Master Build to Suit & Lease Agreement

MASTER BUILD TO SUIT AND LEASE AGREEMENT



THIS MASTER BUILD TO SUIT AND LEASE AGREEMENT ("Master Lease" or "Agreement") is made and entered into by and between TRITEL COMMUNICATIONS, INC. ("Tritel") and SPECTRASITE COMMUNICATIONS, INC. ("SpectraSite").



WHEREAS, Tritel has licenses to provide personal communications service ("PCS") in the states of Alabama, Florida, Mississippi, Tennessee, Kentucky and any additional state or markets in which Tritel obtains a license to provide PCS ("Tritel Markets");



WHEREAS, Tritel requires that in certain instances towers and related facilities be developed for the installation of antennas, equipment cabinets, cabling and related equipment;



WHEREAS, Tritel also requires that parcels of real property together with easements for ingress, egress and utilities to those properties be acquired for the construction of the towers and related facilities;



WHEREAS, Tritel has previously engaged SpectraSite and other companies to acquire parcels of real property to be leased or purchased by Tritel;



WHEREAS, Tritel desires to assign to SpectraSite certain of those leases and for SpectraSite to construct facilities on the sites and/or to have SpectraSite lease or purchase designated parcels of property to construct structures for the operation of a wireless or telecommunications facility.



WHEREAS, Tritel desires to lease space on the facilities from SpectraSite.



NOW THEREFORE, Tritel and SpectraSite do hereby agree as follows:



I. GRANT OF RIGHTS; ASSIGNMENT AND

ASSUMPTION OF PRIME LEASES AND SUBLEASING



1.1 (a) GRANT. Tritel grants SpectraSite the nonexclusive right to develop, construct and lease those sites in the Tritel Markets which involve the construction of towers and related facilities ("Tower Sites") upon the terms and conditions of this Master Lease. SpectraSite acknowledges and agrees that the right to develop, construct and lease the Tower Sites is not an exclusive right and that Tritel may grant similar rights to other parties; provided, however, that Tritel agrees that it shall grant to SpectraSite the right to develop a minimum number of Tower Sites for each Tritel Market (as defined below) if set forth in a schedule to Attachment VII to this Agreement.



(b) APPLICATION.



(i) NOTICE. In the event that Tritel identifies a Tower Site or search ring where it intends to place, develop and construct a tower, and Tritel intends to grant to SpectraSite the right to develop, construct and lease such Tower Site, Tritel shall give SpectraSite notice of the Tower Site, and such Tower Site shall hereinafter be referred to as the Applicable Tower Site.



(A) Notice of Search Ring. In the event that Tritel has issued a search ring for the Applicable Tower Site, but has not obtained a lease, contract, option or other right to lease the property for





the Applicable Tower Site, Tritel shall notify SpectraSite in writing of the parameters of the search ring for the Applicable Tower Site (the "Search Ring Notice").



(B) NOTICE OF LEASE. In the event that Tritel has obtained an option, lease, contract or other right to lease the property for the Applicable Tower Site, Tritel shall notify SpectraSite in writing of and deliver to SpectraSite a complete copy of the lease, option, contract or other right to lease the property for the Applicable Tower Site (the "Lease Notice").



(C) NOTICE OF BUILDING PERMIT. In the event that Tritel has obtained a lease, contract, option or other right to lease property for an Applicable Tower Site and is preparing to apply for a building permit for the Applicable Tower Site, Tritel shall notify SpectraSite in writing on or before ten (10) days prior to the date that Tritel intends to make application for a building permit for Applicable Tower Site (the "Building Permit Notice") (the Search Ring Notice, the Lease Notice and the Building Permit Notice shall be collectively referred to as the "Notice of Applicable Tower Site").



(D) OBLIGATION TO GIVE NOTICE. Notwithstanding paragraphs 1.2(b)(i)(A), (B) and (C), Tritel shall not be obligated to provide Spectrasite the Notice of applicable Tower Site until ten (10) days prior to the date that Tritel intends to make application for a building permit for the applicable tower site, provided however, Tritel may elect to provide Spectrasite Notice of the Applicable Tower Site pursuant to 1.1(b)(i)(A) or 1.1(b)(i)(B) above.



