Build-to-suit Agreement Dated June 29, 2001

BUILD-TO-SUIT AGREEMENT


This Build-To-Suit Agreement (the "Agreement") is made as of this 29 day of June, 2001 (the "Effective Date"), by and between Conestoga Enterprises, Inc., a Pennsylvania corporation, on behalf of itself and its wholly-owned subsidiaries, Conestoga Mobile Systems, Inc., a Pennsylvania corporation, and Conestoga Wireless Company, a Pennsylvania corporation, (hereinafter collectively referred to as "Conestoga"), with offices located at 661 Moore Road, Suite 110, King of Prussia, Pennsylvania, and MOUNTAIN UNION TELECOM, LLC, a Delaware limited liability company (hereinafter referred to as "Mountain Union"), with offices located at 301 N. Fairfax Street, Suite 101, Alexandria, VA 22314.


RECITALS


WHEREAS, Mountain Union is in the business of identifying, acquiring, constructing and maintaining sites (collectively the "Sites", and individually a "Site") on which it operates and maintains radio and communications towers, buildings, and related equipment; and


WHEREAS, Mountain Union, in connection with its construction of communications towers, enters into license agreements with various tenants to utilize space thereon; and


WHEREAS, Conestoga Wireless Company ("CWC") has been licensed by the Federal Communications Commission ("FCC") to provide certain wireless services in ten (10) counties located in eastern and central Pennsylvania. In connection therewith, Conestoga desires that, pursuant to the terms of this Agreement, Mountain Union identify, acquire, and construct communications towers upon which Conestoga will locate certain wireless equipment and facilities pursuant to the terms of license agreements to be executed by Conestoga and Mountain Union; and


WHEREAS, the parties are entering into this Agreement in conjunction with, and as an integral part of, the closing of the transactions contemplated by that certain Asset Acquisition Agreement dated as of March 15, 2001 by and between, among others, the parties hereto (the "Asset Acquisition Agreement"); and


WHEREAS, as a material inducement to Mountain Union's agreement to enter into the transactions contemplated by this Agreement and the Asset Acquisition Agreement, Conestoga has entered into the Conestoga Minimum Tower Commitment as defined in this Agreement.


AGREEMENT


NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises, covenants and conditions contained herein, as well as other good and valuable consideration, the receipt, adequacy, and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:


1. Definitions.


(a) Notwithstanding the meaning ascribed to it in the Asset Acquisition Agreement, as used herein, a "Collocation Tower" means a tower within an Active Search Ring, as defined in Section 4(b) hereof, that is located on real estate zoned (whether prior to or during the Term of this Agreement and whether by zoning classification, variance, or otherwise) to permit the construction and operation of a communications tower with a capacity for use by not less than four (4) FCC-licensed broadband carriers, one of which shall be CWC;


(b) The "Conestoga Minimum Tower Commitment" has the meaning ascribed to it in Section 7.


(c) As used herein, the "Territory" means the counties within the State of Pennsylvania in which CWC is licensed or becomes licensed during the Term of this Agreement to operate its PCS Business, as defined in the Asset Acquisition Agreement. As of the Effective Date, the "Territory" consists of the ten (10) counties in eastern and central Pennsylvania identified on Exhibit "D" hereto.


(d) As used herein, "Site" means a tower, including its equipment, improvements, and the real estate on which it is located.


(e) As used herein, "Tower" means a tower constructed (or acquired, as the case may be), maintained and operated by Mountain Union pursuant to the terms of this Agreement. "Tower" includes, but is not limited to, a "Collocation Tower" as defined in Section 1(a) above.


2. Incorporation of Recitals and Exhibits; Exclusivity/Right of First Refusal.


(a) The above recitals are true and correct and, together with all Exhibits referenced in this Agreement, are hereby incorporated herein and made a part hereof.


(b) During the Term of this Agreement, as defined below, and any renewal(s) thereof, Conestoga shall exclusively refer all of its requirements for new towers and related facilities required for the build out of its Personal Communications Services ("PCS") network in the Territory to Mountain Union and shall be prohibited from becoming a tenant on any tower owned or operated by any tower company other than Mountain Union in the Territory to the extent that such tenancy would involve or require Conestoga to support or otherwise be involved in the application of the tower company for any zoning, planning, permitting, or other approval in the Territory. In addition, Conestoga shall refer its tower requirements in the Territory to Mountain Union during the period commencing on the Effective Date of the Asset Acquisition Agreement through and including the closing of the transactions thereunder provided, however, that the parties first execute a Confidentiality Agreement in both form and substance mutually acceptable to the parties pursuant to which Mountain Union will agree to treat such requirements as the confidential information of Conestoga pursuant to the terms thereof in the event that the transactions contemplated in the Asset Acquisition Agreement do not close pursuant thereto. If Mountain Union declines the opportunity to build or purchase any such Tower(s) in writing pursuant to the terms of this Agreement (a "Declination" hereunder), then Conestoga may, thereafter, have such tower(s) constructed on Conestoga's behalf for its use and ownership thereof (collectively, the "New


