EXHIBIT 10.22
MASTER SITE AGREEMENT
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THIS MASTER SITE AGREEMENT (hereinafter referred to as this "MSA"), is made
as of the 15th day of March , 1998 (the "MSA Commencement Date"), by and
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between BELLSOUTH CAROLINAS PCS, L.P., a Delaware limited partnership, BELLSOUTH
PERSONAL COMMUNICATIONS, INC., a Delaware corporation, each doing business as
BELLSOUTH MOBILITY DCS, and their respective BellSouth Affiliates, successors
and assigns (hereinafter collectively referred to as "BellSouth") and, TRITON
PCS PROPERTY COMPANY L.L.C., a Delaware limited liability company, and its
successors and permitted assigns (hereinafter referred to as the "User").
WHEREAS, BellSouth is the owner of communications towers located on
property either owned, leased or licensed by BellSouth (individually, a "Tower",
collectively, "Towers");
WHEREAS, User is a provider of certain wireless digital communications
services in the United States as such services are more particularly defined in
Section 3 hereinbelow ("User's Wireless Business");
WHEREAS, BellSouth and User desire to enter into this MSA which will
establish the general terms and conditions whereby User will lease, sublease,
license or sublicense, as applicable, from BellSouth space on one or more of
BellSouth's Towers and ground space on BellSouth's land (real property owned,
leased or licensed by BellSouth with respect to each Site (as defined below)
hereinafter the "Property") for the construction of an equipment shelter or
cabinet(s) for the placement of User's communications equipment for operation of
User's Wireless Business;
WHEREAS, BellSouth and User will enter into a Site Agreement in form and
substance substantially similar to Schedule "I" attached hereto and by reference
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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
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all Sites, as defined below, shall be leased, subleased, licensed or sublicensed
to User. From time to time during the term hereof, User and BellSouth may
execute Site Agreements in the form attached hereto as Schedule "I" and by
reference made a part hereof. Each Site Agreement shall identify a particular
Site made subject to this MSA and more fully set forth specific terms particular
to that Site. In the event of a conflict or inconsistency between the terms of
this MSA and a Site Agreement, the terms of the Site Agreement shall govern and
control for that Site.
2. Demise. Subject to the following terms and conditions, BellSouth
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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 "All 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
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Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
written notice from User of such desire to add a Site to this MSA, BellSouth
shall provide User with a Site Application to be completed by User. Upon receipt
by BellSouth of the completed Site Application, together with any application
fee required by BellSouth, BellSouth shall evaluate the feasibility of
utilization of each Site requested by User to be added to this MSA. Except in
extraordinary circumstances, as determined by BellSouth in its discretion, the
application fee generally will not exceed ***** per Site. 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 User's exclusive
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rights to portions of the applicable Tower (which shall not prevent cabling or
access by BellSouth or third parties across User's space on the Tower) under 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
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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 nondisclosure provisions contained
therein. If applicable, BellSouth agrees to provide User with copies of all
amendments to, extensions of and renewal notices given pursuant to the Master
Lease/License, subject to redaction of the financial terms set forth therein or
as otherwise required by confidentiality and non-disclosure provisions contained
therein. BellSouth represents to User that as of the Execution Date of a Site
Agreement neither BellSouth nor BellSouth's Landlord ("Master Landlord") is in
default under the Master Lease/License, or to the best of BellSouth's knowledge
with the passage of time will be in default under the Master Lease/License.
5. Conditions Precedent.
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(a) Conditions Precedent Based On Consent of Master Landlord. If
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BellSouth is party to a Master Lease/License for a Site, the Site Agreement for
such Site shall be contingent upon BellSouth and/or User, as applicable, being
able to satisfy one (1) of the following conditions precedent within thirty (30)
days of the Execution Date of the Site Agreement, if required by the Master
Lease/License, in BellSouth's sole reasonable opinion.
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***** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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(i) Notice to Master Landlord of [Sublease/License]. If notice
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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
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Space and Ground Space. BellSouth or User, at BellSouth's option, will obtain
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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 A License of Tower
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Space and Master Landlord Leasing Ground Space to User. BellSouth or User, at
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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.
If BellSouth or User is able to obtain the written consent of Master
Landlord to BellSouth's lease to User of Tower Space (but not to BellSouth's
sublease, license or sublicense to User of the Ground Space) and BellSouth or
User is able to obtain a ground lease from the Master Landlord pursuant to
Section 5(a)(iii) hereof, (aa) BellSouth or User shall deliver to the other a
copy of such written consent, (bb) User shall deliver to BellSouth a copy of the
certification as to the ground lease or license from the Master Landlord to User
in substantially the form of Exhibit D attached to the Site Agreement, (cc) the
condition precedent set forth in Section 5(a)(ii) hereof shall not have been
satisfied but the condition precedent set forth in Section 5(a)(iii) hereof
shall be deemed satisfied, and (dd) the term "Leased Space" as used in the Site
Agreement shall mean Tower Space only and the term "Facilities" as used in the
Site Agreement shall mean Tower Facilities only. If BellSouth elects to obtain
the ground lease described in Section 5(a)(iii), then such ground lease shall be
subject to User's prior approval and User shall be responsible for the payment
of BellSouth's reasonable, documented costs in obtaining the ground lease and of
all rents and other sums due under the ground lease, as and when such sums are
due and payable.
If BellSouth or User is unable to satisfy the condition set forth in
Section 5(a)(ii) or BellSouth or User is unable to satisfy the conditions set
forth in Section 5(a)(iii) within thirty (30) days of the Execution Date of the
Site Agreement, the Site Agreement shall automatically terminate and become null
and void, unless extended in writing by mutual consent of BellSouth and User.
Upon such termination, neither BellSouth nor User shall have any obligations to
the other except for any indemnity obligations,
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including without limitation, environmental indemnity and tax obligations,
arising prior to the date of termination.
(b) Conditions Precedent to Site Commencement Date. Each Site
Agreement is further contingent upon User being able to satisfy the following
conditions prior to the Site Commencement Date, as defined in the Site
Agreement:
(i) Approvals. User obtaining, after the Execution Date of the
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Site Agreement, all certificates, permits, licenses and other approvals
including zoning approvals that may be required by any federal, state or local
authorities (the "Approvals") to permit User's intended use of the Leased Space.
