof shall be deemed
satisfied, and (dd) the term "Leased Space" as used in the Site Agreement shall
mean Tower Space only and the term "Facilities" as used in the Site Agreement
shall mean Tower Facilities only. If BellSouth elects to obtain the ground lease
described in Section 5(a)(iii), then such ground lease shall be subject to
User's prior approval and User shall be responsible for the payment of
BellSouth's reasonable, documented costs in obtaining the ground lease and of
all rents and other sums due under the ground lease, as and when such sums are
due and payable.
If BellSouth or User is unable to satisfy the condition set forth in Section
5(a)(ii) or BellSouth or User is unable to satisfy the conditions set forth in
Section 5(a)(iii) within sixty (60) days of the Execution Date of the Site
Agreement, the Site Agreement shall automatically terminate and become null and
void, unless extended in writing by mutual consent of BellSouth and User. Upon
such termination, neither BellSouth nor User shall have any obligations to the
other except for any indemnity obligations, including without limitation,
environmental indemnity and tax obligations, arising prior to the date of
termination.
(b) Conditions Precedent to Site Commencement Date. Each Site
Agreement is further contingent upon User being able to satisfy the following
conditions prior to the Site Commencement Date (and all such conditions shall be
deemed satisfied upon the Site Commencement Date), as defined in the Site
Agreement:
(i) Approvals. User obtaining, after the Execution Date of the
Site Agreement, all certificates, permits, licenses and other approvals that may
be required by any federal, state or local authorities (the "Approvals") to
permit User's intended use of the Leased Space. BellSouth shall cooperate, at
User's cost, with User in its effort to obtain such Approvals. In the event that
User notifies BellSouth that (aa) any application for an Approval is rejected,
(bb) an Approval is canceled, expires, lapses, or is otherwise withdrawn or
terminated for any reason whatsoever prior to installation of the Facilities by
User, or (cc) any application for Approval is not likely to be obtained or
approved, as determined in User's sole discretion, the Approvals shall be deemed
to not have been obtained by User.
(ii) Radio Frequency Propagation Test. User determining, in
User's sole discretion, that the results of any radio frequency propagation
tests are satisfactory, such that User is able to use the Leased Space for
User's intended use.
(iii) Utilities and Access. User determining, in User's sole,
reasonable discretion, that (aa) telephone and electric utilities are available
at the Leased Space or Tower of sufficient capacity to accommodate User's
Facilities and (bb) ingress and egress is available to and from the Leased Space
and to and from a publicly dedicated road.
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(iv) Tower Capacity. User determining in User's sole, reasonable
discretion based on a Tower analysis satisfying the requirements of Section
10(ii) hereof that the Tower is of sufficient capacity to accommodate the load
requirements of User's Facilities.
(v) Title. User determining in User's sole discretion that the
status of title as to the Leased Space and easements granted herein are
acceptable to User.
(vi) Hazardous Substances. User determining in User's sole
discretion that the Leased Space and Property are free of all Hazardous
Substances, as defined in Section 15(b) hereof.
If any one (1) of the conditions set forth above will not be satisfied
as of the Site Commencement Date of the Site Agreement, User shall have the
right to terminate the Site Agreement by giving BellSouth written notice
thereof. If User elects to terminate the Site Agreement, the Site Agreement
shall terminate as of the date BellSouth receives such notice from User and
neither BellSouth nor User shall have any further obligation under this Site
Agreement except for any indemnity obligations and User's obligation to remove
its Facilities from the Property.
(c) Site Cost Reimbursement Amount. User shall pay a one-time site
cost reimbursement amount ("Site Cost Reimbursement Amount") to BellSouth, paid
by User to BellSouth not later than the execution and delivery of the Site
Agreement. Except in certain circumstances, as set out herein, the Site Cost
Reimbursement Amount generally will not exceed [CONFIDENTIAL TREATMENT
REQUESTED] per Site. Notwithstanding the foregoing, in the event that User has
not commenced (for purposes of this paragraph "commenced" meaning the Site
Commencement Date has occurred and the first annual installment or rent has been
paid) at least twenty (20) Site Agreements on or before August 2, 1999, then
User shall pay to BellSouth a Site Cost Reimbursement amount of [CONFIDENTIAL
TREATMENT REQUESTED] for (i) each Site Agreement commenced as of August 2, 1999
and (ii) each Site Agreement commenced after August 2, 1999 until User has
commenced twenty (20) Site Agreements. The Site Cost Reimbursement Amount
payable pursuant to provision (i) in the preceding sentence shall be paid
immediately upon request of BellSouth, and the Site Cost Reimbursement Amount
payable pursuant to provision (ii) in the preceding sentence shall be payable in
the manner otherwise provided herein. BellSouth and User acknowledge and agree
that the Site Cost Reimbursement Amount reflects an equitable sharing of the
capital costs incurred by BellSouth with respect to the construction of the
Tower and the ability of User to locate its Facilities thereon. Consequently,
the Site Cost Reimbursement Amount is independent of and in addition to, and not
in substitution or reduction of, all or any part of the Base Rent specified in
such Site Agreement, or the fair market value of the rent applicable to such
Site. In the event that the Site Cost Reimbursement Amount is paid by User but
the Site Agreement does not reach the Site Commencement Date because of a
failure of a condition precedent described in Section 5 or such other reason
described herein, through no fault of User, BellSouth shall refund the Site Cost
Reimbursement Amount.
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6. Term.
(a) MSA Term. The MSA term shall begin on the MSA Commencement Date
and shall continue until midnight of the fifth (5th) anniversary of the MSA
Commencement Date, unless terminated earlier in accordance with the terms hereof
(the "Term"). The MSA shall renew automatically for one (1) additional period of
five (5) years unless either party sends notice to the, other of its election
not to renew the MSA. Any such extension term shall be part of the "Term" as
described herein.
(b) Site Agreement Term and Renewal. The initial term of each Site
Agreement and any renewal terms are provided in each Site Agreement.
Notwithstanding the expiration of this MSA, the terms and conditions of this MSA
shall continue to apply to each Site Agreement until the Site Agreement Term,
including any renewal terms expires or terminates.
7. Rent.
(a) Base Rent. During the Initial Term of any Site Agreement, User
shall pay annual rent in equal annual installments in the amount set forth in
each Site Agreement, in advance on or before the Site Commencement Date and then
on each anniversary date of the Site Commencement Date. Except in certain
unusual circumstances, the annual base rent for the applicable Sites shall be
(i) [CONFIDENTIAL TREATMENT REQUESTED] annually for the first fifteen (15) Sites
subject to this MSA; (ii) [CONFIDENTIAL TREATMENT REQUESTED] annually for the
sixteenth (16th) through thirtieth (30th) Sites (inclusive) subject to this MSA;
(iii) [CONFIDENTIAL TREATMENT REQUESTED] annually for each Site after the
thirtieth (30th) Site subject to this MSA. Rent shall be payable by check, and
checks shall be made payable to the order of the BellSouth entity specified in
the applicable Site Agreement and shall be mailed to the address designated in
the applicable Site Agreement.
(b) Taxes.
(i) Property Taxes. User shall be responsible for the reporting
and payment when due of any tax directly related to User's ownership or
operation of the Facilities and such reporting and payment shall be made
directly to the appropriate tax authorities.
(ii) Sales Taxes. BellSouth shall be responsible for billing,
collecting, reporting, and remitting sales taxes directly related to rent
payments received pursuant to this MSA and any Site Agreement, if any. User
shall be responsible for reimbursing BellSouth for all sales taxes billed
related to rent payments received pursuant to this MSA and any Site Agreement,
such reimbursement to be due and payable within thirty (30) days of BellSouth's
delivery to User of a written invoice and copies of paid tax receipts specifying
the payments made by BellSouth.
(c) Site Agreement Renewal Terms. If and when one or more of the
Site Agreement Renewal Terms (as defined in the applicable Site Agreement) are
exercised by the User, upon the commencement of each Renewal Term, the annual
rent for each Renewal Term
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shall increase by the percent set forth in such Site Agreement over the annual
rent for the immediately preceding term.
(d) Additional Facilities. If, after the installation of the
Facilities, User, with the prior written approval of BellSouth as required by
Section 10 hereof, modifies the Facilities by adding additional equipment to the
Tower which materially increases the size or structural or windload on the Tower
or is in a different location on the Tower than the Facilities such that
additional rent is payable pursuant to Section 10(vi) hereof, BellSouth and User
acknowledge that the rent for the Site shall be increased by an amount set forth
in the Site Agreement for each piece of additional equipment. If the Site
Agreement is silent on rent for additional equipment, BellSouth and User
acknowledge that the rent for the Site shall be increased by a mutually agreed
upon amount. In the event BellSouth and User cannot agree upon the increased
rent, the increase in rent shall be the fair market rental value for the
additional equipment placed on the Tower, which shall be determined by BellSouth
and User each designating, within thirty (30) days of the dispute, an
independent MAI appraiser with demonstrated experience appraising similar
property and telecommunication uses and shall be the average of the two
appraisals prepared by the appraisers. Each party shall pay the fees of its
appraiser.
8. BellSouth to Locate on User's Towers. As additional consideration
for BellSouth's agreement to lease, sublease, license or sublicense, as
applicable, the Site to User, User hereby agrees to lease, sublease, license or
sublicense, as applicable, to BellSouth space on User's tower and ground space
adjacent to such tower for the construction and placement of an equipment
shelter or cabinet in the same geographic markets that User is leasing,
subleasing, licensing, and sublicensing from BellSouth (such tower and ground
space collectively referred to as a "Reciprocal Site") and shall be evidenced by
a site agreement and master site agreement, in substantially the same form as
the Site Agreement for BellSouth's Tower and Property and this MSA. In the event
User refuses to lease, sublease, license or sublicense, as applicable, a
Reciprocal Site to BellSouth, for reasons unrelated to User's capacity, zoning,
permits, RF interference (based upon standard and accepted engineering
principles) licenses and other required approvals, or environmental issues with
respect to such Reciprocal Site, BellSouth may elect to terminate any existing
Site Agreement with respect to a Site in the same geographic market as the
proposed Reciprocal Site refused by User in accordance with the provisions set
forth in Section 20(b) hereof.