(ii) ACCEPTANCE OR REJECTION OF APPLICABLE TOWER SITE. SpectraSite shall have a period of twenty (20) days (the "Application Period") from the date of the Notice of Applicable Tower Site to accept (in the event of acceptance, the "Notice of Acceptance") or reject in writing any such Applicable Tower Site because of any characteristics associated with the Applicable Tower Site which would in the reasonable opinion of SpectraSite adversely impact the development or ownership of the Applicable Tower Site. In the event that SpectraSite does not accept or reject the Applicable Tower Site within such twenty (20) day period, SpectraSite shall be deemed to have rejected such Applicable Tower Site. In the event that SpectraSite rejects or does not accept any Applicable Tower Site, SpectraSite shall have no right to require an assignment of the Prime Lease (as hereinafter defined) or obligation to develop the Applicable Tower Site and Tritel shall have no further obligation to SpectraSite in regards to the Applicable Tower Site under the terms of this Agreement.



(c) DUE DILIGENCE. During the (i) Application Period; and (ii) in the event that SpectraSite provides Tritel with a Notice of Acceptance upon the Applicable Tower Site, during the period between the Application Period and the Commencement Date of the applicable SLA; and (iii) during the term of the applicable SLA (hereinafter defined), provided that SpectraSite has assumed the Prime Lease, if applicable, and entered into an SLA with Tritel: Tritel shall make available to SpectraSite such information as SpectraSite may reasonably require about the Applicable Tower Site which information shall include but shall not be limited to (i) zoning permits and approvals, variances, building permits and such other federal, state or local governmental approvals which have been obtained or for which Tritel has made application; (ii) the construction, engineering and architectural drawings and related site plan and surveys pertaining to the construction of the Tower Facilities (hereinafter defined) on the entire portion of the property where the Applicable Tower Site will be located (the "Property" or the "Site"), which Property (or an interest therein) has been leased, licensed or otherwise obtained by Tritel, or will be obtained by SpectraSite, pursuant to a lease, option or other contract with the Owner (the "Prime Lessor") of the Property; (iii) the geotechnical report for the Property which has been commissioned by Tritel; (iv) the title reports, commitments for title insurance, ownership and encumbrance reports, title opinion letters, copies of instruments in the chain of title or any other information





which may have been produced regarding title to the Property and any and all easements for access, ingress, egress or utilities easements obtained or intended to be utilized for the Applicable Tower Site (the "Easements"); and (v) the environmental assessments including phase I reports and any reports relating to contemporaneous or subsequent intrusive testing, the " Federal Communication Commission Checklist" performed pursuant to National Environmental Protection Act requirements and any other information which may have been produced regarding the environmental condition of the Property, the Easements or neighboring real property. Tritel shall cooperate with SpectraSite in making reasonable modifications to the foregoing information at the request of SpectraSite. Upon execution of an SLA, Tritel shall assign and convey the foregoing to SpectraSite without warranty or representation.



(d) FEDERAL AVIATION ADMINISTRATION APPROVAL. Tritel shall not file with the Federal Aviation Administration ("FAA") any application, responses, approvals and registration numbers submitted or received with respect to any Applicable Tower Site without the prior approval of SpectraSite which approval shall not be unreasonably withheld, delayed or conditioned by SpectraSite.



(e) ASSIGNMENT AND ASSUMPTION OF PRIME LEASE, In the event that SpectraSite accepts the Applicable Tower Site for development pursuant to section 1. 1 of this Agreement, and Tritel has entered a Prime Lease with the Prime Lessor, Tritel shall assign to SpectraSite and SpectraSite shall assume and agree to be bound, by the "Prime Lease", together with the Easements to the Property and the relationship of the parties with regard to the Applicable Tower Site shall thereafter be governed by this Agreement. The form of the instrument by which Tritel assigns the Prime Lease and any Easements to SpectraSite shall be substantially the same form as that which is attached hereto as Attachment "I" ("Assignment"). The Assignment shall be executed by Tritel and SpectraSite in three (3) counterpart originals, and one original execution copy shall be delivered to Tritel and two (2) original execution copies shall be delivered to SpectraSite within five (5) days of the Notice of Acceptance. In addition thereto, Spectrasite and Tritel shall execute a Memorandum of Assignment in substantially the form of Attachment "II" to be recorded in the office of the property records in the County where the Property is located. The Memorandum of Assignment shall be executed and delivered to SpectraSite within five (5) days of the Notice of Acceptance. SpectraSite shall record the Memorandum of Assignment within ten (10) days of the Notice of Acceptance, and in any event prior to the commencement of construction of the Tower Facilities as commencement of construction is defined in any mechanics or materialman's lien statute in the state where the Property is located. In addition thereto, SpectraSite shall use its best efforts to obtain from the Prime Lessor, a release of Tritel from all liabilities under the Prime Lease and shall endeavor to include such release language in the Estoppel Certificate which is attached hereto as Attachment "III". SpectraSite shall and hereby agrees to hold Tritel harmless and indemnify Tritel from any and all claims, losses, obligations, damages, costs or expenses ever suffered, threatened or incurred by Tritel which claims, losses, obligations, damages, costs or expenses must be paid by Tritel to a third party (including without limitation, any lawyers, experts, engineers or similar professionals) or which Tritel may expend in defending itself against any claim threatened or made by a third party which arise out of any act or omission of SpectraSite under the Prime Lease, including without limitation, any default under the Prime Lease.