User covenants to use its best efforts to obtain all such Approvals. 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
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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,
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reasonable discretion, that (aa) telephone and electric utilities are available
at the Leased Space or Tower of sufficient capacity to accommodate User's
Facilities and (bb) ingress and egress is available to and from the Leased Space
and to and from a publicly dedicated road.
(iv) Tower Capacity. User determining in User's sole,
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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
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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
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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 in this Agreement and User's obligation to remove its
Facilities from the Property.
(vii) Site Cost Reimbursement Amount. User shall pay a one-time
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site cost reimbursement amount ("Site Cost Reimbursement Amount") to BellSouth,
paid by User to BellSouth with the execution and delivery of the Site Agreement
with respect to such Site. Except in certain circumstances, as set out herein,
the Site Cost Reimbursement Amount generally will not exceed ***** per Site.
BellSouth and User acknowledge and agree that the Site Cost Reimbursement Amount
reflects an equitable sharing of the capital costs incurred by BellSouth
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***** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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with respect to the construction of the Tower and the ability of User to locate
its Facilities thereon. Consequently, the Site Cost Reimbursement Amount is
independent of and in addition to, and not in substitution or reduction of, all
or any part of the Base Rent specified in such Site Agreement, or the fair
market value of the rent applicable to such Site. The preceding notwithstanding,
in the event that User has not on or before December 31, 1998 (i) executed and
returned fifty (50) or more Site Agreements, (ii)paid any applicable Site Cost
Reimbursement Amount for said fifty (50) or more Sites, (iii) paid the Site
Application fee for said fifty (50) or more Sites, and (iv) paid the first
annual installment of base rent on said fifty (50) or more Sites, BellSouth may
look back to all existing Sites and charge User an additional Site Cost
Reimbursement Amount of ***** per Site. Beginning January 1, 1999, the Site Cost
Reimbursement Amount for each new Site shall be based upon the amount of the
Site Cost Reimbursement Amount referenced above on the December 31, 1998
deadline. In the event User has submitted less than fifty (50) Site
Applications, together with related fees, by December 31, 1998, the Site Cost
Reimbursement Amount shall remain at ***** until User has submitted fifty (50)
or more Site Applications, together with necessary fees, at which point future
Site Cost Reimbursement Amounts shall be *****. In the event User has submitted
fifty (50) or more Site Applications, together with related fees, by December
31, 1998, the Site Cost Reimbursement Amount shall remain at *****. In the event
that User finds it necessary to structurally enhance or otherwise upgrade the
Tower prior to locating on the Tower, any such enhancement or upgrades shall be
subject to BellSouth's prior written approval and the costs which User incurs in
performing said upgrade shall be applied and credited to the Site Cost
Reimbursement Amount for that particular Site.
6. Term.
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(a) MSA Term. The MSA term shall begin on the MSA Commencement Date
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and shall continue until midnight of the tenth (10th) anniversary of the MSA
Commencement Date, unless terminated earlier in accordance with the terms hereof
(the "Term").
(b) Site Agreement Term and Renewal. The initial term of each Site
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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.
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(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
the Site Agreement in advance on or before the delivery of the fully executed
Site Agreement and then on each anniversary date of the Site Commencement Date.
Rent shall be payable by check, and checks shall be made payable to the order of
the BellSouth entity specified in the applicable Site Agreement and shall be
mailed to the address designated in the applicable Site Agreement. In the event
that the Site Agreement is terminated for a reason other than a default by User,
then BellSouth shall reimburse User the pro rata amount of the annual rent
attributable to the Site where the Site Agreement is terminated based on the
balance of the year remaining on the day the Site Agreement is terminated, so
long as User is not in default under this Agreement. In the event that the
initial base rent is paid by User but the Site Agreement does not commence
because of a failure of a condition precedent described in Section 5 or such
other reason as described herein, through no fault of User, BellSouth shall
refund the initial annual payment of base rent.
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***** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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(b) Taxes.
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(i) Property Taxes. User shall be responsible for the
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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,
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collecting, reporting, and remitting sales taxes directly related to rent
payments received pursuant to this MSA and any Site Agreement, if any. User
shall be responsible for reimbursing BellSouth for all sales taxes billed
related to rent payments received pursuant to this MSA and any Site Agreement,
such reimbursement to be due and payable within thirty (30) days of BellSouth's
delivery to User of a written invoice and copies of paid tax receipts specifying
the payments made by BellSouth.
(c) Site Agreement Renewal Terms. If and when one or more of the
Site Agreement Renewal Terms (as defined in the applicable Site Agreement) are
exercised by the User, upon the commencement of each Renewal Term, the annual
rent for each Renewal Term shall increase by the percent set forth in such Site
Agreement over the annual rent for the immediately preceding term.
(d) Additional Facilities. If, after the installation of the
Facilities, User, with the prior written approval of BellSouth as required by
Section 10 hereof, modifies the Facilities by adding additional equipment to the
Tower which materially increases the size or structural or windload on the Tower
or is in a different location on the Tower than the Facilities such that
additional rent is payable pursuant to Section 10 (vi) hereof, BellSouth and
User acknowledge that the rent for the Site shall be increased by an amount set
forth in the Site Agreement for each piece of additional equipment. If the Site
Agreement is silent on rent for additional equipment, BellSouth and User
acknowledge that the rent for the Site shall be increased by a mutually agreed
upon amount. In the event BellSouth and User cannot agree upon the increased
rent, the increase in rent shall be the fair market rental value for the
additional equipment placed on the Tower, which shall be determined by BellSouth
and User each designating, within five (5) days of the dispute, an independent
NMI 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
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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
(such tower and ground space collectively referred to as a "Reciprocal Site")
and shall be evidenced by a site agreement and master site agreement, in
substantially the same form as the Site Agreement for BellSouth's Tower and
Property and this MSA. In the event User refuses to lease, sublease, license or
sublicense, as applicable, a Reciprocal Site to BellSouth, for reasons unrelated
to User's capacity, zoning, permits, licenses and other required approvals, or
environmental issues with respect to such Reciprocal Site, BellSouth may elect
to terminate any existing Site Agreement with respect to a Site in the same
geographic market as the proposed Reciprocal Site refused by User in accordance
with the provisions set forth in Section 20(b) hereof.