9. Relocation of Facilities.
(a) With respect to any Site, BellSouth reserves the right to change
the location of User's Facilities at the Site upon sixty (60) days written
notice to User to accommodate the communications equipment (including a change
in frequency) of BellSouth. User shall relocate or remove the Facilities, at
BellSouth's expense, within sixty (60) days of receipt of any such notice by
User (provided, however, that if User has diligently pursued efforts to change
the location of User's Facilities on the Tower during such sixty (60) days but
has been unable to complete the same, User shall have an additional thirty (30)
days to complete the work); provided, however, if the relocated space is
unacceptable to User, in User's reasonable discretion, User shall have the right
to terminate the Site Agreement upon written notice to
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BellSouth, which termination shall be effective the earlier of (i) the date set
forth in User's termination notice, or (ii) two hundred forty (240) days from
User's receipt of BellSouth's relocation notice. Upon such termination, the
parties to the Site Agreement shall be released from all duties, obligations,
liabilities and responsibilities under the Site Agreement except for any
indemnity obligations, including without limitation, environmental indemnity and
tax obligations, and User's obligation to remove the Facilities from the
Property. In the event BellSouth needs additional capacity at a Site for its
equipment and there is no space on the Tower in which to relocate User's
Facilities, upon two hundred and forty (240) days notice, BellSouth may
terminate a Site Agreement, and thereafter the Site Agreement shall be of no
further force and effect, and except for any indemnity obligations, including
without limitation, environmental indemnity and tax obligations, and User's
obligation to remove the Facilities from the Property, and BellSouth's
obligation to reimburse User for the book value (to be determined at the date of
termination of the Site Agreement) of any structural enhancements made by User
to such Site, the parties hereto shall be released from all duties, obligations,
liabilities and responsibilities under the Site Agreement.
(b) In the event of a termination under this Section 9 within the
Initial Term of the terminated Site Agreement, BellSouth shall also reimburse
User a pro rata portion of the Site Cost Reimbursement Amount applicable to such
Site Agreement based on a five-year proration of the full Site Cost
Reimbursement Amount. The amount reimbursed by BellSouth shall be equal to the
pro rata portion of the Site Cost Reimbursement Amount from the date of
termination to the expiration of the Initial Term. BellSouth shall deliver such
reimbursement to User within thirty (30) days of the termination date of the
Site Agreement.
10. Installation, Modification and Relocation.
During the term of the Site Agreement, including any renewal terms,
User shall have the right at User's expense, to install, and with BellSouth's
prior written approval, which approval shall not be unreasonably withheld,
delayed or denied, relocate and modify the Facilities on the Site. BellSouth
agrees that if User is simply modifying or replacing its Facilities at the Site,
and such replacement equipment shall not increase the wind load or structural
strain on the Tower, increase User's space at the Site, cause interference, or
change the frequency, BellSouth shall not condition approval on an increase in
base rent. User's installation, maintenance, relocation, modification, and
removal shall be in compliance with the following requirements:
(i) Facilities. With regard to a modification or relocation of
the Facilities, User shall provide BellSouth with an updated Exhibit "C" listing
all communications equipment to be located on the Site.
(ii) Tower Analysis. User shall submit to BellSouth a completed
Tower analysis, prepared by licensed structural engineer approved by BellSouth
(a) describing any and all installations, modifications, or relocations, as the
case may be, of the Facilities on the Tower, (b) including information
demonstrating continued compliance with the Tower manufacturer's warranty
requirements, if delivered to User, current EIA/TIA standards, other legal
requirements for the Tower, and any other information reasonably requested by
BellSouth and (c) demonstrating that the installation, modification, or
relocation, as the case may be, does
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not exceed the load capacity of the Tower. The Tower analysis shall be based on
all Facilities listed on Exhibit "C" regardless of whether User does not intend
to initially install all Tower Facilities. If the Tower is a monopole, User, at
User's cost, shall be responsible for the installation of any platforms and
cutting of portals required to install User's Tower Facilities; provided,
however, User shall not cut any portal in the Tower if the cutting of such
portal would adversely affect the manufacturer's warranty on the Tower, if any,
or the integrity of the Tower. If the Tower is structurally inadequate to
accommodate User's proposed installation, modification or relocation, User,
subject to BellSouth's consent, which consent shall not be unreasonably withheld
or delayed, shall have the right to structurally enhance the Tower to
accommodate User's proposed installation, modification or relocation of User's
Tower Facilities, provided User complies with the following additional
requirements:
(1) Plans and Specifications for Structural Enhancement. User
shall submit to BellSouth all plans and specifications for structurally
enhancing the Tower, the proposed architect, engineer and/or contractor involved
in the structural enhancement, and a structural analysis demonstrating that the
Tower, as structurally enhanced, will accommodate all equipment located on the
Tower at the time of the structural enhancement and the proposed installation,
modification, or relocation of User's Tower Facilities, as the case may be, all
of which shall be approved by BellSouth, which approval shall not be
unreasonably withheld, conditioned or delayed. If no response is received from
BellSouth within forty-five (45) days of submission, the same shall be deemed
approved by BellSouth upon the expiration of said forty-five (45) days.
(2) Payment of Costs. User shall pay all costs incurred in
structurally enhancing the Tower including, without limitation, all material
costs, all architectural, engineering and contracting fees, all certificate,
permit, license and approval fees, and all actual, reasonable costs incurred by
BellSouth to review the plans and specifications and structural analysis.
(3) Ownership of Structural Enhancements. Upon completion of
and payment by User for the structural enhancements, such structural
enhancements shall become the property of BellSouth, and upon request, User
shall promptly provide to BellSouth any bills of sale or documentation
evidencing BellSouth's ownership of said enhancements.
(iii) Insurance. User shall provide BellSouth with insurance
certificates for each Site evidencing that the insurance required by Section 17
of this MSA is in full force and effect including, without limitation, worker's
compensation insurance and the insurance required of User's contractors and
subcontractors.
(iv) Compliance with Laws. User's installation, modification or
replacement of the Facilities on the Site and structural enhancement of the
Tower, if any, shall be in compliance with all applicable laws, regulations and
requirements of any federal, state or local authority, including without
limitation, OSHA work practice standards for performing said work. BellSouth, at
no cost to BellSouth, agrees to cooperate with User to obtain such compliance.
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(v) Availability of Space. With regard to the relocation of the
Facilities, space on the Tower must be available at the levels, and/or space on
the ground must be available at the locations, to which User desires to relocate
and, if consent of the Master Landlord is required to relocate the Ground
Facilities, then such consent must be obtained prior to relocation.
(vi) Additional Rent. User shall pay BellSouth additional rent,
in an amount determined in accordance with the provisions of Section 7(d)
hereof.
(vii) Plans and Specifications, Contractor. User shall submit to
BellSouth (i) the plans and specifications, a detailed site plan and any other
construction documents setting forth the proposed construction, installation and
other work to be performed on the Site and Tower and (ii) the names of the
proposed contractors and subcontractors performing any such construction,
installation or other work, all of which shall be approved by BellSouth, such
approval not to be unreasonably withheld, conditioned or delayed. If no response
is received from BellSouth within forty-five (45) days, the same shall be deemed
approved. Following the completion of any installation, modification or
relocation, User shall provide to BellSouth, at User's expense, updated,
as-built drawings, initialed by User, documenting all installed Facilities on
the Site and conforming to the plans and specifications, site plan, and any
other construction documents approved by BellSouth. The as-built drawings shall
include an as-built survey locating the Site to a monument or the Tower (the
"As-Built Survey"). Upon receipt and provided the As-Built Survey conforms to
the plans and specifications, site plan and any other construction documents
approved by BellSouth, BellSouth shall initial the As-Built Survey.
(viii) Liens. User shall keep the Site, Tower, Property and
Facilities free from any liens arising from any work performed, materials
furnished or obligations incurred by or at the request of User in accordance
with the provisions of Section 16(c) hereof, with the sole exception of any
liens with respect to equipment financing obtained by User for such Facilities
provided that such equipment financing liens do not encumber, attach to or
affect, in any manner, BellSouth's or the Master Landlord's right, title or
interest in and to all or any part of the Towers or the Property.
(ix) Pre-construction Meeting, Other Construction Meetings. Prior
to commencing any installation and/or construction, a duly authorized
representative of User shall meet with a duly authorized representative of
BellSouth at the Tower site to mutually approve the construction methods and
procedures, such approval not to be unreasonably withheld, conditioned or
delayed by either party. BellSouth and User agree to cooperate with one another
in scheduling such pre-construction meeting. In addition, BellSouth and User
will meet during and upon substantial completion of construction to mutually
approve grounding and punch-list items, respectively, and BellSouth and User
agree to cooperate with one another in scheduling such meetings.
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11. Ingress and Egress.
(a) Upon the Execution Date of a Site Agreement, BellSouth hereby
grants to User, as well as User's contractors, subcontractors, agents,
affiliates, or employees, subject to the limitations set forth herein or in the
applicable Site Agreement, (i) the non-exclusive right to use the Tower, at
locations mutually agreed upon by User and BellSouth, for the term hereof for
ingress, egress, and access to the Tower Space adequate to service the Tower
Facilities and (ii) if the term "Leased Space" as used in the Site Agreement
includes Ground Space, a non-exclusive easement for the term hereof, for
ingress, egress, and access to the Leased Space, on a twenty-four (24) hours per
day, seven (7) days per week basis, across (aa) the Property in locations
mutually agreed upon by BellSouth and User and (bb) if the Property is leased or
licensed by BellSouth, across the property of the Master Landlord to the extent
and in the locations of the Master Landlord-granted ingress, egress and access
easements to BellSouth in the Master Lease/License. User or User's qualified,
insured contractors under User's direct supervision shall have access to the
Tower upon twenty-four (24) hours notice to BellSouth, which access shall be
subject to the accompaniment, at BellSouth's option, of BellSouth's field
personnel to provide an escort and/or supervision, and User shall reimburse
BellSouth for BellSouth's actual, reasonable costs related thereto within thirty
(30) days of BellSouth's delivery to User of a written invoice for such costs.