Conestoga Towers"). Mountain Union shall have the right of first refusal to purchase the New Conestoga Tower(s) pursuant to the terms set forth in Section 8 of this Agreement. The parties agree and acknowledge that during the Term of this Agreement and any renewal(s) thereof, Conestoga shall be prohibited from entering into any agreement of any kind or nature with a third party pursuant to which such third party (or an assignee or designee thereof) would construct a tower(s) (including, without limitation, Collocation Tower(s) and/or related facility(s)) for Conestoga's use in the Territory to the extent that such tower(s)/related facility(s) would be owned and/or operated by any third party following the completion of the same, unless prior to the commencement of the construction -thereof, all of the following have occurred:


(i) Conestoga has referred its requirements for such tower to Mountain Union pursuant to the terms of this Agreement; and


(ii) Mountain Union has declined the opportunity to build such tower as provided in Section 4(b) below after Mountain Union's receipt and rejection of the Search Ring submitted by Conestoga; and


(iii) Conestoga has given Mountain Union not less than ten (10) business days prior written notice of its intention to have such third party construct or acquire such Tower; and


(iv) Conestoga's tenancy on the tower will not require Conestoga, during the Term of this Agreement, to support or otherwise be involved in any tower company's (other than Mountain Union) application for zoning, planning, permitting, or other approvals for a Site to be owned or operated by such tower company.


In the event that during the Term of this Agreement a Site is built or acquired by Conestoga pursuant to the terms of this Section 2(b), Conestoga reserves the right to hire a contractor of its choice to install and maintain all of Conestoga's equipment at such Site(s).


3. Term of Agreement.


(a) This Agreement shall commence on the Effective Date, and shall, unless earlier terminated pursuant to the terms hereof, continue through and including the date which is three (3) years thereafter (the "Term"). In the event that Mountain Union has substantially complied with its obligations hereunder, the parties will, not later than thirty (30) days prior to the end of the Term hereof, negotiate in good faith with respect to the renewal of this Agreement.


(b) Upon the occurrence of an Event of Default, as defined in Section 10 hereof, this Agreement may be terminated immediately by the non-defaulting party upon written notice to the defaulting party.


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


(i) The term of any Site License (as defined in Section 6 hereof) entered into by the parties, which shall continue in accordance with its terms and conditions;


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


(iii) any other duties or obligations that expressly survive the termination or expiration hereof; and


(iv) any obligations, covenants, representations, and warranties under the Asset Acquisition Agreement that survive the expiration or earlier termination thereof.


4. Designation of Search Ring.


(a) From time to time during the Term, Conestoga shall identify in writing for Mountain Union Search Rings (as defined herein) within which Conestoga desires to locate wireless telecommunications antennae and related equipment. The parties agree that not later than the Closing Date set forth in Section 2.10 of the Asset Acquisition Agreement Conestoga shall provide to Mountain Union all Search Rings designated by Conestoga as of such date (collectively, the "Batch Search Ring Submission"). Each Search Ring submitted to Mountain Union by Conestoga shall include the following: (i) a map, topographical drawing, or other rendering, and general latitude and longitude information sufficiently describing the geographic area constituting the Search Ring; (ii) the applicable number or other specified means of designation by which Conestoga identifies the Ring; and (iii) the type and desired number of antennas Conestoga desires to install, the desired mounting height thereof, and any other technical data needed by Mountain Union to evaluate the viability of the Search Ring Request. As used herein, "Search Ring" means a geographic area within the Territory created by Conestoga RF engineer(s) with close attention to technical feasibility, and which shall have the radius designated by CWC (in its commercially reasonable discretion) as being necessary for the deployment of CWC's PCS system. Provided that such are known to Conestoga, each Search Ring shall identify any existing, fully-constructed towers or other communications facilities in operation and readily available for use by CWC in connection with the deployment of its PCS system as of the date of Conestoga's submission of the Search Ring to Mountain Union (each, an "Existing Communications Facility" herein). Nothing in this Agreement shall be construed as prohibiting Conestoga from independently pursuing a collocation opportunity on an Existing Communications Facility provided that Conestoga informs Mountain Union of such election in writing. As part of its submission of each Search Ring to Mountain Union, Conestoga shall use good faith efforts to identify for Mountain Union potentially viable existing structures (for example, buildings, water towers, and the like) that may be used for tower collocation opportunities in the given geographic area.