(f) COMPLETION OF PRE-DEVELOPMENT WORK. In the event that SpectraSite accepts the Applicable Tower Site prior to the time that a building permit has been issued for the Applicable Tower Site, SpectraSite shall obtain and be responsible and liable for the completion of all matters necessary to complete the construction of the Tower Facilities upon the Applicable Tower Site, including without limitation (i) obtaining zoning permits and approvals, variances, building permits and such other federal, state or local governmental approvals for the Applicable Tower Site; (ii) obtaining the construction, engineering and architectural drawings and related site plan and surveys pertaining to the construction of the Tower Facilities on





the Property (iii) obtaining the geotechnical report for the Property; (iv) obtaining the title reports, commitments for title insurance, ownership and encumbrance reports, title opinion letters, copies of instruments in the chain of title or any other information which may have been produced regarding title to the Property and the easements; and (v) obtaining the environmental assessments including phase I reports and any reports relating to contemporaneous or subsequent intrusive testing, the "Federal Communication Commission ("FCC") Checklist" performed pursuant to National Environmental Protection Act requirements and any other information which may be necessary to obtain permits and maintain licensing for the operation of a wireless communications facility upon the Applicable Tower Site (collectively the "Pre-Development Information"). SpectraSite shall make available to and deliver to Tritel copies of all of the Pre-Development Information prior to the execution of an SLA.



(g) ZONING AND GOVERNMENTAL APPROVALS. In the event that it is necessary to obtain or file any application, motion or appeal for zoning or governmental approvals, permits, or any other action necessary (the "Government Application") to obtain any federal, state, municipal or local governmental approval or permit (the "Government Approval") for the Applicable Tower Site and SpectraSite has accepted the Applicable Tower Site prior to the issuance of such Government Approvals, Tritel shall have the right to require SpectraSite to hire or use any witnesses, attorneys, consultants, lobbyists, public relations consultants, or parties which Tritel deems reasonably necessary to obtain the Governmental Approval. Tritel shall pay the cost of such consultants in the event the costs to obtain such Governmental Approval exceed $3,000.00 in the aggregate, excluding any attorney fees which might be incurred upon an appeal of an approval or denial of such Governmental Approval. Whenever reasonably practicable, SpectraSite shall consult with Tritel prior to filing any Government Applications and obtain Tritel's approval of such Government Applications, which approval shall not be unreasonably conditioned, delayed or withheld. SpectraSite shall provide Tritel with copies of all Governmental Applications and other documents filed by SpectraSite in obtaining any Governmental Approvals for each Site. In the event that Tritel desires to terminate, dismiss, withdraw, or otherwise cease the Government Application, Tritel shall have the right to do so and, if in the reasonable opinion of SpectraSite and SpectraSite's Counsel (in writing) such Government Application could have been approved, and SpectraSite does not construct or build a tower or similar facility upon the Property, Tritel shall reimburse SpectraSite for all fees and expenses incurred in connection with the Government Applications and the reasonable Pre-Development Costs for the Site.



(h) SITE LEASE AGREEMENT. (i) Tritel and SpectraSite shall execute two original execution copies of a Site Lease Agreement ("SLA") in substantially the form of the SLA attached hereto as Attachment IV and deliver such SLA to the other party within five (5) days of the Notice of Acceptance in the event that an application for a building permit has been submitted for the Applicable Tower Site and that all Pre-Development Information has been completed and delivered to Tritel, SpectraSite shall execute and deliver a Memorandum of SLA in substantially the form of the Memorandum of SLA attached hereto as Attachment V" contemporaneously with the execution and delivery of the SLA



(ii) In the event that the Notice of Acceptance has been received prior to the submission of an application for a building permit and the delivery of all Pre-Development Information to Tritel, Tritel and SpectraSite shall execute two original SLAs in substantially the form of the SLA attached hereto as Attachment IV and deliver such SLA to the other party with five (5) days of the delivery of notice to Tritel (the "Pre-Development Notice") that SpectraSite has delivered to Tritel all of the Pre-Development Information for the Applicable Tower Site





(iii) Contemporaneously with the execution and delivery of the SLA, Tritel shall execute and deliver a collocation application to SpectraSite in substantially the form of the collocation application attached hereto as Attachment "VI".



