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Agreement To Build To Suit And To Lease, Dated

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Sectors: Telecommunications
Governing Law: Georgia, View Georgia State Laws
Effective Date: November 24, 1998
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EXHIBIT 10.22


[Letterhead of SBA COMMUNICATIONS CORPORATION]


November 24, 1998


BellSouth Personal Communications, Inc. 3353 Peachtree Road, N.E., Suite 400 Atlanta, Georgia 30326


First Amendment of Build to Suit Agreement and Master Lease


Gentlemen:


Reference is made to that certain (i) Agreement to Build to Suit and to Lease (the "Build to Suit Agreement"), dated October 30, 1998, by and among BellSouth Personal Communications, Inc. ("BellSouth") for itself and as general partner of BellSouth Carolinas PCS, L.P., SBA Towers, Inc. and SBA, Inc., and (ii) Master Lease (the "Master Lease"), dated October 30,1998, by and among BellSouth, SBA Towers, Inc. and SBA Sites, Inc. Capitalized terms not otherwise defined in this letter will have the meaning provided in the Build to Suit Agreement and the Master Lease.


This letter will amend the Master Lease effective as of the date of this letter by replacing the definition of Rent used in the Master Lease with the rental set forth on Exhibit A attached to this letter with respect to the Sites listed on Exhibit B attached to this letter only, which Sites have been awarded to Vendor pursuant to the Build to Suit Agreement, and which Sites will be identified and constructed in accordance with the terms and conditions of the Build to Suit Agreement.


Except as modified or amended above, the Build to Suit Agreement and the Master Lease are hereby ratified and confirmed in all respects, are in full force and effect, and have not otherwise been amended, modified, extended or renewed, whether verbally or in writing.


Please confirm BellSouth's agreement with the terms of this letter by signing below. Faxed signatures will be binding.


Thank you for your attention to this matter.


Very truly yours,


SBA Towers, Inc.


By: /s/ Jeffrey A. Stoops
--------------------------
Names: Jeffrey A. Stoops
Title: Sr. Vice President


SBA Sites. Inc.


By: /s/ Jeffrey A. Stoops
--------------------------
Names: Jeffrey A. Stoops
Title: Sr. Vice President


Acknowledged and Agreed this 30th day of November, 1998


BELLSOUTH PERSONAL COMMUNICATIONS, INC.


By: /s/ Stephen A. Brake
---------------------------
Name: Stephen A. Brake
Title: Vice President - Finance


THE CAROLINAS PARTNERSHIP:


BELLSOUTH CAROLINAS PCS, L.P., by BELLSOUTH PERSONAL COMMUNICATIONS, INC., its general partner


By: /s/ Stephen A. Brake
---------------------------
Name: Stephen A. Brake
Title: Vice President - Finance


EXHIBIT A


INITIAL MONTHLY AMOUNT


Year Amount Per Month ---- ---------------- 1 $1,145.00


Thereafter, the Amount Per Month shall be increased 4% annually for the initial Term and any Extension Terms.


EXHIBIT B


ADDITIONAL SITES


Region 1


Sorted by General Manager by Commercial Service Date


Cluster Cluster # Priority Location Sites -------- -------- -----


Ral31 Hwy [ILLEGIBLE] 4 Ral37 Camp LaJeune 3 Ral35 195 Roanoke Rapids to VA 2 Ral33 Hwy 15/501 Pittsboro to Sanford 2 Ral30 Hwy 64 Tarboro to Outer Banks 15 Ral26 Hwy 24 Fayetteville to Clinton/140 7 Ral25 I85 Henderson to VA 2 Ral15 Hwy 64 Rocky Mount to Tarboro 4 Ral10 I95 Rocky Mount to Roanoke Rapids 4
43


GB9 Connecting Asheboro to Sier City 4 GB8 NE Greensboro/Lake Townsend 1 GB7 SW Greensboro 2 GB26 Danbury 1 GB25 Tobaccoville 1 GB24 Route 62 Connector 2 GB21 Route 158 Connector 2 GB19 Interstate 77 Connector 4 GB18 Route 87 2 GB17 Summerfield and Route 150 1 GB4 Boone/Blowing Rock 12 GB23 Route 16 Connector 1 GB13 Pleasant Garden 1 GB20 Route 601 Connector from Yadkinville to 2
Mocksville GB22 Route 49 Connector to Charlotte 5
41


Cha9 Hwy 24/27 Hwy 601 7 Cha8 Belmont Lowell 1 Cha7 Weddington Waxhaw 2 Cha6 Lincolnton/Hwy. 16/Stanley 4