9. Relocation of Facilities.
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(a) With respect to any Site, BellSouth reserves the right to change
the location of User's Facilities upon sixty (60) days written notice to User to
accommodate the communications
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equipment (including a change in frequency) of BellSouth. User shall relocate or
remove the Facilities, at BellSouth's expense, within sixty (60) days of receipt
of any such notice by User; provided, however, if the relocated space is
unacceptable to User, in User's sole discretion, User shall have the right to
terminate the Site Agreement upon written notice to BellSouth, which termination
shall be effective the earlier of (i) the date set forth in User's termination
notice, or (ii) two hundred forty (240) days from User's receipt of BellSouth's
relocation notice. Upon such termination, the parties to the Site Agreement
shall be released from all duties, obligations, liabilities and responsibilities
under the Site Agreement except for any indemnity obligations, including without
limitation, environmental indemnity and tax obligations, and User's obligation
to remove the Facilities from the Property. In the event BellSouth needs
additional capacity at a Site for its equipment and there is no space on the
Tower in which to relocate User's Facilities, upon two hundred and forty (240)
days notice, BellSouth may terminate a Site Agreement, and thereafter the Site
Agreement shall be of no further force and effect, and except for any indemnity
obligations, including without limitation, environmental indemnity and tax
obligations, and User's obligation to remove the Facilities from the Property,
and BellSouth's obligation to reimburse User for the book value (to be
determined at the date of termination of the Site Agreement) of any structural
enhancements made by User to such Site, the parties hereto shall be released
from all duties, obligations, liabilities and responsibilities under the Site
Agreement.
(b) In the event of a termination under this Section 9 within the
Initial Term of the terminated Site Agreement, BellSouth shall also reimburse
User a prorata portion of the Site Cost Reimbursement Amount applicable to such
Site Agreement based on a five-year proration of the full Site Cost
Reimbursement Amount. The amount reimbursed by BellSouth shall be equal to the
prorata portion of the Site Cost Reimbursement Amount from the date of
termination to the expiration of the Initial Term. BellSouth shall deliver such
reimbursement to User within thirty (30) days of the termination date of the
Site Agreement.
10. Installation- Modification and Relocation.
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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. 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
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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
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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 not exceed the load capacity of the Tower.
The Tower analysis shall be based on all Facilities listed on Exhibit "C"
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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
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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
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shall submit to BellSouth all plans and specifications for structurally
enhancing the Tower, the proposed architect, engineer and/or contractor involved
in the structural enhancement, and a structural analysis demonstrating that the
Tower, as structurally enhanced, will accommodate all equipment located on the
Tower at the time of the structural enhancement and the proposed installation,
modification, or relocation of User's Tower Facilities, as the case may be, all
of which shall be approved by BellSouth, which approval shall not be
unreasonably withheld, conditioned or delayed.
(2) Payment of Costs. User shall pay all costs incurred in
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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
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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
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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
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replacement of the Facilities on the Site and structural enhancement of the
Tower, if any, shall be in compliance with all applicable laws, regulations and
requirements of any federal, state or local authority, including without
limitation, OSHA work practice standards for performing said work. BellSouth, at
no cost to BellSouth, agrees to cooperate with User to obtain such compliance.
(v) Availability of Space. With regard to the relocation of the
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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,
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in an amount determined in accordance with the provisions of Section 7(d)
hereof.
(vii) Plans and Specifications; Contractor. User shall submit to
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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,
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conditioned or delayed. Following the completion of any installation,
modification or relocation, User shall provide to BellSouth, at User's expense,
updated, as-built drawings, initialed by User, documenting all installed
Facilities on the Site and conforming to the plans and specifications, site
plan, and any other construction documents approved by BellSouth. The as-built
drawings shall include an as-built survey locating the Site to a monument or the
Tower (the "As-Built Survey"). Upon receipt and provided the As-Built Survey
conforms to the plans and specifications, site plan and any other construction
documents approved by BellSouth, BellSouth shall initial the As-Built Survey.
(viii) 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. User may collaterally assign this
Agreement to its lender so long as (i) User is not in default under this
Agreement, (ii) the lender agrees to attom to and assume this Agreement in the
event that it takes possession of the sites, (iii) such assignment shall not
attach or affect, in any manner, BellSouth's or the Master Landlord's right,
title or interest in or to all or any part of the Tower or the Property, and
(iv) User shall remain liable under this Agreement.
(ix) Pre-construction Meeting; Other Construction Meetings.
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Prior tocommencing any installation and/or construction, a duly authorized
representative of User shall meet with a duly authorized representative of
BellSouth at the Tower site to mutually approve the construction methods and
procedures, such approval not to be unreasonably withheld, conditioned or
delayed by either party. BellSouth and User agree to cooperate with one another
in scheduling such pre-construction meeting. In addition, BellSouth and User
will meet during and upon substantial completion of construction to mutually
approve grounding and punch-list items, respectively, and BellSouth and User
agree to cooperate with one another in scheduling such meetings.
11. Ingress and Egress.
-------------------
(a) Upon the Execution Date of a Site Agreement, BellSouth hereby
grants to User, 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 ten-n 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.
9
(b) Prior to the Execution Date of a Site Agreement, User may have
access to a Property and the Tower situated thereon only upon the execution and
delivery by BellSouth and User of an entry and testing agreement in form and
substance substantially similar to Schedule "II" attached hereto and by
reference made a part hereof (an "Entry and Testing Agreement") which will
establish the terms under which User may access the Property and Tower for the
"Permitted Activities," as defined in the applicable Entry and Testing
Agreement.
12. Utilities, Cable Runs. Upon execution of a Site Agreement, BellSouth
---------------------
hereby grants to User the non-exclusive right to use the Tower for the term
hereof to place any cable runs on the Tower, at locations mutually agreed upon
in writing by BellSouth and User, in order to service or operate the Facilities,
subject to BellSouth's prior written approval of the design and installation
method and procedures, such approval not to be unreasonably withheld,
conditioned or delayed. If the term "Leased Space" as used in the Site Agreement
includes the Ground Space, upon execution of the Site Agreement, BellSouth
hereby grants to User a non-exclusive easement for the term hereof to place any
utilities or cable runs on or bring utilities across the Property and if the
Property is leased or licensed by BellSouth, the property of the Master Landlord
to the extent and in the locations the Master Landlord granted utility and cable
run easements. User shall pay the cost of all utility service necessary to
install, maintain and operate the Facilities. Where practicable, User shall
install a separate meter for User's use. If installation of a meter is not
practicable, the parties shall prorate such charges based on approximate actual
use within thirty (30) days of receipt by BellSouth of any invoice from an
applicable utility company. User shall obtain and pay the cost of telephone
connections. Installation of telephone service shall be in compliance with the
procedures for installation and maintenance of Facilities set forth herein.