The foregoing notwithstanding, User shall have access to the Leased Space and
User's Facilities immediately and without notice in the event of an emergency,
and User shall notify BellSouth as soon as practicable of User's access during
such emergency. Other security measures required for a particular Site may be
set forth in the Site Agreement.
(b) Prior to the Execution Date of a Site Agreement, User may have
access to a Property and the Tower situated thereon only upon the execution and
delivery by BellSouth and User of an entry and testing agreement in form and
substance substantially similar to Schedule "II" attached hereto and by
reference made a part hereof (an "Entry and Testing Agreement") which will
establish the terms under which User may access the Property and Tower for the
"Permitted Activities," as defined in the applicable Entry and Testing
Agreement.
12. Utilities, Cable Runs. Upon execution of a Site Agreement,
BellSouth hereby grants to User the non-exclusive right to use the Tower for the
term hereof to place any cable runs on the Tower, at locations mutually agreed
upon in writing by BellSouth and User, in order to service or operate the
Facilities, subject to BellSouth's prior written approval of the design and
installation method and procedures, such approval not to be unreasonably
withheld, conditioned or delayed. If no response is received from BellSouth
within forty-five (45) days, the same shall be deemed approved. If the term
"Leased Space" as used in the Site Agreement includes the Ground Space, upon
execution of the Site Agreement, BellSouth hereby grants to User a non-exclusive
easement for the term hereof to place any utilities or cable runs on or bring
utilities across the Property and if the Property is leased or licensed by
BellSouth, the property of the Master Landlord to the extent and in the
locations the Master Landlord granted utility and cable run easements. User
shall pay the cost of all utility service necessary to install, maintain and
operate the Facilities. Where practicable, User shall install a separate meter
for User's use. If installation of a meter is not practicable, the parties shall
prorate such charges based on approximate actual use within thirty (30) days of
receipt by BellSouth of any invoice from an
11
applicable utility company. User shall obtain and pay the cost of telephone
connections. Installation of telephone service shall be in compliance with the
procedures for installation and maintenance of Facilities set forth herein.
13. User's Covenants. User covenants that from the Execution Date of a
Site Agreement, that the Facilities, and all installation, operation,
modification, relocation and maintenance associated therewith, will:
(a) In no way damage BellSouth's Tower, Property, any other
structure or accessories thereto, any Prior User's, as defined below, equipment
or facilities or any Subsequent User's, as defined below, equipment or
facilities, normal wear and tear excepted. If damage, other than normal wear and
tear, occurs and such damage is caused by User, or User's employees, agents,
contractors, or subcontractors, then User shall be liable for repair or
reimbursement of repair for said damages;
(b) Not interfere with BellSouth's operation on the Tower or the
operations of any Prior User (as defined herein). For purposes hereof, a "Prior
User" shall mean any other user of the Tower that has submitted to BellSouth a
site application in good faith prior to the submission of User's Site
Application for such Tower, which site application serves as the basis for a
written agreement for the use of the Tower by such user. In the event BellSouth
determines, in its sole discretion based on standard and accepted engineering
practices, that User's Facilities are interfering with the operation of
BellSouth's or a Prior User's equipment, authorized frequency spectrum or signal
strength, upon the request of User, BellSouth shall provide User with a copy of
the report. User shall, within forty-eight (48) hours of notification, take all
steps necessary to eliminate the interference, with the exception of ceasing
User's operations. If User cannot eliminate or resolve such interference within
the forty-eight (48) hour period, BellSouth shall have the right to require that
User turn off its Facilities and only turn on its Facilities during off-peak
hours specified by BellSouth in order to test whether such interference
continues or it has been satisfactorily eliminated. In the event that User is
unable to resolve or eliminate, to the satisfaction of BellSouth, such
interference within thirty (30) days from the initial notification of such
interference, User will immediately remove or cease operations of the
objectionable Facilities and BellSouth shall have the right to terminate the
applicable Site Agreement. User shall not on any Site interfere with BellSouth's
use of the Site, the provision of services to BellSouth's customers, or the use
of the Site by other Prior Users. Such interference shall be deemed a material
breach of the Site Agreement.
(c) Not interfere with the maintenance of BellSouth's Tower and the
Tower lighting system;
(d) Keep the Facilities in a state of repair acceptable to BellSouth
in BellSouth's reasonable discretion;
(e) Identify the Facilities with metal tags fastened securely to its
bracket on the Tower and to each transmission line;
12
(f) Comply with all applicable rules and regulations of the Federal
Communications Commission ("FCC") and all federal, state and local laws
governing use of the Facilities on the Site;
(g) Comply with all applicable laws and ordinances and promptly
discharge or bond off any lien for labor or material within thirty (30) days of
filing same;
(h) Within thirty (30) days after the expiration or termination of a
Site Agreement, remove all Facilities from the Property and restore the Tower
and the Site to its original condition, normal wear and tear excepted. In the
event User has not removed the Facilities at the time of expiration or
termination of the Site Agreement, User shall pay rent at the then existing
monthly rate or on the existing monthly pro-rata basis if based upon a longer
payment term until such time as the removal of the Facilities is completed. In
the event User does not remove its Facilities within thirty (30) days after the
expiration or termination of the Site Agreement, BellSouth shall have the right
to remove and store the Facilities, at User's sole expense, and User shall
reimburse BellSouth for such expenses upon demand. If BellSouth removes the
Facilities, BellSouth shall not be responsible for any damage to the Facilities
during the removal and storage thereof unless caused by the gross negligence or
willful misconduct of BellSouth. Notwithstanding the foregoing, except as may be
required under any lease or license agreement pursuant to which BellSouth has
rights in and to the Property, User shall not be required to remove any
utilities or concrete pads upon which User's equipment shelters or cabinets may
have been located upon the expiration or termination of a Site Agreement;
(i) Upon the completion of the initial installation of the
Facilities on the Site, within thirty (30) days of the completion of the
relocation of the Facilities or installation of additional Facilities on the
Site and, for any year in which User has performed a site audit on the Site or
the Facilities or User's operations at the Site have changed or been modified,
by December 1 of each year throughout the term of the Site Agreement, User shall
provide BellSouth with the number of batteries, battery model numbers, battery
manufacturers, the number of cells in each battery and the amount of sulfuric
acid in User's batteries on the Site in order for BellSouth or if, the property
is leased or licensed by BellSouth, the Master Landlord, to file such
information with the Environmental Protection Agency ("EPA") and any state and
local authorities as required by applicable law. Further, within thirty (30)
days of User's receipt of a written request from BellSouth, User will provide
BellSouth with any other information and copies of documents relating to the
Facilities located on the Site which BellSouth or Master Landlord may be
required to file with the FCC, EPA or any other governmental agencies. User
agrees to indemnify and hold BellSouth harmless from any liabilities resulting
from any inaccuracies in such information or documentation delivered by User to
BellSouth or User's failure to provide BellSouth with such information or
documentation in accordance with the provisions of this Section 13(i);
(j) Be coordinated through BellSouth and User shall cooperate with
BellSouth;
(k) It is recognized that certain construction, such as the erection
of an antenna support structure, can have an effect on a given AM Signal Array
within certain
13
parameters. This issue is addressed in Part 22 of the FCC Rules and Regulations.
A statement of this policy regarding structures erected or modified by
Commission Licensees in the vicinity of broadcast AM Stations is found in the
FCC Report No. CL-90-40, "Re-Publication of Standard Broadcast Re-Radiation and
Tower Construction Authorized Under Part 22 of the Rules." This policy states
that "Licensees and Permitees planning to construct or modify a tower within 2
miles of a directional AM array or within .5 miles of a non-directional AM tower
should take certain precautions..." to protect the array of said AM Station(s).
BellSouth has constructed its Towers in compliance with the rules and
regulations of the FCC. By User's collocation on any BellSouth Tower, User
accepts full responsibility (including financial responsibility) to take any and
all measures to cause User's facilities to comply with the FCC mandate as it
pertains to modifications of existing towers. After this mandate has been
satisfied, all documentation to substantiate compliance will be forwarded to
BellSouth for records maintenance.
In the event that the applicable Tower at any Site was fitted with a
detuning apparatus to protect the array of a given AM Station, User will be
responsible for following the procedure set forth below to ensure that the Tower
remains in compliance:
Prior to actual collocation on the existing BellSouth Tower, a certified
letter will be sent from User to the AM station(s) in question advising
said station(s) of the intent to collocate on the BellSouth existing
Tower. This document will reference that BellSouth has detuned the
structure with the installation of a detuning apparatus; furthermore,
the Tower will not be increasing in electrical height and therefore this
collocation will cause no further perturbation to the AM Signal. A copy
of this letter will be furnished to BellSouth for record purposes. After
the collocation has been completed, User will ensure the proper working
condition of the detuning apparatus by retaining the appropriate
BellSouth detuning consultant to take proximity measurements of the
Tower to adjust said apparatus to include the new antenna. This course
of action is necessary because the detuning apparatus will need to be
rendered inert during the actual installation of any additional antennas
to the structure. Any costs involved in following this procedure will be
the responsibility of User.
If , due to User's collocation, it becomes necessary to modify the
actual height of the Tower, it will be the responsibility of User to retain a
detuning consultant and perform a partial proof of performance report and/or
install/modify detuning apparatus to ensure the integrity of a given AM Signal.