(b) Within a commercially reasonable time after Mountain Union's receipt of Conestoga's Batch Search Ring Submission, Mountain Union shall, pursuant to the terms of this paragraph, accept or decline the Site location opportunity within each Search Ring that is a part of such submission. Thereafter (and provided that not more three (3) Search Rings are delivered by Conestoga within a given calendar week, in which case Mountain Union shall have a commercially reasonable period of time in which to respond), Mountain Union shall, pursuant to the terms of this paragraph, accept or decline the Site location opportunity within each Search Ring within ten (10) business days after its receipt thereof. In determining whether to accept or reject a Search Ring, Mountain Union shall utilize the "Search Ring Evaluation Criteria" set forth in Exhibit "E" hereto, and shall act in good faith (not


arbitrarily or capriciously) in applying such criteria to each Search Ring submitted by Conestoga. In the event that Mountain Union accepts the Search Ring (an "Active Search Ring" herein) in writing, Mountain Union will perform the Tower Development Services that are the subject of this Agreement with respect thereto. The parties agree and acknowledge that if Mountain Union's Search Ring acceptance notice identifies a Potential Site as being viable for the construction or acquisition of a Collocation Tower (as defined in Section 1(a) above) such determination shall be binding on Mountain Union in the event that (i) the Site is zoned to allow the construction of a Collocation Tower either prior to or during the Term of this Agreement, and (ii) a Tower is constructed or acquired by Mountain Union on the Site pursuant to the terms of this Agreement, whether or not such Tower is a Collocation Tower. In the event that Mountain Union declines the Search Ring after evaluating the Search Ring in accordance with the requirements of this paragraph and the Search Ring Evaluation Criteria, and Conestoga, within two (2) years after its initial tendering of the Search Ring to Mountain Union, constructs (or has constructed) a tower(s) therein, Mountain Union shall have the right of first refusal to purchase such tower(s) pursuant to the terms of Section 8 below.


5. Tower Development Services. Mountain Union shall perform the following services (the "Tower Development Services" or the "Services" herein) for each Active Search Ring:


(a) Phase I Services. Within a commercially reasonable time (which time shall not exceed forty-five (45) business days) after its acceptance of any Search Ring that is a part of Conestoga's Batch Search Ring Submission, Mountain Union shall, for each such Active Search Ring, identify for Conestoga in writing: (i) the location of at least three (3) potential Site(s) within the Active Search Ring (each, a "Potential Site"), together with the address, latitude, longitude and ground elevation thereof; (ii) a photo of each Potential Site; and (iii) the property zoning designation applicable to each Potential Site (collectively, the "Phase I Data"). Within a commercially reasonable time after its receipt of the Phase I Data for the Search Rings that are a part of the Batch Search Ring Submission, Conestoga shall inform Mountain Union in writing as to whether it accepts or rejects the Potential Site(s) ("Site Acceptance Notice"). With respect to Search Rings submitted to Mountain Union on an individual basis, within ten (10) business days after its acceptance of a Search Ring, Mountain Union shall identify the requisite Phase I Data therefor in writing. With respect to such individually submitted Search Rings, Conestoga shall provide the Site Acceptance Notice to Mountain Union not later than ten (10) business days after its receipt of the Phase I Data therefor. In the event that Conestoga accepts a Potential Site, Mountain Union shall promptly commence the performance of Phase II Services with respect thereto.


(b) Phase II Services. Within a commercially reasonable period of time after it receives a Site Acceptance Notice pertaining to a Potential Site that resulted from Conestoga's Batch Search Ring Submission, and upon receipt of the Testing Data from Conestoga, Mountain Union shall obtain permission from the owner of the Potential Site for drive testing and/or site visits ("Initial Site Tests") and provide Conestoga with such other information and documentation as may be reasonably requested by Conestoga with respect to the Initial Site Tests. For Site Acceptance Notices received by Conestoga on an individual basis, Mountain Union shall, within ten (10) business days after it receives the Site Acceptance Notice and the relevant Testing Data from Conestoga, obtain the requisite authorization from the Potential Site Owner for the Initial Site Test pertaining thereto. As used herein, "Testing Data" means: (i) requested dates and times for the performance of the


Initial Site Tests; (ii) the proposed scope of the testing (as determined by Conestoga in its commercially reasonable discretion); (iii) the power requirements applicable to the Initial Site Tests; (iv) the execution of all documents required by the Potential Site owner with respect to the Initial Site Tests; and (v) making the appropriate personnel available to participate in the Initial Site Tests with Mountain Union. Mountain Union shall, in conjunction with Conestoga ...