13. User's Covenants. User covenants that from the Execution Date of a
----------------
Site Agreement, that the Facilities, and all installation, operation,
modification, relocation and maintenance associated therewith, will:
(a) In no way damage BellSouth's Tower, Property, any other structure
or accessories thereto, any Prior User's, as defined below, equipment or
facilities or any Subsequent User's, as defined below, equipment or facilities,
normal wear and tear excepted. If damage, other than normal wear and tear,
occurs and such damage is caused by User, or User's employees, agents,
contractors, or subcontractors, then User shall be liable for repair or
reimbursement of repair for said damages;
(b) Not interfere with BellSouth's operation on the Tower or the
operations of any Prior User (as defined herein). For purposes hereof, a "Prior
User" shall mean any other user of the Tower that has submitted to BellSouth a
site application in good faith prior to the submission of User's Site
Application for such Tower, which site application serves as the basis for a
written agreement for the use of the Tower by such user. In the event BellSouth
determines, in its sole discretion based on standard and accepted engineering
practices, that User's Facilities are interfering with the operation of
BellSouth's or a Prior User's equipment, authorized frequency spectrum or signal
strength, User shall, within forty-eight (48) hours of notification, take all
steps necessary to eliminate the interference, with the exception of ceasing
User's operations. If User cannot eliminate or resolve such interference within
the forty-eight (48) hour period, BellSouth shall have the right to require that
User turn off its Facilities and only turn on its Facilities during off-peak
hours specified by BellSouth in order to test whether such interference
continues or it has been satisfactorily eliminated. In the event that User is
unable to resolve or eliminate, to the satisfaction of BellSouth, such
interference within thirty (30) days from the initial notification of such
interference, User will immediately remove or cease operations of the
objectionable Facilities and BellSouth shall have the right to terminate the
applicable Site Agreement. User shall not on any Site interfere with BellSouth's
use of the Site, the provision of services to BellSouth's customers,
10
or the use of the Site by other Prior Users. Such interference shall be deemed
a material breach of the Site
(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;
(f) Comply with all applicable rules and regulations of the Federal
Communications Commission ("FCC") and all federal, state and local laws
governing use of the Facilities on the Site;
(g) Comply with all applicable laws and ordinances and promptly
discharge or bond off any lien for labor or material within thirty (30) days of
filing same;
(h) Within thirty (30) days after the expiration or termination of a
Site Agreement, remove all Facilities from the Property and restore the Tower
and the Site to its original condition, normal wear and tear excepted. In the
event User has not removed the Facilities at the time of expiration or
termination of the Site Agreement, User shall pay rent at the then existing
monthly rate or on the existing monthly pro-rata basis if based upon a longer
payment term until such time as the removal of the Facilities is completed. In
the event User does not remove its Facilities within thirty (30) days after the
expiration or termination of the Site Agreement, BellSouth shall have the right
to remove and store the Facilities, at User's sole expense, and User shall
reimburse BellSouth for such expenses upon demand. If BellSouth removes the
Facilities, BellSouth shall not be responsible for any damage to the Facilities
during the removal and storage thereof unless caused by the gross negligence of
BellSouth. Notwithstanding the foregoing, except as may be required under any
lease or license agreement pursuant to which BellSouth has rights in and to the
Property, User shall not be required to remove any concrete pads upon which
User's equipment shelters or cabinets may have been located upon the expiration
or termination of a Site Agreement;
(i) Upon the completion of the initial installation of the Facilities
on the Site, within thirty (30)days of the completion of the relocation of the
Facilities or installation of additional Facilities on the Site and, for any
year in which User has performed a site audit on the Site or the Facilities or
User's operations at the Site have changed or been modified, by December I 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 hardness 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);
11
(j) Be coordinated through BellSouth and User shall cooperate with
BellSouth.
(k) It is recognized that certain construction, such as the erection
of an antenna support structure, can have an effect on a given AM Signal Array
within certain parameters. This issue is addressed in Part 22 of the FCC Rules
and Regulations. A statement of this policy regarding structures erected or
modified by Commission Licensees in the vicinity of broadcast AM Stations is
found in the FCC Report No. CL-90-40, "Re-Publication of Standard Broadcast Re-
Radiation and Tower Construction Authorized Under Part 22 of the Rules." This
policy states that "Licensees and Permitees planning to construct or modify a
tower within 2 miles of a directional AM array or within .5 miles of a non-
directional AM tower should take certain precautions..." to protect the array of
said AM Station(s).
BellSouth has constructed its Towers in compliance with the rules and
regulations of the FCC. By User's collocation on any BellSouth Tower, User
accepts full responsibility (including financial responsibility) to take any and
all measures to comply with the FCC mandate as it pertains to modifications of
existing towers. After this mandate has been satisfied, all documentation to
substantiate compliance will be forwarded to BellSouth for records maintenance.
In the event that the applicable Tower at any Site was fitted with a
detuning apparatus to protect the array of a given AM Station, User will be
responsible for following the procedure set forth below to ensure that the Tower
remains in compliance:
Prior to actual collocation on the existing BellSouth Tower, a
certified letter will be sent from User to the AM station(s) in question
advising said station(s) of the intent to collocate on the BellSouth
existing Tower. This document will reference that BellSouth has detuned
the structure with the installation of a detuning apparatus; furthermore,
the Tower will not be increasing in electrical height and therefore this
collocation will cause no further perturbation to the AM Signal. A copy of
this letter will be furnished to BellSouth for record purposes. After the
collocation has been completed, User will ensure the proper working
condition of the detuning apparatus by retaining the appropriate BellSouth
detuning consultant to take proximity measurements of the Tower to adjust
said apparatus to include the new antenna. This course of action is
necessary because the detuning apparatus will need to be rendered inert
during the actual installation of any additional antennas to the structure.
Any costs involved in following this procedure will be the responsibility
of User.