14. BellSouth's Covenants. BellSouth covenants that during the term of
a Site Agreement it shall:
(a) Maintain the Tower and surrounding area in a safe condition;
(b) Except as otherwise set forth in this MSA, take no action which
would adversely affect the User's proposed use of the Site;
14
(c) Upon User's payment of rent and performance of its covenants,
but subject to the terms of any Master Lease/License pursuant to which BellSouth
has rights in and to the Property, and subject to any prior lien or encumbrance
on the Property, ensure User's quiet use and enjoyment of the Site;
(d) Comply with all applicable rules and regulations of the FCC, the
FAA, and all federal, state and local laws governing the Tower and Property;
(e) Not permit any Subsequent User (as defined herein) to interfere
with the operation of User's equipment, authorized frequency spectrum, signal
strength or Facilities. For purposes hereof, a "Subsequent User" shall mean any
other user of the Tower that submits to BellSouth a site application for the use
of such Tower after the submission of User's Site Application for such Tower. In
the event BellSouth determines, in its sole discretion based on standard and
accepted engineering practices, that the Subsequent User is interfering with the
operation of User's equipment, authorized frequency spectrum, signal strength or
Facilities, BellSouth shall, within forty-eight (48) hours of notification, take
all steps reasonably necessary to eliminate the interference, with the exception
of ceasing the Subsequent User's operations. If the Subsequent User cannot
eliminate or resolve such interference within the forty-eight (48) hour period,
BellSouth shall take all steps reasonably necessary to require that the
Subsequent User turn off its facilities and only turn on its facilities during
off-peak hours specified by BellSouth in order to test whether such interference
continues or it has been satisfactorily eliminated. In the event that the
Subsequent User is unable to resolve or eliminate, to the satisfaction of
BellSouth, such interference within thirty (30) days from the initial
notification of such interference, the Subsequent User will immediately remove
or cease operations of the objectionable facilities. Notwithstanding the
foregoing, if the Subsequent User is a governmental entity, BellSouth shall have
the right to give the governmental entity five (5) business days notice prior to
BellSouth being required to take any actions required by this Section 14(e) to
cure such interference. BellSouth shall give such governmental entity written
notice of the interference within two (2) business days of BellSouth's
determination that such action is reasonably necessary. BellSouth's notice to
the governmental entity shall be deemed given on the day it is delivered by hand
or on the day it is deposited with an overnight courier or the United States
mail;
(f) Not permit any Prior User or Subsequent User to damage User's
Facilities or the Site, normal wear and tear excepted. If damage by BellSouth, a
Prior User, or Subsequent User, other than normal wear and tear, occurs to
User's Facilities or the Site, then BellSouth, shall be liable for repair or
reimbursement of repair for such damages caused by such party;
(g) Use reasonable efforts not to violate or breach any term of the
Master Lease/License giving the Master Landlord the right, with the passage of
time and/or giving of notice, to terminate the Master Lease/License; deliver to
User copies of every notice of default, non-renewal or non-conformance received
from Master Landlord immediately upon receipt thereof by BellSouth, and User
shall have the right, but not the obligation, to cure any such defaults of
BellSouth within the periods afforded BellSouth under the Master Lease;
15
(h) Provide the Master Landlord with the information necessary to
enable the Master Landlord to comply with the reporting requirements of the EPA
or any other governmental agency; provided, however, BellSouth shall have no
obligation to provide the Master Landlord with information regarding the User's
Facilities if User has not provided BellSouth with such information in
accordance with the provisions of Section 13(i) hereof.
15. Compliance with Laws.
(a) FCC and FAA Compliance. BellSouth acknowledges that it is aware
of its obligations under Section 303 of the Communications Act of 1934 (47
U.S.C. 303), as amended, to maintain the painting and illumination of Towers as
prescribed by the FCC. BellSouth further acknowledges that it is aware that it
is subject to forfeitures assessed by the FCC for violations of such rules and
requirements. BellSouth further acknowledges that it, and not User, shall be
responsible for compliance with all Tower or building marking and lighting
requirements which may be required by the Federal Aviation Administration
("FAA") or the FCC. BellSouth shall indemnify and hold harmless User from any
fines or other liabilities caused by BellSouth's failure to comply with such
requirements. Further, should User be cited by either the FCC or FAA because a
Tower is not in compliance within the time frame allowed by the citing agency,
User may terminate the Site Agreement for such Tower immediately upon notice to
BellSouth, or, at User's option, cause the Tower to comply with FAA or FCC
requirements and BellSouth shall be responsible for reimbursing User for its
actual, reasonable costs incurred to bring the Tower into compliance with FAA or
FCC requirements. Notwithstanding the foregoing, if FAA or FCC compliance
requires the removal and/or relocation of the Tower, User's sole remedy shall be
to terminate the Site Agreement for such Tower. Upon such termination, the
parties to the Site Agreement shall be released from all duties, obligations,
liabilities and responsibilities under the Site Agreement except for any
indemnity obligations, including without limitation, environmental indemnity and
tax obligations, and User's obligation to remove the Facilities from the
Property.
(b) Hazardous Substances. BellSouth and User agree that they will
not use, store, dispose, or release any Hazardous Substances on the Property in
violation of any applicable federal, state or local law, regulation, or order.
"Hazardous Substances" means any hazardous material or substance which is or
becomes defined as a hazardous substance, pollutant or contaminant subject to
reporting, investigation or remediation pursuant to any federal, state or local
law, regulation or order; and any substance which is or becomes regulated by any
federal, state or local governmental authority; and any oil, petroleum products
and their by-products. BellSouth and User acknowledge that User, BellSouth,
Prior Users and Subsequent Users may each use diesel fuel and batteries in
appropriate small quantities from time to time to operate emergency back-up
generators provided that the transportation, delivery, storage, use and disposal
by User, BellSouth, a Prior User, or a Subsequent User, as the case may be, is
in compliance with all federal, state and local laws, regulations and orders.
BellSouth agrees to indemnify and save harmless the User against any and all
claims, liabilities, demands, causes of action, losses, damages, orders,
judgments, penalties, clean-up costs, costs and expenses including, without
limitation, attorneys fees and costs, arising from BellSouth's
misrepresentation, breach of warranty or breach of agreement contained in this
Section 15(b).
16
User agrees to indemnify and save harmless BellSouth against any and all claims,
liabilities, demands, causes of action, losses, damages, orders, judgments,
penalties, clean-up costs, costs and expenses including, without limitation,
attorneys fees and costs arising from User's misrepresentation, breach of
warranty or breach of agreement, contained in this Section 15(b). The
obligations of BellSouth and User to indemnify the other pursuant to this
Section 15(b) shall survive the termination or expiration of this MSA and each
Site Agreement.
(c) Phase I - Environmental Site Assessment. After the execution and
delivery by BellSouth and User of an Entry and Testing Agreement for a Site User
may perform a Phase I - environmental site assessment on the Property pertaining
to such Site provided such Phase I - environmental site assessment does not
involve any subsurface soils testing and further provided that User provides
BellSouth with a complete written copy of the Phase I - environmental site
assessment within ten (10) days of completion at no expense to BellSouth. Only
with BellSouth's prior written consent and subject to BellSouth's supervision
may User perform a Phase II - environmental site assessment on the Property.
(d) National Environmental Policy Act Compliance. Upon execution of
a Site Agreement, and except as provided in a Site Agreement, BellSouth
represents that the Tower and Property comply with the applicable provisions of
the National Environmental Policy Act, 47 C.F.R. Section 1.1301 et seq.
("NEPA"). BellSouth acknowledges that it, and not the User, shall be responsible
for compliance with all applicable provisions of NEPA. BellSouth shall indemnify
and hold harmless User from any fines or other liabilities caused by BellSouth's
failure to comply with NEPA. In no event shall BellSouth be responsible to User
for lost profits, market share or consequential damages. Further, should
BellSouth be cited for noncompliance with NEPA and fail to bring the Tower
and/or Property into compliance, User, in addition to any and all other remedies
available to User at law or in equity, may terminate this Site Agreement
immediately upon written notice to BellSouth, or, at User's option, cause the
Tower to comply with NEPA and BellSouth shall be responsible for reimbursing
User for its actual, reasonable costs incurred to bring the Tower into
compliance with NEPA requirements. Notwithstanding the foregoing, if NEPA
compliance requires the removal and/or relocation of the Tower, User's sole
remedy shall be to terminate the Site Agreement for such Tower. Upon such
termination, the parties hereto shall be released from all duties, obligations,
liabilities and responsibilities under this Site Agreement except for any
indemnity obligations, including without limitation, environmental indemnity and
tax obligations, and User's obligation to remove the Facilities from the
Property.
(e) User acknowledges and understands that BellSouth has installed
or will install certain signage and/or physical barriers pertaining to radio
frequency exposure from BellSouth's transmitter and other equipment. User shall
instruct all of its personnel and its contractors performing work at the site to
read carefully all such signage, to follow the instructions provided in such
signage, and to honor all physical barriers. In no event shall User's personnel
or contractors tamper with any such signage or barriers. User shall be
responsible for placement of signage or physical barriers at or near its
facilities at the Site in order to comply with applicable FCC radio frequency
exposure guidelines. BellSouth agrees that it shall cooperate with User in these
efforts and that BellSouth shall instruct its personnel and
17
contractors performing work at the Site to read carefully all such signage, to
follow the instructions provided in such signage, and to honor all physical
barriers. In no event shall BellSouth's personnel or contractors tamper with any
such signage or barriers. BellSouth and User shall cooperate in good faith to
minimize any confusion or unnecessary duplication that could result from similar
signage being posted respecting other carriers' transmission equipment (if any)
at or near the Site.