(iv) Tritel may refuse to execute and reject the SLA on any Applicable Tower Site because of any deficiency in the Pre-Development Information or any deficiencies which are disclosed in the Pre-Development Information, which Tritel did not obtain or prepare, including without limitation (A) exceptions to the title of the Property or the Easements, (B) deficiencies in the Plans and Specifications (hereinafter defined) (C) deficiencies in the geotechnical analysis or environmental assessments for the Property or any deficiencies regarding the condition of the Property; or (D) deficiencies in any requirements under the National Environmental Protection Act; (E) any deficiency in the SLA; or (F) any deficiency in the Prime Lease or the due authorization thereof. In the event that Tritel refuses to execute or rejects the SLA, Tritel shall have no obligation to execute an SLA or obligation to SpectraSite under this Master Lease in regards to the Applicable. Tower Site. In the event that Tritel refuses to execute an SLA and SpectraSite does not construct a tower upon the Applicable Tower Site, Tritel shall reimburse SpectraSite one-half of the Pre-Development Costs (hereinafter defined), which accrued or were incurred prior to SpectraSite's notice or knowledge of such deficiency in the Pre-Development Information, but in any event no more than $15,000.00 for the Pre-Development Costs for the Applicable Tower Site.



(v) Tritel shall be responsible for recording and bear the cost of recording the Memorandum of SLA.



II. DESIGN AND CONSTRUCTION OF TOWER FACILITIES



2.1 COVENANT TO CONSTRUCT. Construction of the Tower Facilities (hereinafter defined) shall be the responsibility and obligation of SpectraSite. SpectraSite shall be responsible for the costs and construction of the tower, foundations, and related facilities including concrete foundations, footings and slabs and fencing to be located upon the Applicable Tower Site ("Tower Facilities"). SpectraSite shall construct the Tower Facilities in accordance with and substantial compliance with the Plans and Specifications (hereinafter defined) and all rules, regulations, laws, and orders of any governing body, local, state or federal. SpectraSite shall obtain all necessary permits and approval of the Plans and Specifications from all applicable governmental agencies.



2.2 APPROVAL OF PLANS AND SPECIFICATIONS. (a) In the event that Tritel has obtained plans for the construction of ("Plans") and specifications for the construction of (the "Specifications") the Tower Facilities, Tritel shall deliver to SpectraSite the Plans and Specifications for the Tower Facilities within five (5) days of the complete execution of the Assignment. In the event that SpectraSite does not approve the Plans and Specifications or modifies the Plans and Specifications, SpectraSite shall deliver detailed written objections to the Plans and Specifications within five (5) days of the receipt of the Plans and Specifications or SpectraSite shall prepare and deliver to Tritel approval by Tritel three copies of any modifications to the Plans and Specifications. Any modifications to the Plans and Specifications for each Tower Facility shall be delivered to Tritel within ten (10) days of the delivery of the Plans and Specifications to SpectraSite. If no objection or modified Plans and Specifications are delivered to Tritel within the above-referenced time periods, the Plans and Specifications shall be deemed approved. Within five (5) business days after receipt of the modified Plans and Specifications, Tritel shall approve such modified Plans and Specifications or deliver to SpectraSite detailed written objections thereto. If Tritel fails to either affirmatively approve or disapprove the modifications to the Plans and Specifications proposed by SpectraSite within the five (5) day period, Tritel shall be deemed to have effectively approved the Plans and Specifications.





(b) In the event that Tritel has not obtained Plans and Specifications for the Tower Facility, SpectraSite shall have Plans and Specifications for the Tower Facility prepared, designed and delivered to Tritel within fifteen (15) days of the execution of the Assignment, or in the event there is no Assignment, within fifteen (15) days of the execution of the Prime Lease with the Prime Lessor, for Tritel's approval, which approval shall not be unreasonably withheld, delayed or conditioned. Within five (5) days of receipt of the Plans and Specifications, Tritel shall approve the Plans and Specifications or deliver to SpectraSite detailed objections thereto. If Tritel does not affirmatively approve or disapprove the Plans and Specifications within such five (5) day period, Tritel shall be deemed to have approved the Plans and Specifications.



(c) Notwithstanding the foregoing, in the event that any federal, state or local governmental body, requires SpectraSite or Tritel to modify the Plans and Specifications to obtain a Governmental Approval, Tritel or SpectraSite may modify the Plans and Specifications provided that the other party approves such modification, such approval not to be unreasonably withheld, delayed or conditioned.