If, due to User's collocation, it becomes necessary to modify the actual
height of the Tower, it will be the responsibility of User to retain a detuning
consultant and perform a partial proof of performance report and/or
install/modify detuning apparatus to ensure the integrity of a given AM Signal.
14. BellSouth's Covenants. BellSouth covenants that during the term of a
Site Agreement it shall:
(a) Maintain the Tower and surrounding area in a safe condition;
(b) Except as otherwise set forth in this MSA, take no action which
would adversely affect the User's proposed use of the Site;
(c) Upon User's payment of rent and performance of its covenants, but
subject to the terms of any Master Lease/License pursuant to which BellSouth has
rights in and to the Property, and
12
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 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 necessary to require that the Subsequent User turn off its
facilities and only turn on its facilities during off-peak hours specified by
BellSouth in order to test whether such interference continues or it has been
satisfactorily eliminated. In the event that the Subsequent User is unable to
resolve or eliminate, to the satisfaction of BellSouth, such interference within
thirty (30) days from the initial notification of such interference, the
Subsequent User will immediately remove or cease operations of the objectionable
facilities. Notwithstanding the foregoing, if the Subsequent User is a
governmental entity, BellSouth shall have the right to give the governmental
entity five (5) business days notice prior to BellSouth being required to take
any actions required by this Section 14(e) to cure such interference. BellSouth
shall give such governmental entity written notice of the interference within
two (2) business days of BellSouth's determination that such action is
reasonably necessary. BellSouth's notice to the governmental entity shall be
deemed given on the day it is delivered by hand or on the day it is deposited
with an overnight courier or the United States mail;
(f) Not permit any Prior User or Subsequent User to damage User's
Facilities or the Site, normal wear and tear excepted. If damage by BellSouth,
a Prior User, or Subsequent User, other than normal wear and tear, occurs to
User's Facilities or the Site, then BellSouth, such Prior User, or Subsequent
User, shall be liable for repair or reimbursement of repair for such damages
caused by such party;
(g) Use reasonable efforts not to violate or breach any term of the
Master Lease/License giving the Master Landlord the right, with the passage of
time and/or giving of notice, to terminate the Master Lease/License; deliver to
User copies of every notice of default, non-renewal or nonconformance received
from Master Landlord immediately upon receipt thereof by BellSouth, and User
shall have the right, but not the obligation, to cure any such defaults of
BellSouth within the periods afforded BellSouth under the Master Lease;
(h) Provide the Master Landlord with the information necessary to
enable the Master Landlord to comply with the reporting requirements of the EPA
or any other governmental agency; provided, however, BellSouth shall have no
obligation to provide the Master Landlord with information regarding the User's
Facilities if User has not provided BellSouth with such information in
accordance with the provisions of Section 13(i) hereof.
13
15. Compliance with Laws.
--------------------
(a) FCC and FAA Compliance. BellSouth acknowledges that it is aware
of its obligations under Section 303 of the Communications Act of 1934 (47
U.S.C. 303), as amended, to maintain the painting and illumination of Towers as
prescribed by the FCC. BellSouth further acknowledges that it is aware that it
is subject to forfeitures assessed by the FCC for violations of such rules and
requirements. BellSouth further acknowledges that it, and not User, shall be
responsible for compliance with all Tower or building marking and lighting
requirements which may be required by the Federal Aviation Administration
("FAA") or the FCC. BellSouth shall indemnify and hold harmless User from any
fines or other liabilities caused by BellSouth's failure to comply with such
requirements. Further, should User be cited by either the FCC or FAA because a
Tower is not in compliance within the time frame allowed by the citing agency,
User may terminate the Site Agreement for such Tower immediately upon notice to
BellSouth, or, at User's option, cause the Tower to comply with FAA or FCC
requirements and BellSouth shall be responsible for reimbursing User for its
actual, reasonable costs incurred to bring the Tower into compliance with FAA or
FCC requirements. Notwithstanding the foregoing, if FAA or FCC compliance
requires the removal and/or relocation of the Tower, User's sole remedy shall be
to terminate the Site Agreement for such Tower. Upon such termination, the
parties to the Site Agreement shall be released from all duties, obligations,
liabilities and responsibilities under the Site Agreement except for any
indemnity obligations, including without limitation, environmental indemnity and
tax obligations, and User's obligation to remove the Facilities from the
Property.
(b) Hazardous Substances. BellSouth and User agree that they will not
use, store, dispose, or release any Hazardous Substances on the Property in
violation of any applicable federal, state or local law, regulation, or order.
"Hazardous Substances" means any hazardous material or substance which is or
becomes defined as a hazardous substance, pollutant or contaminant subject to
reporting, investigation or remediation pursuant to any federal, state or local
law, regulation or order; and any substance which is or becomes regulated by any
federal, state or local governmental authority; and any oil, petroleum products
and their by-products. BellSouth and User acknowledge that User, BellSouth,
Prior Users and Subsequent Users may each use diesel fuel and batteries in
appropriate small quantities from time to time to operate emergency back-up
generators provided that the transportation, delivery, storage, use and disposal
by User, BellSouth, a Prior User, or a Subsequent User, as the case may be, is
in compliance with all federal, state and local laws, regulations and orders.
BellSouth agrees to indemnify and save harmless the User against any and all
claims, liabilities, demands, causes of action, losses, damages, orders,
judgments, penalties, clean-up costs, costs and expenses including, without
limitation, attorneys fees and costs, arising from BellSouth's
misrepresentation, breach of warranty or breach of agreement contained in this
Section 15(b). User agrees to indemnify and save harmless BellSouth against any
and all claims, liabilities, demands, causes of action, losses, damages, orders,
judgments, penalties, clean-up costs, costs and expenses including, without
limitation, attorneys fees and costs arising from User's misrepresentation,
breach of warranty or breach of agreement, contained in this Section 15(b). The
obligations of BellSouth and User to indemnify the other pursuant to this
Section 15(b) shall survive the termination or expiration of this MSA and each
Site Agreement.