Cha31 Concord hwy. 73 2 Cha30 New 321 By-pass 2 Cha3 L77 Highway 16 1 Cha17 Salisbury/StatesvilleMooresville 7 Cha14 Monroe to Waxhaw (Hwy.75) 2 Cha10 South Lenoir (Bypass area) 1 Cha35 Hwy 401 (Bennettsville to BTA 147) 2 Cha34 Hwy. 220/73 and Hwy.1 Rockingham to 3
Candor Cha32 Mount Pleasant 2 Cha29 Monroe to Concord (Hwy.200) 4 Cha28 Rutherfordton to BTA 20 4 Cha26 Wadesboro to Albemarle (Hwy. 52) 4 Cha25 York to Chester 2 Cha24 Mooresville Northeast 1 Cha23 Lenoir to Blowing Rock 5 Cha19 Taylorsville to Lenoir/Hickory 10 Cha18 Monroe to Lancaster (Hwy. 200 S) 3 Cha16 Lancaster, SC to Pageland, SC (Hwy.9) 3 Cha15 Hwy 49/274 (York, SC to Gaston Co.) 3
75


Total 1999 Region 1 Sites 159


and any additional sites that are approved by SBA Towers, Inc. pursuant to
Section 3.09 of the Agreement to Build to Suit and to Lease (the "BTS
Agreement"), dated October 30, 1998, among BellSouth, for itself, and as
general partner of BellSouth Carolinas PCS, L.P., SBA Towers, Inc. and SBA,
Inc., and are not otherwise listed on Annex A to the BTS Agreement.


--------------------------------------------------------------------------------


EXECUTION COPY


AGREEMENT TO BUILD TO SUIT
AND
TO LEASE


By and Among


BELLSOUTH PERSONAL COMMUNICATIONS, INC.,
for itself, and as general partner of
BELLSOUTH CAROLINAS PCS, L.P.,


SBA TOWERS, INC.


and


SBA, INC.


OCTOBER 30, 1998


--------------------------------------------------------------------------------


(C)BellSouth Personal Communications, Inc. 1998


RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.


TABLE OF CONTENTS ARTICLE 1 ................................................................... 2


1.01 Definitions ......................................................... 2


1.O2 Use of Words and Phrases ............................................ 8


ARTICLE 2 ................................................................... 9


ARTICLE 3 ................................................................... 10


3.01 Engagement of Vendor ................................................ 10


3.02 Term ................................................................ 10


3.03 Time for Commencement and Completion ................................ 10


3.04 Relationship ........................................................ 11


3.05 Project Personnel ................................................... 11


3.06 Familiarity with Project and Sites .................................. 12


3.07 Quality Standard .................................................... 12


3.08 Books and Records of Vendor; Right of Inspection by BellSouth ....... 12


3.09 Expansion in Scope of Project ....................................... 12


3.10 Available Sites in Event of Condemnation ............................ 13


ARTICLE 4 ................................................................... 14


4.01 Vendor's Undertakings ............................................... 14


4.02 Governmental Requirements and Permits................................ 14


ARTICLES 5 .................................................................. 16


5.01 Development Plan .................................................... 16


5.02 Due Diligence ....................................................... 17


5.03 Proposal of Cell Sites .............................................. 17


5.04 Utilities ........................................................... 17


(C)BellSouth Personal Communications, Inc. 1998


2


RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.


ARTICLE 6 ................................................................... 18


6.01 General ............................................................. 18


6.02 Performance of the Work ............................................. 19


6.04 Site and Project Schedules .......................................... 19


6.05 Quality Review ...................................................... 20


6.06 Compliance with Requirements, Permits, Bonds and
Insurance during Construction ....................................... 20


6.07 Work Permits ........................................................ 20


6.08 Construction ........................................................ 20


6.09. Project Tools ...................................................... 21


6.10 Warranty ............................................................ 21


6.11 Access Inspection ................................................... 21


6.12 Completion .......................................................... 23


ARTICLE 7 ................................................................... 23


7.01 Identification of Colocation Sites .................................. 23


7.02 Other Colocation Services ........................................... 24


ARTICLE 8 ................................................................... 24


8.01 Site Acquisition .................................................... 24


8.02 Vendor's Access to Site Prior to Scheduled Commencement Date......... 24


8.03 Hazardous Waste and Contamination Investigation ..................... 25


8.04 Geotechnical Subsurface and Soil Investigation ...................... 25


8.05 Additional Environmental Requirements ............................... 25


ARTICLE 9 ................................................................... 26


9.02 Assignment to the Bankruptcy Remote Entity .......................... 26


9.01 Right to Lease ...................................................... 26


9.03 Recordation of Ground Leases and Site Leases ........................ 26


(C)BellSouth Personal Communications, Inc. 1998


3


RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.