16. Assignment or Subletting, No Liens.
(a) Assignment by User. User shall not assign, convey, or transfer
its interest in this MSA or any Site Agreement without first obtaining
BellSouth's written approval, which approval may not be unreasonably withheld,
conditioned, or delayed. User is not permitted to sublease or to license its
interest in this MSA or any Site Agreement. Notwithstanding the foregoing, User
has the right, without the necessity of obtaining BellSouth's consent, to assign
this MSA or any Site Agreement to a User Affiliate (as defined herein), provided
that User notifies BellSouth in writing of such assignment. For purposes hereof,
"User Affiliate" shall mean any entity which controls, is controlled by, or is
under common control with User or to any entity resulting from the merger or
consolidation of User, or to any person or entity which acquires substantially
all of the assets of User, provided that such assignee assumes in full all of
the obligations of User under this MSA and the Site Agreements that may be
assigned.
(b) Assignment by BellSouth. BellSouth shall have the right to
assign this MSA or any Site Agreement to a BellSouth Affiliate (as defined
herein) or an assignee who purchases an MSA, RSA, BTA or MTA, as defined by the
FCC, or to any other party who expressly assumes BellSouth's obligations,
without User's prior approval, and shall notify User within a reasonable time of
any such assignment. For purposes of this MSA and the Site Agreements,
"BellSouth Affiliate" shall mean any entity which controls, is controlled by, or
is under common control with BellSouth Carolinas PCS, L.P. ("BSCP") or BellSouth
Personal Communications, Inc. ("BPCI"), to any entity resulting from the merger
or consolidation of BSCP or BPCI, or to any person or entity which acquires
substantially all of the assets of BSCP or BPCI, provided that such assignee
assumes in full all of the obligations of BellSouth, under this MSA and the Site
Agreements that may be assigned.
(c) Liens. Except as provided in Section 10(viii) hereof, User shall
keep the Property, the Tower, the Site and the Facilities free from any liens
arising from any work performed, materials furnished or obligations incurred by
or at the request of User. All persons either contracting with User or
furnishing or rendering labor and materials to User shall be notified in writing
by User that they must look only to User for payment for any labor or materials.
If any lien is filed against the Property, the Tower, the Site or the Facilities
as a result of the acts or omissions of User, its employees, agents or
contractors or subcontractors, User shall discharge it or bond it off within
thirty (30) days after User learns that the lien has been filed.
18
17. Insurance: Risk of Loss.
(a) User's Insurance. Prior to installation of the Facilities and to
having access to a Site and at all times during the term of a Site Agreement,
User shall provide proof of insurance for each individual Site, as outlined
below, satisfactory to BellSouth, and maintain the coverages specified below
during the term of a Site Agreement and until all Facilities are removed from
the Site following termination of a Site Agreement:
(i) Commercial General Liability Insurance with limits of not
less than $2,000,000 per occurrence and in the aggregate.
(ii) Workers' Compensation coverage in the statutory amount.
(iii) Employers Liability coverage with limits of not less than
$500,000 each accident, $500,000 each employee by disease and $500,000 policy
limit by disease.
(iv) Automobile Liability for Owned and Non-Owned Autos, Combined
Single Limit of $1,000,000.
(v) All Risk Insurance with Replacement Value coverage of User's
Facilities and personal property located on the Property.
(b) BellSouth's Insurance. At all times during the term of a Site
Agreement, BellSouth shall maintain insurance for such Site as outlined below:
(i) Commercial General Liability Insurance with limits of not
less than $2,000,000 per occurrence and in the aggregate.
(ii) Workers' Compensation coverage in the statutory amount.
(iii) Employers Liability coverage with limits of not less than
$500,000 each accident, $500,000 each employee by disease and $500,000 policy
limit by disease.
(iv) Automobile Liability for Owned and Non-Owned Autos, Combined
Single Limit of $1,000,000.
(v) All Risk Insurance with Replacement Value coverage of the
Tower and BellSouth's personal property located on the Property.
(c) Additional Insured. BellSouth shall be named as additional
insured on the policy listed in Section 17(a)(i) above. User shall be named as
additional insured on the policy listed in Section 17(b)(i) above. Additionally,
each party shall obtain a waiver of subrogation from its insurer on the policies
listed in Section 17(a)(i) and Section (b)(i) above. BellSouth and User may
satisfy this requirement by obtaining appropriate endorsements to any master or
blanket policy of liability insurance User or BellSouth, as applicable, may
maintain. No policy may be cancelable or subject to reduction of coverage except
after thirty (30) days prior written notice to BellSouth or User.
19
(d) Third Parties. User and BellSouth shall require their respective
contractors and subcontractors to carry workers' compensation insurance and
adequate liability insurance in conformity with the minimum requirements listed
above.
(e) Risk of Loss; Limitation of Liability. Notwithstanding anything
herein to the contrary, each party shall bear the risk of loss of or damage to
the respective personal property during the term of each Site Agreement except
to the extent caused by the negligence or willful misconduct of the other party.
Neither party shall be liable for any damage to the other party's personal
property except to the extent caused by a party's negligence or willful
misconduct. Notwithstanding anything herein to the contrary, the parties shall
not be liable for any consequential or incidental damages incurred by the other
party due to any malfunction, vandalism, acts of God (including, without
limitation, lightning, wind, rain, hail, fire or storms) or any other damage
resulting from any reason. In the event the Tower or other portions of the Site
are destroyed or so damaged as to be unusable, BellSouth or User shall be
entitled to elect to cancel and terminate the Site Agreement, or in the
alternative may elect to restore the Site, in which case User and BellSouth
shall remain bound hereby but shall be entitled to an abatement of rent during
the loss of use, if the User or BellSouth has not elected to cancel the Site
Agreement. In no event shall the leasehold or other interest created by the Site
Agreement be specifically enforceable and in no event shall either BellSouth or
User be responsible to any party for consequential damages, lost business
opportunities, profits or market share.
(f) Removal of Facilities. User's obligation to provide the
insurance coverages set forth in this Section 17 shall survive the expiration or
termination of the Site Agreement until the User's Facilities are removed from
the Property.
18. Indemnification. User does hereby agree to indemnify and save
BellSouth harmless from any and all claims, liabilities, demands, causes of
action, losses, damages, orders, judgments, penalties, costs and expenses,
including without limitation, reasonable attorneys fees and costs (i) for
property damage or personal injuries or death caused by the negligence or
willful misconduct of User, User's agents, employees, and contractors arising
out of User's occupancy of the Site or the installation, maintenance, operation
and removal of the Facilities, or (ii) resulting from the User's breach of any
term or condition of this MSA or a Site Agreement. BellSouth does hereby agree
to indemnify and save User harmless from any and all claims, liabilities,
demands, causes of action, losses, damages, orders, judgments, penalties, costs
and expenses, including without limitation, reasonable attorneys fees and costs
(i) for property damage or personal injuries or death caused by the negligence
or willful misconduct of BellSouth, BellSouth's agents, employees, and
contractors arising out of BellSouth's occupancy of the Site or the
installation, maintenance and operation of the Facilities, or (ii) resulting
from BellSouth's breach of any term or condition of this MSA or a Site
Agreement. The obligations to indemnify and hold harmless set forth in this
Section shall survive the expiration or termination of this MSA and each
respective Site Agreement.
19. Default.
(a) User's Default. Each of the following shall be considered a
default of a Site Agreement by the User:
20
(i) The failure to pay any rent or other charges required
pursuant to this MSA and the Site Agreement within thirty (30) days after
receipt of BellSouth's written notice of such failure;
(ii) The failure to cure, within thirty (30) days after receipt
of BellSouth's written notice thereof, any breach of any other term of this MSA
or the Site Agreement, provided, however, that if such breach is not capable of
being cured within such period but User has undertaken efforts to cure such
breach, and such breach is capable of being cured, such thirty (30) day period
shall be extended for so long as User is diligently attempting in good faith, to
cure such breach, not to exceed an additional thirty (30) calendar days (except
for promises relating to interference as set forth in Section 13(b) hereof);
(iii) Abandonment of the Site ("Abandonment" being defined as
User not using the Site for sixty (60) consecutive days);
(iv) The failure of User to eliminate interference problems as
set forth in Section 13(b); or
(v) If (a) User gives notice to any governmental body of its
insolvency or pending insolvency or makes an assignment for the benefit of
creditors or takes any other similar action for the protection or benefit of its
creditors, or files an answer admitting the material allegations of, or
consenting to, or defaults in answering any pleading filed with respect to the
commencement of any case or proceeding respecting User under any bankruptcy or
insolvency law, or (b) any order for relief is entered against User in any case
in bankruptcy, any order, judgment or decree is entered against User by a court
of competent jurisdiction appointing a receiver, trustee, custodian or
liquidator of User or of all or a substantial part of its assets, and such
order, judgment, or decree continues unstayed and in effect for a period of
ninety (90) consecutive days, or any proceeding for the reorganization of a
party under, or for an arrangement under, any bankruptcy or insolvency law
applicable to User is commenced whether by or against User and not dismissed
within ninety (90) days from commencement thereof.
Upon default of a Site Agreement by User past any applicable cure period, in
addition to all other remedies provided at law or in equity, BellSouth may, at
its option:
(aa) elect to remove all of the Facilities by legal process,
thereby terminating the Site Agreement, and store the Facilities at User's
expense, payable upon demand by BellSouth.
(bb) elect to treat the Site Agreement in full force and effect
and shall be entitled to collect the rent provided for hereunder.
Upon the termination of a Site Agreement pursuant to Section (aa) above, the
parties hereto shall be released from all duties, obligations, liabilities and
responsibilities under the Site Agreement except for indemnity obligations,
including without limitation, environmental indemnity and tax obligations, any
obligations arising prior to the date of termination, and User's obligation to
remove its Facilities from the Property.
21
(b) BellSouth's Default. Each of the following shall be considered a
default of a Site Agreement by BellSouth:
(i) The failure to cure, within thirty (30) days after receipt of
User's written notice thereof, any breach of any other term of this MSA or the
Site Agreement, provided, however, that if such breach is not capable of being
cured within such period but BellSouth has undertaken efforts to cure such
breach, and such breach is capable of being cured, such thirty (30) day period
shall be extended for so long as BellSouth is diligently attempting in good
faith, to cure such breach, not to exceed an additional thirty (30) calendar
days (except for promises relating to interference by a Subsequent User as set
forth in Section 14(e) which must be cured within the time frame set forth in
Section 14(e) and except for any breach of the Master Lease/License which must
be cured within the time frames set forth in the Master Lease/License); or
(ii) The failure of BellSouth to eliminate interference problems
as set forth in Section 14(e).
