Master Design Build Agreement - Bright

CONFIDENTIAL TREATMENT REQUESTED


Confidential Portions of This Agreement Which Have Been Redacted Are Marked With Brackets ("[***]"). The Omitted Material Has Been Filed Separately With The Securities and Exchange Commission.


MASTER DESIGN BUILD AGREEMENT


THIS MASTER DESIGN BUILD AGREEMENT ("Agreement") dated as of the 1st day of October, 1999 ("Effective Date"), is made by and between Bright Personal Communications Services, LLC ("Bright PCS") and SBA Towers, Inc., a Florida corporation ("BTS Company").


WHEREAS, Bright PCS is in the business of providing wireless telecommunications services; and


WHEREAS, BTS Company is in the business of erecting, owning and leasing tower facilities for equipment used in providing such services; and


WHEREAS, Bright PCS desires to use BTS Company's services to identify, evaluate, and acquire sites for such tower facilities; and


WHEREAS, BTS Company desires to construct a network of such tower facilities within Bright PCS's service areas in a manner that will coordinate with Bright PCS's needs for tower facilities; and


WHEREAS, the parties desire that in most cases a site identified by the procedures set forth herein will result in a tower facility constructed by BTS Company and leased to Bright PCS for the installation and operation of its equipment; and


WHEREAS, this Agreement sets forth the manner in which Bright PCS will identify the general location of potential sites, BTS Company will evaluate and make recommendations as to specific sites and Bright PCS will lease space on any such site for the installation and operation of its equipment pursuant to this Agreement.


NOW, THEREFORE, for and in consideration of the mutual promises set forth herein, the parties hereto agree as follows:


1. RELATIONSHIP OF PARTIES


1.1 INDEPENDENT CONTRACTOR RELATIONSHIP. The parties intend by this Agreement to establish an independent contractor relationship. Neither party nor their employees shall be agents or legal representatives of the other party for any purpose. Neither party shall have the authority to act for, bind, or commit the other party. BTS Company and Bright PCS agree that this Agreement does not establish or create a relationship of employer-employee, principal-agent, or a franchise, joint venture, or partnership for any purpose whatsoever.


1.2 CONTRACTS WITH AFFILIATES. BTS Company may contract with any Affiliate (as hereinafter defined) of BTS Company to provide goods or services beyond those which its employees would perform, if it deems the same to be necessary or advisable for development and/or construction of the Sites (as hereinafter defined).


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1.3 LANDLORD AND TENANT RELATIONSHIP. BTS Company and Bright PCS shall execute contemporaneously with the execution of this Agreement, a Master Site Agreement ("MSA") which governs the relationship of BTS Company, as landlord, and Bright PCS, as tenant, on those BTS Sites which are accepted by Bright PCS pursuant to Section 2.7(b) of this Agreement. A copy of the MSA is attached hereto as Exhibit "A."


1.4 EXCLUSIVITY. During the term of this Agreement, BTS Company shall be the exclusive build-to-suit, site acquisition, line and antenna installation, and construction company for wireless telecommunications tower sites for Bright PCS and its Affiliates in Region 1 (as defined in the MSA). For purposes of this Agreement, "Affiliates" with respect to either party, shall mean companies which are controlled by that party. For purposes of this Agreement, the word "control" shall mean the ownership, directly or indirectly, or the power to direct or cause the direction of the management and policies of an entity, or the power to veto major policy decisions of any such entity, whether through the ownership of voting securities, by contract or otherwise. During the term of this Agreement, Bright PCS shall not engage any third party or Affiliate directly or indirectly to perform build-to-suit, site acquisition, construction, or equipment installation services described in this Agreement and will not enter into any discussions with any third party or Affiliate concerning, or furnish any information relating to such services to any third party or Affiliate, for the purpose of considering, soliciting or inducing any offer by such third party. Notwithstanding the foregoing, in the event that Bright PCS and BTS Company do not agree upon the payment amount for a CMS Site (as hereinafter defined), Bright PCS shall be entitled to utilize a different contractor or subcontractor or its own personnel for construction services. In the event that Bright PCS elects to utilize a different contractor or subcontractor as provided herein, Bright PCS shall first offer BTS Company the right to perform such services on the same terms and conditions as offered by the contractor or subcontractor.