(c) Phase I - Environmental Site Assessment. After the execution and
---------------------------------------
delivery by BellSouth and User of an Entry and Testing Agreement for a Site User
may perform a Phase I - environmental site assessment on the Property pertaining
to such Site provided such Phase I - environmental site assessment does not
involve any subsurface soils testing and further provided 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
14
consent and subject to BellSouth's supervision may User perform a Phase 11 -
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 instruction provided in such
signage, and to honor all physical barriers. In no event shall User's personnel
or contractors tamper with any such signage or barriers. User shall be
responsible for placement of signage or physical barriers at or near its
facilities at the Site in order to comply with applicable FCC radio frequency
exposure guidelines. BellSouth agrees that it shall cooperate with User in
these efforts and that BellSouth shall instruct its personnel and contractors
performing work at the Site to read carefully all such signage, to follow the
instructions provided in such signage, and to honor all physical barriers. In
no event shall BellSouth's personnel or contractors tamper with any such signage
or barriers. BellSouth and User shall cooperate in good faith to minimize any
confusion or unnecessary duplication that could result from similar signage
being posted respecting the other carrier's 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 Triton PCS Holding Company, L.L.C., a
Delaware limited liability company (collectively "Triton"), to any entity
resulting from the merger or consolidation of Triton, or to any person or entity
which acquires substantially all of the assets of Triton, provided that such
assignee
15
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,
without User's prior approval, and shall notify User within a reasonable time of
any such assignment. For purposes of this MSA and the Site Agreements,
"BellSouth Affiliate" shall mean any entity which controls, is controlled by, or
is under common control with BellSouth Carolinas PCS, L.P. ("BSCP") or BellSouth
Personal Communications, Inc. ("BPCI"), to any entity resulting from the merger
or consolidation of BSCP or BPCI, or to any person or entity which acquires
substantially all of the assets of BSCP or BPCI, provided that such assignee
assumes in full all of the obligations of BellSouth, under this MSA and the Site
Agreements that may be assigned.
(c) Liens. Except as provided in Section 10 (viii) hereof, User shall
-----
keep the Property, the Tower, the Site and the Facilities free from any liens
arising from any work performed, materials furnished or obligations incurred by
or at the request of User. All persons either contracting with User or
furnishing or rendering labor and materials to User shall be notified in writing
by User that they must look only to User for payment for any labor or materials.
If any lien is filed against the Property, the Tower, the Site or the Facilities
as a result of the acts or omissions of User, its employees, agents or
contractors or subcontractors, User shall discharge it or bond it off within
thirty (30) days after User learns that the lien has been filed.
17. Insurance: Risk of Loss.
-----------------------
(a) User's Insurance. Prior to installation of the Facilities and to
----------------
having access to a Site and at all times during the term of a Site Agreement,
User shall provide proof of insurance for each individual Site, as outlined
below, satisfactory to BellSouth, and maintain the coverages specified below
during the term of a Site Agreement and until all Facilities are removed from
the Site following termination of a Site Agreement:
(i) Commercial General Liability Insurance with limits of not
less than $2,000,000 per occurrence and in the aggregate.
(ii) Workers' Compensation coverage in the statutory amount.
(iii) Employers Liability coverage with limits of not less than
$500,000 each accident, $500,000 each employee by disease and $500,000 policy
limit by disease.
(iv) Automobile Liability for Owned and Non-Owned Autos, Combined
Single Limit of $1,000,000.
(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.
16
(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 of $1,000,000.
(iv) Automobile Liability for Owned and Non-Owned Autos,
Combined Single Limit
(v) All Risk Insurance with Replacement Value coverage of the
Tower and BellSouth's personal property located on the Property.
(c) Additional Insured. BellSouth shall be named as additional
------------------
insured on the policy listed in Section 17 (a) (i) above. User shall be named
as additional insured on the policy listed in Section 17 (b) (i) above.
Additionally, each party shall obtain a waiver of subrogation from its insurer
on the policies listed in Section 17 (a) (i) and Section (b) (i) above.
BellSouth and User may satisfy this requirement by obtaining appropriate
endorsements to any master or blanket policy of liability insurance User or
BellSouth, as applicable, may maintain. No policy may be cancelable or subject
to reduction of coverage except after thirty (30) days prior written notice to
BellSouth or User.
(d) Third Parties. User and BellSouth shall require their respective
-------------
contractors and subcontractors to carry workers' compensation insurance and
adequate liability insurance in conformity with the minimum requirements listed
above.
(e) Risk of Loss; Limitation of Liability. Notwithstanding anything
-------------------------------------
herein to the contrary, each party shall bear the risk of loss of or damage to
the respective personal property during the term of each Site Agreement except
to the extent caused by the negligence or willful misconduct of the other party.
Neither party shall be liable for any damage to the other party's personal
property except to the extent caused by a party's negligence or willful
misconduct. Notwithstanding anything herein to the contrary, the parties shall
not be liable for any consequential or incidental damages incurred by the other
party due to any malfunction, vandalism, acts of God (including, without
limitation, lightning, wind, rain, hail, fire or storms) or any other damage
resulting from any reason. In the event the Tower or other portions of the Site
are destroyed or so damaged as to be unusable, BellSouth or User shall be
entitled to elect to cancel and terminate the Site Agreement, or in the
alternative may elect to restore the Site, in which case User and BellSouth
shall remain bound hereby but shall be entitled to an abatement of rent during
the loss of use, if the User or BellSouth has not elected to cancel the Site
Agreement. In no event shall the leasehold or 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
17
or condition of this MSA or a Site Agreement. BellSouth does hereby agree to
indemnify and save User harmless from any and all claims, liabilities, demands,
causes of action, losses, damages, orders, judgments, penalties, costs and
expenses, including without limitation, reasonable attorneys fees and costs (i)
for property damage or personal injuries or death caused by the negligence or
willful misconduct of BellSouth, BellSouth's agents, employees, and contractors
arising out of BellSouth's occupancy of the Site or the installation,
maintenance and operation of the Facilities, or (ii) resulting from BellSouth's
breach of any term or condition of this MSA or a Site Agreement. The obligations
to indemnify and hold harmless set forth in this Section shall survive the
expiration or termination of this MSA and each respective Site Agreement.