Upon default of a Site Agreement by BellSouth, in addition to all other remedies
provided at law or in equity, User may, at its option:
(aa) elect to cure BellSouth's default, in which event User shall
have the right to offset any and all reasonable costs incurred in curing
BellSouth's default against any rent or other amounts due BellSouth; or
(bb) elect to terminate the Site Agreement as of the date of the
default and to recover from BellSouth all damages (except those for which
BellSouth is not liable under the terms of this MSA) incurred by User as a
result of such default. Upon such termination, the parties hereto shall be
released from all duties, obligations, liabilities and responsibilities under
the Site Agreement except for any indemnity obligations, including without
limitation, environmental indemnity and tax obligations, obligation to pay
damages, and User's obligation to remove the Facilities from the Property.
20. Termination.
(a) Termination of Site Agreement.
(i) Termination by User. Notwithstanding anything to the
contrary contained in this MSA, User shall be entitled to terminate a Site
Agreement after the Commencement Date, with written notice to BellSouth in the
event:
(a) any Approval is canceled, expires, lapses, or is
otherwise withdrawn or terminated through no fault of the User
while User is working in the normal course of business to
maintain all such Approvals; or
(b) any notice by BellSouth of relocation of User's
Facilities pursuant to Section 9 hereof is unacceptable to User.
22
Any such termination by User shall be effective thirty (30) days after receipt
of written notice by BellSouth. Upon such termination, the Site Agreement shall
terminate and be of no further force and effect, and except for any indemnity
obligations, including without limitation, environmental indemnity and tax
obligations, and User's obligations to remove the Facilities from the Property,
the parties hereto shall be released from all duties, obligations, liabilities
and responsibilities under the Site Agreement.
(ii) Termination by BellSouth.
(a) In the event BellSouth's right to occupy the Property is
terminated at any time following execution of a Site Agreement as a result
of the termination or expiration of the Master Lease/License, the Site
Agreement shall automatically terminate upon the effective termination date
of the Master Lease/License and be of no further force and effect, and
except for any indemnity obligations and User's obligation to remove the
Facilities from the Property, the parties hereto shall be released from all
duties, obligations, liabilities and responsibilities under the Site
Agreement. It is specifically understood that BellSouth is under no
obligation to extend the term of the Master Lease/License, irrespective of
the term stated in the Site Agreement. The applicable Site Agreement shall
expire upon the expiration or termination of the applicable Master
Lease/License
(b) In the event BellSouth needs additional capacity at a
Site for its equipment, BellSouth may terminate a Site Agreement as
provided in Section 9 hereof.
In the event User refuses to lease, sublease, license or sublicense, as
applicable, a Reciprocal Site to BellSouth, for reasons unrelated to User's
capacity, zoning, permits, RF interference (based upon standard and
accepted engineering principles) licenses and other required approvals, or
environmental issues with respect to such Reciprocal Site, BellSouth may
elect to terminate any existing Site Agreement in the same geographic
market as the proposed Reciprocal Site refused by User, effective thirty
(30) days after receipt by User of written notice. Upon termination of any
Site Agreement, such terminated Site Agreement shall be of no further force
and effect and the parties hereto shall be released from all duties,
obligations, liabilities, and responsibilities under the terminated Site
Agreement, except for indemnity obligations, User's obligation to remove
the Facilities from the terminated Site, and User's obligations set forth
in Section 13(h) hereof. In the event User does not remove its Facilities
from the terminated Site as provided in Section 9 or Section 13(h) hereof,
as applicable, BellSouth shall have the right to remove and store User's
Facilities, at User's expense.
21. Condemnation. If the whole of the Property or Site which are
subject of any Site Agreement or so much thereof as to interfere with the use
thereof shall be taken or condemned by any competent authority for any public or
quasi-public use or purpose, such Site Agreement shall terminate as of the date
when possession is taken at the election of either party. In such event,
BellSouth shall be under no liability to User resulting from such condemnation
and User shall be entitled to no part of any condemnation award except so much
thereof as the
23
condemning authority expressly allocates to that portion of the proceeds
directly attributable to the value of User's Facilities on the Tower, its
leasehold interest in the Site, and moving or relocation expenses incurred by
User. BellSouth shall provide User with notice in writing of any actual or
threatened condemnation proceedings promptly after receiving notice thereof.
Upon such termination, the parties to the Site Agreement shall be released from
all duties, obligations, liabilities and responsibilities under the Site
Agreement except for any indemnity obligations, including without limitation,
environmental indemnity and tax obligations, and User's obligation to remove the
Facilities from the Property.
22. Mortgage by BellSouth. This MSA and each Site Agreement is and
shall be subject to a security interest or mortgage which might now or hereafter
constitute a lien upon the Site. This MSA and each Site Agreement is and shall
be subject and subordinate in all respects to any and all such mortgages on the
Site and to all renewals, modifications, consolidations, replacements and
extensions thereof. In the event any proceedings are brought for foreclosure or
in the event of the exercise of the power of sale under any mortgage covering
any Site, the User shall attorn to the purchaser upon any such foreclosure or
sale and recognize such purchaser as the lessor/licensor, as applicable, under
this MSA and the applicable Site Agreement(s); provided that so long as the User
is not in default hereunder, this MSA and the applicable Site Agreement(s) shall
remain in full force and effect, and User's use and occupancy pursuant to this
MSA and applicable Site Agreements shall not be disturbed.
23. Entirety. This MSA and Site Agreement, including all Schedules and
Exhibits hereto and thereto, constitute the entire agreement between BellSouth
and User and any modification to the MSA or Site Agreement, any Schedule or
Exhibits hereto or thereto, must, in order to be effective, be in writing,
signed by authorized representatives of each party.
24. Waiver. Failure or delay on the part of either party to exercise
any right, power, privilege or remedy hereunder shall not operate as a waiver
thereof; nor shall any single or partial exercise of any right under this MSA of
under a Site Agreement preclude any other or further exercise thereof or the
exercise of any other right.
25. Binding Effect. This MSA and the Site Agreements shall extend to
and bind the heirs, personal representatives, successors, permitted assigns, or
its successors in interest of the parties hereto.
26. Governing Law. This MSA and each Site Agreement and performance
hereunder and thereunder shall be governed, interpreted, construed and regulated
by the laws of the state where the Property and Site are located.
27. Notice. All notices hereunder shall be deemed validly given if sent
by certified mail, return receipt requested, or with a nationally recognized
courier which provides notice of receipt, postage fully prepaid, addressed as
follows, or to such other addresses as may be given from either party in writing
to the other:
24
BellSouth: BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Real Estate Manager
with a copy to:
BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
User: Tritel Communications, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxx Xxxxxx
28. Headings. Section headings in this MSA and in each Site Agreement
are included for the convenience of reference only and shall not constitute a
part of this MSA or the Site Agreement for any other purpose.
29. Brokerage. User warrants and represents to BellSouth that it has
not dealt with a real estate agent or broker with respect to this MSA or any
Site Agreement, and shall hold BellSouth harmless against all claims by any real
estate agent or broker claiming a commission hereunder or thereunder on behalf
of User. BellSouth warrants and represents to User that, except for GlobalComm,
Inc., it has not dealt with a real estate agent or broker with respect to this
MSA or any Site Agreement, and shall hold User harmless against all claims by
any real estate agent or broker claiming a commission hereunder or thereunder on
behalf of BellSouth.
30. Memorandum of Lease. At the request of User, BellSouth hereby
agrees to execute a memorandum or short form of lease (a "Memorandum of Lease"),
in form satisfactory for recording, and such Memorandum of Lease may be filed of
record by the User, at User's sole cost, including taxes or assessments incurred
in connection therewith. The parties understand and agree that this MSA and the
Site Agreements shall not be recorded of record. User agrees to prepare, execute
and record, at its expense, a release, within thirty (30) days of expiration or
termination of a Site Agreement. In the event User fails to do so, BellSouth has
a contractual right as User's agent for this limited purpose to prepare, execute
and record such release and User shall reimburse BellSouth, upon demand, for all
expenses, including attorney fees and filing fees, incurred in connection
therewith.
31. Counterparts. This MSA and each Site Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
together shall constitute but one instrument.
32. Authority. Each Party hereby represents and warrants to the other
that all necessary corporate authorizations required for execution and
performance of this MSA and each
25
Site Agreement have been given and that the undersigned officer is duly
authorized to execute this MSA and each Site Agreement and bind the party for
which it signs.
33. Severability. If any term, covenant, condition or provision of this
MSA or the Site Agreement or any application hereof or thereof shall, to any
extent, be invalid or unenforceable, the remainder of this MSA and each Site
Agreement shall not be affected thereby, and shall be valid and enforceable to
the fullest extent permitted by law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
26
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
BELLSOUTH:
----------
BELLSOUTH CAROLINAS PCS, L.P.,
a Delaware limited partnership (SEAL)
By: BellSouth Personal Communications, Inc.,
a Delaware corporation, its general partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------------
Title: Asst. Vice President Real Estate
--------------------------------
Attest: /s/ Xxxx Xxx Xxxx
-------------------------------
Name: Xxxx Xxx Xxxx
---------------------------------
Title: Asst. Secretary
--------------------------------
[AFFIX CORPORATE SEAL]
BELLSOUTH PERSONAL COMMUNICATIONS, INC.,
a Delaware corporation
By: Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------------
Title: Asst. Vice President Real Estate
--------------------------------
Attest: Xxxx Xxx Xxxx
-------------------------------
Name: Xxxx Xxx Xxxx
---------------------------------
Title: Asst. Secretary
--------------------------------
[AFFIX CORPORATE SEAL]
27
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
USER:
-----
TRITEL COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
Executive V.P./Chief Operating Officer
Attest:
-----------------------------------
Name:
-------------------------------------
Title:
------------------------------------
[AFFIX CORPORATE SEAL]
STATE OF GEORGIA )
)
COUNTY OF XXXXXX )
I, a Notary Public for said County and State, do hereby certify that Xxxx Xxx
Xxxx personally appeared before me this day and acknowledged that he/she is
Asst. Secretary of BELLSOUTH PERSONAL COMMUNICATIONS, INC., a Delaware
corporation, individually and as general partner of BELLSOUTH CAROLINAS PCS,
L.P., a Delaware limited partnership, and that by authority and as the act of
the corporation, individually and on behalf of the partnership, the foregoing
instrument was signed in its name by its Assistant Vice President, sealed with
its corporate seal, and attested by him/her as its Asst. Secretary.