II. SITE ACQUISITION SERVICES


2.1 SITE ACQUISITION SERVICES.


(a) Bright PCS shall establish small geographic areas within which a
cell site or transmission tower shall be located, based on the network
grid's RF design (a "Search Ring"). For each Search Ring, Bright PCS shall
provide (i) minimum tower specifications, (ii) desired mounting height,
(iii) a description of the equipment that Bright PCS intends to put on the
tower, and (iv) any other technical data necessary to permit BTS Company to
effectively identify the candidate sites that meet Bright PCS's needs.
Bright PCS will provide to BTS Company its system network grid, with the
established Search Rings overlaid thereon. Bright PCS will, from time to
time, assign Search Rings to BTS Company. BTS Company shall provide the
personnel and facilities which are necessary to locate and lease or license
existing towers, buildings or other structures by Bright PCS to be used for
the construction and installation of Bright PCS's equipment ("Collocation
Sites") or unimproved real property suitable for the construction and
installation of a communications tower ("Tower") and related facilities by
BTS Company ("BTS Site"). As used herein, "Sites" shall refer to both
Collocation Sites and BTS Sites, where appropriate. The Site Acquisition


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Services are more particularly described in and shall be performed by BTS
Company in accordance with the scope of work attached hereto as Schedule
"A" which is incorporated by reference herein ("Site Acquisition
Services"). BTS Company shall be entitled to compensation from Bright PCS
for the Site Acquisition Services as set forth on Schedule "C".


(b) Upon its receipt of a Search Ring designated hereunder by Bright
PCS, BTS Company shall promptly, diligently and professionally perform the
Site Acquisition Services with respect to such Search Ring. BTS Company
shall perform the Site Acquisition Services in accordance with this
Agreement, including, without limitation, the objectives and procedures set
forth in Schedule "A" ("Objectives and Procedures"). Provided that Bright
PCS does not materially increase BTS Company's duties or impair BTS
Company's rights hereunder, Bright PCS shall have the right from time to
time upon written notice to BTS Company to adjust, modify, or supplement
the Objectives and Procedures and the form of documents to be generated or
provided by BTS Company pursuant thereto.


(c) Except as expressly authorized in this Agreement or otherwise
expressly authorized by Bright PCS in writing, BTS Company shall provide
all labor, equipment, material and supplies necessary or appropriate to
perform Site Acquisition Services. In the event that BTS Company elects to
subcontract any Site Acquisition Services, BTS Company shall obtain Bright
PCS's prior written consent to utilize such subcontractors, which consent
shall not be unreasonably conditioned, delayed or withheld.


(d) During the performance of Site Acquisition Services with respect
to any designated Search Ring, BTS Company shall at all times apprise
Bright PCS of any expressed opposition, protest, litigation or other
efforts, whether by an individual, group, neighborhood association or other
organization, to restrict, alter or prohibit the construction, installation
or operation of any structure, structures or other facilities that Bright
PCS or BTS Company proposes to construct or operate on any Site within such
Search Ring.


2.2 WITHDRAWAL OF SITE. In the event Bright PCS elects to withdraw a Collocation Site at any time or a BTS Site pursuant to the terms of this Agreement, Bright PCS shall give BTS Company notice of such withdrawal and shall pay BTS Company [***] of the milestone instrument that would be due if the work currently in progress was completed, [***] of the reimbursable costs which were incurred prior to the date on which BTS Company receives notice of the withdrawn Site, and [***] of all other amounts due hereunder for work completed on the Site as of the date BTS Company receives Bright PCS's withdrawal notice and substitute the withdrawn Site with an alternative site within sixty (60) days ("Alternative Site"), if available. In the event that a withdrawn Site is a BTS Site, Bright PCS shall pay BTS Company for Site Acquisition Services in connection with such Site as set forth in Schedule "C" attached hereto.


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[***] - CONFIDENTIAL TREATMENT REQUESTED