19. Default.
-------
(a) User's Default. Each of the following shall be considered a
--------------
default of a Site Agreement by the User:
(i) The failure to pay any rent or other charges required
pursuant to this MSA and the Site Agreement within thirty (30) days after
receipt of BellSouth's written notice of such failure;
(ii) The failure to cure, within (30) days after receipt of
BellSouth's written notice thereof, any breach of any other term of this MSA or
the Site Agreement, provided, however, that if such breach is not capable of
being cured within such period but User has undertaken efforts to cure such
breach, and such breach is capable of being cured, such thirty (30) day period
shall be extended for so long as User is diligently attempting in good faith, to
cure such breach, not to exceed an additional thirty (30)calendar days (except
for promises relating to interference as set forth in Section 13 (b) hereof);
(iii) Abandonment of the Site ("Abandonment" being defined as
User not using the Site for sixty (60) consecutive days);
(iv) The failure of User to eliminate interference problems as
set forth in Section 13(b); or
(v) If (a) User gives notice to any governmental body of its
insolvency or pending insolvency or makes an assignment for the benefit of
creditors or takes any other similar action for the protection or benefit of its
creditors, or files an answer admitting the material allegations of, or
consenting to, or defaults in answering any pleading filed with respect to the
commencement of any case or proceeding respecting User under any bankruptcy or
insolvency law, or (b) any order for relief is entered against User in any case
in bankruptcy, any order, judgment or decree is entered against User by a court
of competent jurisdiction appointing a receiver, trustee, custodian or
liquidator of User or of all or a substantial part of its assets, and such
order, judgment, or decree continues unstayed and in effect for a period of
ninety (90) consecutive days, or any proceeding for the reorganization of a
party under, or for an arrangement under, any bankruptcy or insolvency law
applicable to User is commenced whether by or against User and not dismissed
within ninety (90) days from commencement thereof.
Upon default of a Site Agreement by User, in addition to all other remedies
provided at law or in equity, BellSouth may, at its option:
18
(aa) elect to remove all of the Facilities by legal
process, thereby terminating the Site Agreement, and store the Facilities at
User's expense, payable upon demand by BellSouth.
(bb) elect to treat the Site Agreement in full force and
effect and shall be entitled to collect the rent provided for hereunder.
Upon the termination of a Site Agreement pursuant to Section (aa) above, the
parties hereto shall be released from all duties, obligations, liabilities and
responsibilities under the Site Agreement except for indemnity obligations,
including without limitation, environmental indemnity and tax obligations, any
obligations arising prior to the date of termination, and User's obligation to
remove its Facilities from the Property.
(b) BellSouth's Default. Each of the following shall be
considered a default of a Site Agreement by BellSouth:
(i) The failure to cure, within (30) days after receipt
of User's written notice thereof, any breach of any other term of this MSA or
the Site Agreement, provided, however, that if such breach is not capable of
being cured within such period but BellSouth has undertaken efforts to cure such
breach, and such breach is capable of being cured, such thirty (30) day period
shall be extended for so long as BellSouth is diligently attempting in good
faith, to cure such breach, not to exceed an additional thirty (30) calendar
days (except for promises relating to interference by a Subsequent User as set
forth in Section 14 (e) which must be cured within the time frame set forth in
Section 14 (e) and except for any breach of the Master Lease/License which must
be cured within the time frames set forth in the Master Lease/License); or
(ii) The failure of BellSouth to eliminate interference
problems as set forth in Section 14 (e).
Upon default of a Site Agreement by BellSouth, in addition to all other remedies
provided at law or in equity, User may, at its option:
(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:
19
(a) any Approval is canceled, expires, lapses, or is otherwise
withdrawn or terminated through no fault of 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.
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 A 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 understood
that BellSouth is under no obligation to extend the term of the Master
Lease/License for any particular Site.
(b) In the event BellSouth needs additional capacity at a
Site for its equipment, BellSouth may terminate a Site Agreement as provided in
Section 9 hereof. In the event User refuses to lease, sublease, license or
sublicense, as applicable, a Reciprocal Site to BellSouth, for reasons unrelated
to User's capacity, zoning, permits, licenses and other required approvals, or
environmental issues with respect to such Reciprocal Site, BellSouth may elect
to terminate any existing Site Agreement in the same geographic market as the
proposed Reciprocal Site refused by User, effective thirty (30) days after
receipt by User of written notice. Upon termination of any Site Agreement, such
terminated Site Agreement shall be of no further force and effect and the
parties hereto shall be released from all duties, obligations, liabilities, and
responsibilities under the terminated Site Agreement, except for indemnity
obligations, User's obligation to remove the Facilities from the terminated
Site, and User's obligations set forth in Section 13 (h) hereof. In the event
User does not remove its Facilities from the terminated Site as provided in
Section 9 or Section 13 (h) hereof, as applicable, BellSouth shall have the
right to remove and store User's Facilities, at User's expense.
21. Condemnation. If the whole of the Property or Site which are
------------
subject of any Site Agreement or so much thereof as to interfere with the use
thereof shall be taken or condemned by any competent authority for any public or
quasi-public use or purpose, such Site Agreement shall terminate as of the date
when possession is taken. In such event, BellSouth shall be under no liability
to User resulting from such condemnation and User shall be entitled to no part
of any condemnation award except so much thereof as the condemning authority
expressly allocates to that portion of the proceeds directly attributable to the
value of User's Facilities on the Tower, its leasehold interest in the Site, and
moving or relocation expenses incurred by User. BellSouth shall provide User
with notice in writing of any actual or threatened condemnation proceedings
promptly after receiving notice thereof. Upon such termination, the parties to
the Site Agreement shall be released from all duties, obligations, liabilities
and responsibilities under the Site Agreement except for any indemnity
obligations, including without
20
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 attom 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. Entirely. 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:
BellSouth: BellSouth Personal Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Real Estate Manager
with a copy to:
BellSouth Personal Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
21
User: Triton PCS Property Company L.L.C.,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Kleinbard, ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
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 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.]
22
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:______________________________________
Name:____________________________________
Title:___________________________________
Attest:__________________________________
Name:____________________________________
Title:___________________________________
[AFFIX CORPORATE SEAL]
BELLSOUTH PERSONAL COMMUNICATIONS, INC.,
a Delaware corporation
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Attest:_______________________________________
Name:_________________________________________
Title:________________________________________
[AFFIX CORPORATE SEAL]
23
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
USERS:
-----
TRITON PCS PROPERTY COMPANY, L.L.C.
a Delaware limited partnership (SEAL)
By: TRITON PCS PROPERTY COMPANY, INC.
a Delaware corporation,
its Manager
By:_________________________________
Name:_______________________________
Title:_______________________
Attest:_____________________________
Name:_______________________________
Title:
[AFFIX CORPORATE SEAL]
24
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 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 _______ President, sealed with its corporate seal, and
attested by him/her as its Secretary.