----------------------------------
Notary Public, State of GA
My Commission Expires:
------------
[NOTARIAL SEAL]
STATE OF )
)
COUNTY OF )
Personally appeared before me, the undersigned authority in and for the said
county and state, on this 10th of March, 1998 within my jurisdiction, the within
named XXXXX X. XXXXXXXX, XX., who acknowledged that he is EXECUTIVE VICE
PRESIDENT/CHIEF OPERATING OFFICER of TRITEL COMMUNICATIONS, INC., a Delaware
corporation, and that for and on behalf of the said corporation, and as its act
and deed he executed the above and foregoing instrument, after first having been
duly authorized by said corporation so to do.
-----------------------------------
Notary Public
My Commission Expires:
----------------------------------
SCHEDULE "I" TO MASTER SITE AGREEMENT
-------------------------------------
SITE [LEASE/ SUBLEASE/LICENSE/SUBLICENSE] AGREEMENT
---------------------------------------------------
THIS SITE [LEASE/SUBLEASE/LICENSE/SUBLICENSE] AGREEMENT (the "Site
Agreement") is made as of the latter signature date hereof (the "Execution
Date"), by and between , a [CORPORATION] [LIMITED PARTNERSHIP], its successors
and assigns (hereinafter referred to as "BellSouth") and TRITEL COMMUNICATIONS,
INC., a Delaware corporation (hereinafter referred to as "User").
WHEREAS, the parties are party to the Master Site Agreement dated ,
1998 (the "MSA");
WHEREAS, the parties desire that except as set forth in this Site
Agreement, the terms and conditions of the MSA shall govern the relationship of
the parties under this Site Agreement;
WHEREAS, BellSouth [IS THE OWNER OF] [AS LESSEE/LICENSEE,
LEASED/LICENSED FROM (THE "MASTER LANDLORD") PURSUANT TO THAT CERTAIN
LEASE/LICENSE AGREEMENT DATED , 19 (THE "MASTER LEASE/LICENSE")], a copy of
which is attached hereto as Exhibit "A-1", certain real property located in
, , as more particularly described on Exhibit "A" attached hereto
and incorporated herein by reference.
NOW, THEREFORE, for valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
1. MSA and Defined Terms. Unless otherwise defined herein, capitalized
terms shall have the meaning set forth in the MSA. The parties agree that except
as otherwise set forth herein, the terms and conditions of the MSA shall govern
the relationship of the parties under this Site Agreement and the MSA is
incorporated herein by reference. In the event of a conflict or inconsistency
between the terms of the MSA and this Site Agreement, the terms of this Site
Agreement shall govern and control.
2. Demise. BellSouth hereby [LEASES/SUBLEASES/LICENSES/SUBLICENSES] to
User and User hereby [LEASES/SUBLEASES/LICENSES/SUBLICENSES] from BellSouth the
following:
(a) Tower Space. [SUBJECT TO BELLSOUTH OR USER OBTAINING THE CONSENT OF
THE MASTER LANDLORD PURSUANT TO SECTION 5(A) OF THE MSA, IF REQUIRED BY THE
MASTER LEASE/LICENSE, IN BELLSOUTH'S SOLE REASONABLE OPINION,] [T]ower space on
BellSouth's Tower between the ( ) foot and ( ) foot level (the "Tower Space"),
for the placement of User's antenna array, platform, cables, brackets, wires and
accessories, as more particularly described on Exhibit "C" attached hereto and
incorporated herein by reference (the "Tower Facilities"); and
(b) Ground Space. [SUBJECT TO BELLSOUTH HAVING GROUND SPACE ADEQUATE TO
ACCOMMODATE USER'S GROUND FACILITIES, AS HEREINAFTER DEFINED, AND BELLSOUTH OR
USER OBTAINING THE CONSENT OF THE MASTER LANDLORD PURSUANT TO SECTION 5(A) OF
THE MSA, IF REQUIRED BY THE MASTER LEASE/LICENSE, IN BELLSOUTH'S SOLE REASONABLE
OPINION,] [G]round space containing ( ) [ACRES/SQUARE FEET], as approximately
shown on Exhibit "B" attached hereto and incorporated herein by this
Site Number:______ Site Number:______
reference and which will be more specifically shown on the As-Built Survey, as
defined in Section 10 (vii) of the MSA, delivered by User to BellSouth in
accordance with Section 10 (vii) of the MSA and which As-Built Survey shall be
attached to and become a part of this Site Agreement as Exhibit "B" when
initialed by BellSouth and User in accordance with Section 10(vii) of the MSA
(the "Ground Space"), for the placement of equipment shelters and cabinets,
telecommunications equipment within such equipment shelters and cabinets,
concrete pads, cables, wires and accessories, as more particularly described on
Exhibit "C" attached hereto and incorporated herein by reference (the "Ground
Facilities"); together with
(c) Ingress and Egress. Subject to the limitations set forth in Section
11 of the MSA (i) the non-exclusive right to use the Tower, at locations
mutually agreed upon by User and BellSouth, for the term hereof for ingress,
egress, and access to the Tower Space adequate to service the Tower Facilities
and (ii) if the term "Leased Space" as used herein includes Ground Space, a
non-exclusive easement for the term hereof, for ingress, egress, and access to
the Leased Space across [(AA)] the Property in locations mutually agreed upon in
writing by BellSouth and User [AND (BB) ACROSS THE PROPERTY OF THE MASTER
LANDLORD TO THE EXTENT AND IN THE LOCATIONS THE MASTER LANDLORD GRANTED INGRESS,
EGRESS AND ACCESS EASEMENTS TO BELLSOUTH IN THE MASTER LEASE/LICENSE.]
(d) Utilities, Cable Runs. BellSouth hereby grants to User the
non-exclusive right to use the Tower for the term hereof to place any utilities
and cable runs on the Tower, at locations mutually agreed upon in writing by
BellSouth and User, in order to service or operate the Facilities, subject to
BellSouth's prior written approval of the design and installation method and
procedures, such approval not to be unreasonably withheld or delayed. [IF THE
TERM "LEASED SPACE" INCLUDES THE GROUND SPACE, BELLSOUTH HEREBY GRANTS TO USER A
NON-EXCLUSIVE EASEMENT FOR THE TERM HEREOF TO PLACE ANY UTILITIES OR CABLE RUNS
ON OR BRING UTILITIES ACROSS THE PROPERTY AND IF THE PROPERTY IS LEASED OR
LICENSED BY BELLSOUTH, THE PROPERTY OF THE MASTER LANDLORD TO THE EXTENT AND IN
THE LOCATIONS THE MASTER LANDLORD GRANTED UTILITY AND CABLE RUN EASEMENTS].
3. Term/Site Commencement Date. Provided [THE APPLICABLE CONTINGENCIES
SET FORTH IN SECTION 5 OF THE MSA HAVE BEEN SATISFIED,] User has paid BellSouth
any required application fee, and the Site Cost Reimbursement Amount of Dollars
($ ), this Site Agreement term shall begin on the earlier to occur of (i) the
date when User commences the installation of its Facilities on the Tower or (ii)
forty-five (45) days from the Execution Date, unless further extended by the
mutual written agreement of BellSouth and User [NOTE: IF SPECIFIC DATE IS TO BE
INSERTED AS COMMENCEMENT DATE, REPLACE (II) WITH: "(II) THE DAY OF
, ."] (the "Site Commencement Date"), and shall continue until the
earlier to occur of (i) midnight of the tenth (10th) anniversary of the Site
Commencement Date or (ii) the expiration or termination of the Master
Lease/License (the "Initial Term"). Within five (5) business days of User's
commencement of the installation of its Facilities on the Leased Space, User
shall provide BellSouth written notice of the date User commenced installation
of its Facilities on the Leased Space in the form of Exhibit "E" attached
hereto. Provided [THE MASTER LEASE/LICENSE REMAINS IN EFFECT AND HAS NOT EXPIRED
OR BEEN TERMINATED, AND] User is not in default, User shall have the option of
extending this Site Agreement for three (3) additional five (5) year terms (the
"Renewal Terms"). Such renewal options shall be deemed automatically exercised
without notice by User to BellSouth unless User gives BellSouth written notice
of its intention not to exercise any such option at least ninety (90) days prior
to the expiration of the then current term, in which case, the term of the Site
Agreement shall expire at the end of the then current term.
Site Number:______ Site Number:______
2
4. Rent/Renewal Terms. In addition to any required application fee and
the Site Cost Reimbursement Amount, which shall be paid by User to BellSouth in
accordance with the MSA, during the first five (5) years of the Initial Term,
User shall pay annual rent of and No/100 Dollars ($ ) in accordance with the
MSA. The first annual installment of base rent is due and payable not later than
the Site Commencement Date. For the sixth through tenth year of the Initial
Term, the annual rent shall be increased by [CONFIDENTIAL TREATMENT REQUESTED]
over the annual rent for the first five (5) years of the Initial Term. Upon the
commencement of each Renewal Term, the annual rent shall be further increased by
[CONFIDENTIAL TREATMENT REQUESTED] over the annual rent then payable for the
immediately preceding term. Unless otherwise directed in writing by BellSouth,
User shall forward all rental and other payments required hereunder to:
BellSouth Personal Communications, Inc.