2.3 SEARCH RINGS DESIGN. Bright PCS shall have the right at any time in its sole and absolute discretion to expand or reconfigure a previously designated Search Ring. In the event that Bright PCS redesigns a search ring beyond [***] miles of an urban or suburban Site or [***] miles of a rural Site for which BTS Company has begun but not yet completed all Site Acquisition Services, then Bright PCS shall pay BTS Company [***] for all Site Acquisition Services completed at the time that the notice of redesign is received by BTS Company, [***] of the reimbursable costs which were incurred prior to the date on which BTS Company receives notice of such reconfigured Search Ring, and [***] of the milestone installment that would be due if the work currently in progress was completed. In the event that such Site was a BTS Site, Bright PCS shall pay BTS Company for such Site Acquisition Services as set forth on Schedule "C". For all Site Acquisition Services rendered for the redesigned Search Ring, in the event that the Site in the redesigned Search Ring is not a BTS Site, Bright PCS shall pay BTS Company an additional [***] of the milestone installments due for all milestone installments to be performed and [***] of all milestone installments to be performed for the first time and [***] of the reimbursable costs which are incurred. Bright PCS agrees not to develop any site within any redesigned or withdrawn Search Rings as a tower site and further agrees not to transfer the associated Work Product to any third party, including Affiliates.


2.4 TERM OF SITE ACQUISITION SERVICES AGREEMENT. The term of this Agreement (the "Site Acquisition Term") shall commence on the date of this Agreement and shall expire on December 31, 2001.


(a) This Agreement may be terminated as to any particular Search Ring
upon written notice by either party following the other party's breach of
an obligation or covenant on such party's part to be performed with respect
to that Search Ring, which breach is not cured within thirty (30) days
after the breaching party's receipt of written notice; provided, however,
that so long as the defaulting party commenced appropriate curative action
within such thirty (30) day period and thereafter diligently prosecutes
such cure to completion as promptly as possible, the cure period will be
extended until the cure is completed. If a party fails to cure a breach
within this thirty (30) day period as it may be extended, the party will be
in default under this Agreement as it applies to the applicable Search
Ring; and


(b) Neither a termination nor the expiration of this Agreement shall
affect:


(i) the term of the MSA or any SLA, as that term is defined
herein, which has been entered into by the parties prior to the date
of termination of this Agreement, which shall continue in accordance
with its terms and conditions;


(ii) the terms of this Agreement that apply to any SLA which has
been entered into by the parties prior to the date of termination of
this Agreement;


(iii) any duties or obligations for payment or performance that
are or become owing hereunder prior to the effective date of such
termination;


(iv) the terms of this Agreement that apply to any Search Ring
which was issued prior to the date of termination of this Agreement;
or


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[***] - CONFIDENTIAL TREATMENT REQUESTED


(v) any other duties or obligations that expressly survive the
termination or expiration hereof.


(c) A default regarding one Search Ring shall not constitute a default
under this Agreement; however, a default under the greater of [***] Search
Rings; or [***] or more of the Search Rings which have been issued pursuant
to this Agreement, shall constitute a default under every Search Ring and a
default under this Agreement. In the event of such a default, Bright PCS
shall be entitled to terminate the services of BTS Company and complete or
engage a third party to complete BTS Company's responsibilities under this
Agreement pursuant to the Plans and Specifications (as hereinafter defined)
provided by BTS Company. In such event, Bright PCS shall convey the Tower
Facilities (as hereinafter defined) and any site development materials
including ground leases and title, environmental and geotechnical reports
to BTS Company upon completion, lien free, and BTS Company shall reimburse
Bright PCS for the reasonable costs of completing its responsibilities and
pay Bright PCS the applicable site development fee set forth in the Site
Development Agreement (as hereinafter defined).


2.5 GROUND LEASES. The acquisition of BTS Sites by BTS Company pursuant to this Agreement shall be accomplished using a lease agreement in substantially the same form as the Option and Lease Agreement which is attached hereto as Exhibit "B" (hereafter the "Ground Lease"). In no event shall BTS Company agree to material modifications to the provisions set forth in paragraph 35 of the Ground Lease without Bright PCS's prior written approval. The acquisition of Collocation Sites by BTS Company pursuant to this Agreement shall be accomplished using a lease agreement which Bright PCS shall provide to BTS Company or on such other form which Bright PCS may, in its sole discretion, approve.


2.6. ACCEPTANCE AND REJECTION OF COLLOCATION SITES. Bright PCS may at any time in its sole and absolute discretion accept or reject any proposed Collocation Site. Without limiting the foregoing, Bright PCS may withdraw its prior acceptance of a Collocation Site and thereby reject such Collocation Site. A withdrawal or a rejection by Bright PCS of a Collocation Site shall not affect its obligation for fees earned through the date of termination for Site Acquisition Services as more particularly described in Section 2.2.