9.04 Effect of Master Lease and Site Lease ............................... 26


ARTICLE 10 .................................................................. 27


10.01 Vendor's Insurance Requirements .................................... 27


10.02 Evidence of Insurance .............................................. 28


10.03 Waiver of Subrogation .............................................. 28


ARTICLE 11 .................................................................. 28


11.01 Liquidated Damages ................................................. 28


11.02 Indemnity of BellSouth ............................................. 29


11.03 Relationship to Insurance .......................................... 29


ARTICLE 12 .................................................................. 30


12.01 BellSouth's Representations and Warranties ......................... 30


12.02 Vendor's Representations and Warranties ............................ 30


ARTICLE 13 .................................................................. 31


13.01 Default ............................................................ 31


ARTICLE 14 .................................................................. 34


14.01 Force Majeure ...................................................... 34


14.02 Effect of Force Majeure ............................................ 35


ARTICLE 15 .................................................................. 35


15.01 Obligation to Reconstruct; Use of Insurance Proceeds ............... 35


15.02 Condemnation of the Tower or Site; Application of Compensation ..... 35


ARTICLE 16 .................................................................. 35


16.02 Notices ............................................................ 35


16.03 Assignment; Binding Effect ......................................... 37


16.04 Authorized Representatives ......................................... 37


(C)BellSouth Personal Communications, Inc. 1998


4


RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.


16.05 Headings .............................................................. 37


16.06 Annexes and Exhibits .................................................. 37


16.08 Publicity ............................................................. 37


16.09 Severability .......................................................... 37


16.10 Waiver ................................................................ 38


16.11 Rights Cumulative ..................................................... 38


16.12 Time of Essence; Prompt Responses ..................................... 38


16.13 Applicable Law ........................................................ 38


16.14 Dispute Resolution Procedure .......................................... 38


16.15 Entire Agreement ...................................................... 39


16.16 Modifications ......................................................... 39


16.17 Counterparts .......................................................... 40


16.18 No Brokers ............................................................ 40


LIST OF ANNEXES AND EXHIBITS


Annex A Original Sites; Additional Sites Annex B Scope of Work Annex C Specifications Annex D Vendor Responsibility Matrix Annex E Disaster Recovery Plan Annex F Project Data Requirements Annex G Project Schedule Annex H Authorized Representatives Annex I Colocation Services Annex J Form of Candidate Sheet/NTP Annex K Bankruptcy Remote Entity Requirements Annex L Form of Final Punchlist/Acceptance Confirmation Annex M Form of Certificate of Completion Annex N Form of Site Data Package Annex O Project Dispute Resolution Procedures Exhibit A Form of Master Lease Exhibit B Form of Site Lease Exhibit C Form of Ground Lease


(C)BellSouth Personal Communications, Inc. 1998


5


RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.


AGREEMENT TO BUILD TO SUIT
AND TO LEASE


THIS AGREEMENT, made and entered into as of this 30 day of October, 1998 by and among BELLSOUTH PERSONAL COMMUNICATIONS, INC. ("BellSouth") for itself, and as general partner of BellSouth Carolinas PCS, L.P., a Delaware limited partnership (the "Carolinas Partnership"), SBA TOWERS, INC., a Florida corporation ("SBA Towers") and SBA, INC., a Florida Corporation ("SBA", and together with SBA Towers, "Vendor"),


W I T N E S S E T H:


WHEREAS, BellSouth desires Vendor to identify potential cell site locations within specified search areas and to cause each such cell site selected by BellSouth to be acquired or leased by Vendor and to be developed, among other things, causing a tower and other improvements to be designed, constructed and installed thereon, for lease to, and use and occupancy by, BellSouth or the Carolinas Partnership; and


WHEREAS, BellSouth and the Carolinas Partnership also desire to engage Vendor as an independent contractor, upon the terms and conditions set forth herein, to provide, or cause the provision of, among other things, ongoing services related to each such selected cell site and Vendor desires to perform such services for BellSouth; and


WHEREAS, BellSouth and the Carolinas Partnership and Vendor desire to enter into this Agreement to set forth their respective duties and responsibilities pertaining to such construction; and


WHEREAS, the parties acknowledge and agree that in order to implement such construction and installation, SBA Towers shall acquire either fee simple title to, or a leasehold interest in each cell site by executing a ground lease for such site and SBA shall perform any Services (as defined in Section 1.01) related to each site, including, without limitation, development of such site, construction and installation of a tower and improvements on such site and any other Services to be provided by Vendor under this Agreement; and


WHEREAS, contemporaneously with the execution of this Agreement, the parties and the Bankruptcy Remote Entity (as defined in Section 1.01) have executed a Master Lease (as defined in Section 9.01), pursuant to which the Bankruptcy Remote Entity will lease each such selected cell site and the tower and other improvements thereon to BellSouth or the Carolinas Partnership, on terms and conditions set forth in the Master Lease and the Site Lease (as defined in Section 1.01) for such cell site;


(C)BellSouth Personal Communications, Inc. 1998


RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.