Attention: Treasury/Accounting Department
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxx 000
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Recurring Invoice No.
5. Additional Rent. In addition to the rent set forth in Section 4
hereof, User hereby agrees to pay additional rent to BellSouth for any
additional equipment added to BellSouth's Tower after the installation of the
Tower Facilities set forth in Exhibit "C" hereto. Additional rent shall be
calculated based on a rental amount for each piece of additional equipment. Such
rental amounts are set forth below:
Equipment Rental Amount
$
------------------- -----------
$
------------------- -----------
$
------------------- -----------
$
------------------- -----------
6. Hazardous Substances. [BELLSOUTH IS NOT AWARE OF, AND HAS NOT
RECEIVED NOTICE OF, THE DISPOSAL, RELEASE OR PRESENCE OF HAZARDOUS SUBSTANCES ON
THE PROPERTY IN VIOLATION OF ANY FEDERAL, STATE OR LOCAL LAW, REGULATION OR
ORDER.]
[7. NATIONAL ENVIRONMENTAL POLICY ACT COMPLIANCE. ADD PROVISION IF
BELLSOUTH HAS NOT COMPLIED OR IS IN THE PROCESS OF COMPLYING WITH NFPA.]
[8/9]. Notice. All notices hereunder shall be deemed validly given if
sent by certified mail, return receipt requested, or with a nationally
recognized courier which provides notice of receipt, postage fully prepaid,
addressed as follows, or to such other addresses as may be given from either
party in writing to the other:
Site Number:______ Site Number:______
3
BellSouth: [BELLSOUTH CAROLINAS PCS, L.P.]
[C/O]BellSouth, Personal Communications, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X., 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Real Estate Manager
with a copy to:
[BELLSOUTH CAROLINAS PCS, L.P.]
[C/O]BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
User: Tritel Communications, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
with a copy to:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
Site Number:______ Site Number:______
4
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
signature date set forth below.
User:
TRITEL CORPORATION, INC.
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[AFFIX CORPORATE SEAL]
Signature Date:
----------------------------
STATE OF )
)
COUNTY)
I, a Notary Public for said County and State, do hereby certify that
personally appeared before me this day and acknowledged that he/she is Secretary
of Tritel Communications, Inc., a Delaware corporation, and that by authority
and as the act of the corporation the foregoing instrument was signed in its
name by its President, sealed with its corporate seal, and attested by him/her
as its _______________ Secretary.
----------------------------------
Notary Public, State of___________
My Commission Expires:____________
[NOTARIAL SEAL]
Site Number:______ Site Number:______
5
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
signature date set forth below.
BELLSOUTH:
[NAME OF CORPORATION OR LIMITED PARTNERSHIP
HAVING THE FCC LICENSE]
[ , LIMITED PARTNERSHIP,]
BY: [NAME OF CORPORATE GENERAL PARTNER],
ITS GENERAL PARTNER
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Attest:
-----------------------------------
Name:
-------------------------------------
Title:
------------------------------------
[AFFIX CORPORATE SEAL]
Signature Date:
---------------------------
STATE OF________________________ )
)
COUNTY )
I, a Notary Public for said County and State, do hereby certify that
personally appeared before me this day and acknowledged that he/she is Secretary
of a and general partner of , a , and that by authority and as the act of the
corporation and on 0behalf of the partnership, the foregoing instrument was
signed in its name by its President, sealed with its corporate seal, and
attested by him/her as its Secretary.
-----------------------------------
Notary Public, State of
-----------
My Commission Expires:
------------
[NOTARIAL SEAL]
Site Number:______ Site Number:______
6
EXHIBIT "A"
-----------
Site Description
----------------
Site Name: MSA/RSA/MTA/BTA:
------------------ ----------------------
Site Number: Site Address:
------------------ ----------------------0
Latitude:
------------------
Longitude:
------------------
Legal Description of Property:
------------------------------
Legal Description of Access Easement:
-------------------------------------
Legal Description of Utility Easement:
--------------------------------------
Site Number:______ Site Number:______
7
EXHIBIT "A-1"
-------------
MASTER LEASE/LICENSE AGREEMENT
(Subject to redaction)
Site Number:______ Site Number:______
8
EXHIBIT "B"
-----------
User's Ground Space
Site Number:______ Site Number:______
9
EXHIBIT "C"
-----------
User's Tower Facilities and Ground Facilities
[Attach User's Co-Location Application]
Site Number:______ Site Number:______
10
EXHIBIT "D"
Certification as to Ground Lease
[Date]
[BellSouth's or User's Name]
[BellSouth's or User's Address]
RE: Site Agreement from [BELLSOUTH'S OR USER'S NAME] to [BELLSOUTH OR
USER] at______________ ,________________
Dear
Pursuant to the above referenced lease (the "Lease"), User hereby
certifies unto BellSouth that User has obtained from the Master Landlord, as
defined in the Site Agreement, a lease of a portion of the Master Landlord's
property, as more particularly described in Section 3(a)(ii) of the Site
Agreement, for ground space to accommodate [USER'S] Ground Facilities together
with easements for access, utilities and cables.
Sincerely,
[BellSouth or User]
Site Number:______ Site Number:______
11
EXHIBIT "E"
Notice of Installation of User's Facilities
[Date]
[BellSouth's Name]
[BellSouth's Address]
RE: Site Agreement from BellSouth to [USER] at
Dear
Pursuant to Section of the above-referenced , this letter serves to
advise you that [USER] commenced the installation of its Facilities on the
Leased Space on the above-referenced property on , 19 , which date shall be the
Commencement Date, as defined in the above referenced Site Agreement.
Sincerely,
[User]
Site Number:______ Site Number:______
12
SCHEDULE "II" TO MASTER SITE AGREEMENT
ENTRY AND TESTING AGREEMENT
This Entry and Testing Agreement ("Agreement") is made as of the day of
, 1998, between BELLSOUTH PERSONAL COMMUNICATIONS, INC., a Delaware corporation,
d/b/a BellSouth Mobility DCS ("BellSouth"), and TRITEL COMMUNICATIONS, INC., a
Delaware corporation ("Entrant"), concerning the following described property
[leased] [owned] by BellSouth ("Property"): [insert site address]
BellSouth currently owns and operates a communications tower (the
"Tower") on the Property. BellSouth and Entrant are in the process of
negotiating an agreement whereby Entrant will lease, sublease or license certain
portions of the Tower and the Property. In order for Entrant to determine the
viability and feasibility of the Property as a tower or antenna site, Entrant
desires to enter upon and inspect the Property and/or to locate temporarily
communications equipment on the Property to conduct short term radio propagation
tests; and
As an accommodation to Entrant, BellSouth is willing to grant
permission to Entrant, its employees, agents or contractors to enter upon the
Property solely to conduct such investigations, under the terms and conditions
stated herein. In consideration of the mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows.
1. BellSouth grants to Entrant, its contractors, agents, employees and
assigns a right of entry and license to enter upon the Property solely to
conduct and perform boundary surveys, Phase I environmental studies, and radio
propagation tests (the "Permitted Activities"). Entrant's entry rights are
specifically limited to the Permitted Activities and to the Property and shall
not include any other activities, including without limitation any construction
activities, on the Property or any other portion of the property surrounding the
Property. Entrant shall be responsible for any and all costs related to the
Permitted Activities, including any temporary installation, operation and
removal of equipment on the Property and the Tower. Any entry or activity on the
Tower by Entrant shall be coordinated in advance with BellSouth and shall be
subject to BellSouth's approval and supervision, at Entrant's cost.
2. Entrant agrees to comply with all local, state and federal laws,
rules and ordinances applicable to the Permitted Activities. Entrant further
agrees to exercise due care in the performance of all Permitted Activities on
the Property, and not to interfere with BellSouth's or any other party's
activities on the Property. Entrant shall promptly repair, at its cost, any
damage to the Property, the Tower, or any other property caused by the acts or
omissions of Entrant, its agents, employees, contractors or subcontractors.
3. Entrant shall indemnify and hold harmless BellSouth, its employees,
agents or contractors, from all claims, actions, damages, liability and expense,
including without limitation attorneys' fees and costs, in connection with
personal injury or property damage arising out of the acts or omissions of
Entrant, its employees, agents or contractors, including without limitation the
Permitted
Activities, upon the Property, the Tower, or any other portion of the property
surrounding the Property. This indemnification shall survive the expiration or
termination of this Agreement.
4. Entrant shall maintain, and shall have its contractors and
subcontractors maintain, adequate insurance coverage, as determined by
BellSouth. At BellSouth's request, Entrant agrees to provide certificates of
insurance evidencing such insurance coverage of Entrant, its contractors, or
subcontractors.
5. The term of this Agreement shall be from the Execution Date to the
earlier of (i) forty-five (45) days from the Execution Date or (ii) until
BellSouth and Entrant enter into a lease, sublease or license with respect to
the Property; provided, however, that BellSouth may immediately terminate this
Agreement in the event Entrant breaches any term of this Agreement.
6. In the event this Agreement expires or is terminated without the
existence of a fully executed lease, sublease or license, Entrant will
immediately remove any and all of its equipment from the Property and restore
the Property to its condition existing immediately prior to such entry.
7. This Agreement constitutes the entire understanding between the
parties with respect to the activities contemplated by this Agreement. All prior
agreements or understandings, whether oral or written, are superseded. This
Agreement may be amended only by a written document duly executed by the
parties. This Agreement is governed by the laws of the State wherein the
Property is located.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals as of the date first above written.
BELLSOUTH:
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a
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By:
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Print Name:
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Title:
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ENTRANT:
TRITEL COMMUNICATIONS, INC.
a Delaware corporation
By:
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Print Name:
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Title:
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