2.7 ACCEPTANCE AND REJECTION OF BTS SITES; EXECUTION AND DELIVERY OF SLAS


(a) A BTS Site shall be deemed to be an accepted BTS Site from and
after the date that the Candidate Site which corresponds to the BTS Site
has been approved by Bright PCS pursuant to Section 2(a) of Schedule A and
shall continue to be deemed an accepted BTS Site unless and until Bright
PCS rejects the BTS Site pursuant to Section 2.7(b) hereof.


(b) Bright PCS may at any time prior to the parties' execution and
delivery of an SLA corresponding thereto, and in Bright PCS's sole and
absolute discretion, reject any BTS Site. In the case of a BTS Site that is
accepted by Bright PCS, the following shall apply:


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(i) BTS Company shall continue the diligent, thorough and
professional prosecution of Site Acquisition Services (including the
completion of Ground Lease negotiations and required zoning, land use
and permitting matters) necessary for the construction of a
communications tower and related facilities consistent with the
criteria theretofore identified by Bright PCS;


(ii) Subject to Section 2.7(b)(iii) below, BTS Company and Bright
PCS shall prepare and finalize the SLA (and exhibits thereto)
applicable to such BTS Site;


(iii) Within thirty (30) days following BTS Company's receipt of
all necessary zoning or other land use permits or approvals applicable
to the improvements to be constructed by BTS Company on the BTS Site
and the completion of Site Acquisition Services in accordance with the
Objectives and Procedures, but subject to Section 2.7(b)(iv) below,
Bright PCS and BTS Company shall execute and deliver the SLA
applicable thereto. Unless Bright PCS rejects the applicable BTS Site
within thirty (30) days following notice by BTS Company of BTS
Company's receipt of all necessary zoning or other land use permits or
approvals applicable to the landlord improvements to be constructed by
BTS Company on the BTS Site and BTS Company's completion of Site
Acquisition Services in accordance with the Objectives and Procedures,
BTS Company shall be unconditionally obligated to enter into the SLA
with respect thereto upon receipt of the foregoing permits and
approvals, and shall thereafter perform its obligations thereunder in
accordance with the SLA and this Agreement. Notwithstanding any
provision of this Agreement to the contrary, in the event that Bright
PCS neither accepts nor rejects the BTS Site within thirty days as
provided herein, BTS Company may, at BTS Company's sole option, either
(1) deem the BTS Site approved (in which event BTS Company shall be
entitled to compel Bright PCS to execute a SLA with respect to the BTS
Site) or (2) deem the BTS Site to be denied and make demand on Bright
PCS for payment of the fees earned for Site Acquisition Services.


(iv) Bright PCS may in its sole and absolute discretion withdraw
its prior acceptance of a BTS Site, and thereby reject said BTS Site,
at any time prior to the BTS Company parties' execution and delivery
of the SLA for such BTS Site.


(c) In the event of a rejection by Bright PCS of a BTS Site, including
a rejection after a prior acceptance thereof as described above in Section
2.7(b) hereof, Bright PCS's only obligation for such BTS Site shall be for
the payment of Site Acquisition Services incurred prior to such rejection
with respect to the Search Ring containing such BTS Site in accordance with
Section 2.2. In such event, Bright PCS agrees not to develop the rejected
BTS Site as a tower site and further agrees not to transfer the associated
Work Product to any third party, including Affiliates.


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(d) In the event of a rejection by Bright PCS of a BTS Site, BTS
Company may elect to forego the compensation set forth in Section 2.2 and
retain the Work Product. In such event, Bright PCS shall have the right,
but not the obligation, for a period of one (1) year following the
construction of a tower on such Site to enter into an SLA for such Site
pursuant to the MSA as if such Site were constructed as an accepted BTS
Site.


(e) This Section 2.7 shall not be deemed to limit or restrict any
rights of termination of an SLA as expressly set forth therein. Bright
PCS's rights of rejection with respect to a BTS Site contained in this
Section 2.7 shall be in addition to, and not in lieu of, any SLA
termination rights.


(f) In the event that BTS Company's due diligence investigation of a
BTS Site reveals any defect in such Site which BTS Company reasonably
believes would materially adversely affect BTS Company's multi-tenant use
or ownership of such Site, BTS Company shall be entitled to reject such
Site upon notice to Bright PCS. In such event, Bright PCS shall have the
right to designate another candidate site as the preferred candidate. BTS
Company shall bear all costs associated with Site Acquisition Activities
and all costs associated with the due diligence investigation, zoning, and
permitting of such Site.