__________________________________________
Notary Public, State of __________________
My Commission Expires:____________________
[NOTARIAL SEAL]
-
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 TRITON MANAGEMENT COMPANY, INC., a Delaware corporation, and
Manager of TRITON PCS PROPERTY COMPANY L.L.C., 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 ___President, sealed with its corporate seal, and attested by him/her as its
_____________________Secretary.
__________________________________________
Notary Public, State of___________________
My Commission Expires:____________________
[NOTARIAL SEAL]
-
25
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 TRITON PCS PROPERTY COMPANY, L.L.C., a Delaware limited
liability company (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")] (WHICH MASTER
LEASE/LICENSE IS ATTACHED HERETO AS EXHIBIT "A-1") AND INCORPORATED HEREIN BY
REFERENCE, SUBJECT TO REDACTION OF FINANCIAL TERMS) 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,] [ground space containing ______ (_____) [acres/square feet], as
approximately shown on Exhibit "B" attached hereto and incorporated herein by
this 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 I 0 (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
BellSouth's Site Name: ________ User's Site Name:________
Site Number: ________ Site Number: _______
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, generators, 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 (1)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 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
(the "Site Commencement Date"), and shall continue until midnight of the tenth
(10th ) anniversary of the Site Commencement Date (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 two (2)
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.
3. Rent/Renewal Terms. In addition to any required application fee and
------------------
the Site Cost Reimbursement Amount, which shall be paid by User upon the
execution and delivery of this Site Agreement, during the first five (5) years
of the Initial Term, User shall pay annual rent of ***** in equal annual
installments in accordance with the MSA. For the sixth through tenth year of the
Initial Term, the annual rent shall be increased by ***** 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 increased by ***** over the annual rent
then
BellSouth's Site Name: ________ User's Site Name:________
Site Number: ________ Site Number: _______
--------------------------------------------------------------------------------
***** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
2
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
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Recurring Invoice No. 71302 - ___-______-________
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 NEPA.]
[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:
BellSouth: [BELLSOUTH CAROLINAS PCS, L.P.]
[c/o]BellSouth Personal Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Real Estate Manager
with a copy to:
[BELLSOUTH CAROLINAS PCS, L.P.]
[c/o]BellSouth Personal Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
BellSouth's Site Name: ________ User's Site Name:________
Site Number: ________ Site Number: _______
3
User: Triton PCS Property Company, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Kleinbard, ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
BellSouth's Site Name: ________ User's Site Name:________
Site Number: ________ Site Number: _______
4
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
signature date set forth below.
USER:
----
TRITON PCS PROPERTY COMPANY, L.L.C.
a Delaware limited partnership (SEAL)
By: TRITON PCS PROPERTY COMPANY, INC.
a Delaware corporation,
its Manager
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 TRITON MANAGEMENT COMPANY, INC., a corporation and Manager of TRITON PCS
PROPERTY COMPANY L.L.C., a Delaware limited partnership liability company, and
that by authority and as the act of the corporation as Manager, the foregoing
instrument was signed in its name by its ___________________Secretary.
______________________________________
Notary Public, State of_______________
My Commission Expires:________________
[NOTARIAL SEAL]
-
BellSouth's Site Name: ________ User's Site Name:________
Site Number: ________ Site Number: _______
5
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 TRITON MANAGEMENT COMPANY, INC., a corporation and Manager of TRITON PCS
PROPERTY COMPANY L.L.C., a Delaware limited partnership liability company, and
that by authority and as the act of the corporation as Manager, 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]
BellSouth's Site Name:____ User's Site Name:____
Site Number:____ Site Number:____
6
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 as Manager, the foregoing instrument was signed in its _____________
name by its ___________ Secretary.
________________________________________
Notary Public, State of ________________
My Commission Expires:__________________
[NOTARIAL SEAL]
BellSouth's Site Name:____ User's Site Name:____
Site Number:____ Site Number:____
7
EXHIBIT "A"
-----------
Site Description
----------------
Site Name: ___________ MSA/RSA/MTA/BTA: ________
Site Number __________ Site Address: ___________
Latitude: ____________
Longitude:____________
Legal Description of Property:
-----------------------------
Legal Description of Access Easement:
------------------------------------
Legal Description of Utility Easement:
-------------------------------------
BellSouth's Site Name:____ User's Site Name:____
Site Number:____ Site Number:____
8
EXHIBIT "A-1"
-------------
MASTER LEASE/LICENSE AGREEMENT
------------------------------
(Subject to redaction)
BellSouth's Site Name:____ User's Site Name:____
Site Number:____ Site Number:____
9
EXHIBIT "B"
-----------
USER'S GROUND SPACE
-------------------
BellSouth's Site Name:____ User's Site Name:____
Site Number:____ Site Number:____
10
EXHIBIT "C"
-----------
USER'S TOWER FACILITIES AND GROUND FACILITIES
---------------------------------------------
[Attach User's Co-Location Application]
BellSouth's Site Name:____ User's Site Name:____
Site Number:____ Site Number:____
11
EXHIBIT"D"
----------
Certification as to Ground Lease
--------------------------------
[Date]
----
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]
BellSouth's Site Name:____ User's Site Name:____
Site Number:____ Site Number:____
12
EXHIBIT "E"
-----------
NOTICE OF INSTALLATION OF USER'S FACILITIES
-------------------------------------------
[DATE]
----
[BellSouth's Name]
[BellSouth's Address]
RE: Site Agreement from BellSouth to [USERL 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]
BellSouth's Site Name:____ User's Site Name:____
Site Number:____ Site Number:____
13
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 CAROLINAS PCS, L.P., a Delaware limited partnership,
d/b/a BellSouth Mobility DCS ("BellSouth"), and TRITON PCS PROPERTY COMPANY,
L.L.C., a Delaware limited liability company ("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
BellSouth's Site:____
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:
_________________________,
a ________________________
By:_______________________
Print Name:_______________
Title:____________________
ENTRANT:
TRITON PCS PROPERTY COMPANY, L.L.C.,
a ____________ limited liability company
By: Triton Management Company, Inc. its Manager
______________________
its Manager
By:___________________
Print Name:___________
Title:________________
BellSouth's Site:____