NOW, THEREFORE, for and in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:


ARTICLES 1


DEFINITIONS


1.01 Definitions. (a) The following capitalized terms shall have the following respective meanings for purposes of this Agreement:


"Additional Sites" has the meaning ascribed to such term in Section 3.09.


"Acquisition" means the acquisition by Vendor of fee simple title to or a leasehold interest in each Site, all investigations, examinations, tests and inspections, and other due diligence activities incidental thereto, and all legal activities incident thereto.


"Acquisition Date" means, with respect to a Site, the date on which SBA Towers acquires either fee simple title to or a leasehold interest in such Site.


"Affiliate" means with respect to either party, any individual or firm, corporation, partnership, association, trust or other entity which, whether directly or indirectly, Controls, is Controlled by, or is under common Control with the subject party.


"Agreement" means this Agreement, including any Annexes, Exhibits and any amendments hereto or thereto.


"Anchor Tenant" has the meaning ascribed to such term in the Master Lease.


"Bankruptcy Remote Entity" means a bankruptcy-remote, 100%-owned subsidiary of SBA Towers, formed and structured by SBA Towers in compliance with the requirements set forth in Annex K and engaged exclusively in the business of owning (through fee simple title or a leasehold interest), operating and managing Sites and Improvements thereon and leasing such Sites and Improvements to BellSouth or the Carolinas Partnership and Other Tenants pursuant to the terms of the Master Lease and the applicable Site Leases.


"BellSouth Indemnitee" means BellSouth, the Carolinas Partnership, their respective Affiliates, and the respective directors, officers, employees, agents, contractors, subcontractors, advisors and consultants of BellSouth, the Carolinas Partnership and their respective Affiliates.


"BellSouth's Improvements" has the meaning ascribed to the term "Anchor Tenant's Improvements" in the Master Lease.


(C)BellSouth Personal Communications, Inc. 1998


2


RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.


"Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close in Atlanta, Georgia.


"Change of Control" has the meaning ascribed to such term in the Master Lease.


"Claim" has the meaning ascribed to such term in Section 11.02.


"Cluster" means a cluster, string or other group of Sites and identified as such in Annex A.


"Cluster Completion Date" means, as to any Cluster, the first date as of which all Sites in such Cluster are Completed, other than Sites in such Cluster as to which an Excusable Delay has occurred.


"Colocation Services" shall mean the services to be performed by Vendor for BellSouth as described in Annex I.


"Completion," "Complete" or "Completed" means or refers to (i) Vendor's receipt of all FAA and zoning approvals and other Permits in accordance with all Governmental Requirements, (ii) Vendor's completion of all items of construction in accordance with the Specifications and the requirements of all Governmental Authorities applicable to Vendor or the Improvements so that BellSouth can use the Tower and Improvements for the Intended Use without interference in BellSouth's conduct of its ordinary business activities, except for customary punch list items relating to minor nonconformities with the Specifications, the failure of any one or more of which to remedy would not have an adverse impact on the Intended Use, and any other defects or other items that BellSouth has waived in writing; (iii) Vendor's securing a certificate of occupancy or any other final municipal approval from the applicable Governmental Authority, if applicable; (iv) the issuance by BellSouth of the Completion Certificate in accordance with Section 6.12; (v) BellSouth, its employees, agents and invitees, have ready access to the areas around the Tower and Improvements; (vi) all the fixtures and equipment to be installed by Vendor are installed and in good operating order; (vii) the Tower and the Improvements are ready for the installation of BellSouth's Improvements; and (viii) the Site is broom clean.


"Completion Certificate" means the certificate of completion issued by BellSouth with respect to each Site to the effect that the Work is Completed, which certificate shall be issued in accordance with Section 6.12 and Annex M attached hereto.


"Completion Date" means the date on which the Tower and Improvements are Completed with respect to each Site, pursuant to the Project Schedule and the applicable Site Schedule.


(C)BellSouth Personal Communications, Inc. 1998


3


RESTRICTED: Contains Private and/or Proprietary Information.
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