2.8 CONTINUED PERFORMANCE OF SITE ACQUISITION SERVICES FOLLOWING SITE ACCEPTANCE OR REJECTION. Unless otherwise notified by Bright PCS, BTS Company shall:


(a) Following Bright PCS's acceptance of any Site, continue to perform
Site Acquisition Services with respect to such accepted Site in accordance
with this Agreement, including, without limitation, the Objectives and
Procedures; and


(b) Following Bright PCS's rejection of any Site (including a
rejection after Bright PCS's prior acceptance thereof), continue to perform
Site Acquisition Services with respect to the Search Ring pertaining
thereto (including a modified Search Ring as described above in Section 2.3
hereof) in accordance with the terms and conditions of this Agreement,
including, without limitation, the Objectives and Procedures.


2.9 NO CONFLICTING OBLIGATIONS.


(a) Neither BTS Company nor any Affiliate of BTS Company shall
hereafter during the Site Acquisition Term enter into any agreement,
contract or other arrangement with any Competitor other than Horizon
Personal Communications Services, Inc. For purposes of this Agreement,
"Competitor" shall mean an entity whose business includes the provision of
wireless telecommunications services to the public pursuant to which BTS
Company or any Affiliate of BTS Company agrees to provide to or on behalf
of such Competitor site acquisition services that: (i) may result in the
leasing (or other acquisition) of real property and the construction
thereon by BTS Company or such Affiliate of a wireless communications


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facility designed to meet such Competitor's specifications and (ii) affect
or may affect any real property located within a Search Ring. BTS Company
shall provide to Bright PCS during the Site Acquisition Term BTS Company's
primary duty of loyalty and professionalism in the performance within the
geographic area of Site Acquisition Services hereunder. BTS Company shall
not perform, or undertake to perform, any services that would conflict with
BTS Company's loyal, professional and diligent performance of its duties
hereunder. The foregoing provisions of this Section 2.9(a) shall not apply
if BTS Company notifies Bright PCS of a preexisting conflict upon BTS
Company's receipt of a Search Ring, nor will it apply to a Search Ring
after BTS Company has completed construction of a BTS Site within such
Search Ring.


(b) In the course of performing Site Acquisition Services or otherwise
in conducting its activities under or with respect to this Agreement or any
SLA, BTS Company shall not publish or distribute any materials or
documentation using Bright PCS's name without Bright PCS's express prior
written permission specifically relating to such use; provided, however,
that BTS Company shall be entitled to utilize Bright PCS's name where
reasonably necessary to facilitate zoning and other governmental approvals.


2.10 COMPLIANCE WITH LAWS. BTS Company represents and warrants that it shall: (a) comply with all federal, state and local laws, regulations and ordinances with respect to its performance of the Site Acquisition Services; (b) file all reports relating to the Site Acquisition Services and required under applicable law (including, without limitation, tax returns); (c) pay all filing fees and federal, state and local taxes applicable to BTS Company's business as the same shall become due; and (d) pay all amounts required under local, state and federal workers' compensation, disability benefit, unemployment insurance, and other employee benefit laws and regulations when due. BTS Company shall provide Bright PCS with such documents and other supporting materials as Bright PCS may reasonably request to evidence BTS Company's continuing compliance with this Section 2.10.


2.11 INSURANCE. BTS Company and Bright PCS shall each maintain in effect, without interruption, on an annual basis, during the term of this Agreement, the following insurance policies:


(a) Commercial General Liability (Bodily Injury and Property Damage).
Insurance coverage with endorsement evidencing coverage for contractual
liability. The limits of this insurance shall not be less than:


(i) Each Occurrence Limit $1,000,000


(ii) General Aggregate Limit $2,000,000


(b) Comprehensive Automobile Liability insurance covering the
ownership, operation and maintenance of allowed, non-owed, and hired motor
vehicles, in limits not less than $1,000,000 for bodily injury and property
damage per occurrence.


(c) Worker's Compensation Insurance with statutory limits and
Employer's Liability Insurance with limits of not less than $1,000,000 for
each accident.


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(d) Professional Liability (errors and omissions) insurance of not
less than $1,000,000 for each occurrence, with endorsement evidencing
coverage for contractual liability.


(e) All foregoing insurance shall provide for an effective date no
later than the Effective Date of this Agreement. Bright PCS and BTS Compan ...