2.3 PRE-DEVELOPMENT COSTS. As used herein, "Pre-Development Costs" shall include the cost of the site acquisition services, phase I environmental assessments, geotechnical analyses, designs, Plans and Specifications, including without limitation, construction plans, the cost incurred in obtaining any grants of easements for ingress, egress or utilities over real property owned by persons or entities other than the Prime Lessor under the Prime Lease , supplies, relevant travel expenses, fees or assessments imposed by local, state or federal governmental entities, recording fees and filing fees, fees of engineers, surveyors, architects, attorneys, brokerage commissions and others providing professional services ("Pre-Development Costs) SpectraSite shall reimburse Tritel for portions of these costs as specified in Attachment VII. A separate Schedule for Attachment VII shall be executed for each Tritel Market (as hereinafter defined) to define and set the rates, terms, rights, covenants and conditions and obligations regarding the Pre-Development Costs for each Market. Each Schedule (the "Schedule" or "Schedules") shall be signed and executed by Tritel and SpectraSite, and upon due execution and due authorization by each party, shall modify and amend the terms and conditions of this Master Lease and shall be incorporated into this Master Lease and shall be governed by the terms, covenants and conditions of this Master Lease as though set forth herein word for word. In the event that no Schedule is negotiated for a specific Market and SpectraSite commences construction of a Tower Facility in such Market, Tritel and SpectraSite shall divide the Pre-Development Costs equally.



2.4 COMMENCEMENT OF CONSTRUCTION. SpectraSite shall commence construction of the Tower Facility within twenty (20) days of the delivery of an SLA executed by Tritel to SpectraSite. SpectraSite shall make reasonable and diligent efforts to complete the construction of each individual Tower Facility within thirty-five (35) days after Tritel executes an SLA for the Site upon which the Tower Facility is to be constructed. SpectraSite shall have no obligation to commence construction of the Tower Facilities unless and until a SLA has been executed by Tritel for that Tower Site. The commencement of construction and the completion of construction of each Tower Facility shall be subject to delays from substantial labor disputes, fire, unusual delay in deliveries not caused by or contributed to by SpectraSite or its contractors, abnormal adverse weather conditions not reasonably anticipated, governmental actions or inactions, not caused or contributed to by SpectraSite or other unavoidable casualties or similar causes beyond reasonable control of SpectraSite or SpectraSite's contractor or for time needed to perform additional construction covered by any change order requested by Tritel. Notwithstanding the foregoing, Tritel and SpectraSite may negotiate and agree upon a different schedule for the completion of the Tower Facilities in each Tritel Market pursuant to and part of a Schedule attached hereto as a Schedule attached to Attachment VII.





2.5 SELECTION OF CONTRACTOR. Prior to the commencement of construction of a Tower Facility under this Agreement, SpectraSite shall provide Tritel with the names of the contractors it proposes to use for the construction of the Tower Facility. Tritel may, in its reasonable discretion and within five (5) business days of receipt of this information, object to the use of a specific contractor on a Tower Facility. Tritel may identify and choose any contractors or subcontractors for construction of any specific Tower Facility so long as Tritel submits the name of such contractor to SpectraSite on or before the date that Tritel executes the Assignment and the SLA for the applicable Tower Facility, and further provided that such contractor meets the financial, quality and delivery requirements and standards similar to or better than contractors which SpectraSite retains for the construction of other towers and sites.



2.6 MANNER OF CONSTRUCTION. (a) SpectraSite represents, warrants and agrees that the Tower Facilities shall be constructed in a good and workmanlike manner and in accordance with the Plans and Specifications and all applicable federal, state and local laws, ordinances, rules and regulations. SpectraSite warrants to Tritel that all materials furnished in connection with the construction of the Tower Facilities will be new unless otherwise specified, and of good quality, and that such construction will be of good quality in accordance with industry standards, free from faults and patent defects.



(b) SpectraSite shall supervise and direct the work on the Tower Facilities (the "Work"), using SpectraSite's best skill and attention. SpectraSite shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work on the Tower Facilities under this Agreement.



(c) Unless otherwise provided in this Agreement, SpectraSite shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.



(d) SpectraSite shall pay sales, consumer, use, and other similar taxes regarding the Tower Facilities, the construction and leasing thereof, and shall secure and pay for any permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work.



(e) SpectraSite shall keep the Tower Facilities and surrounding area free from accumulation of waste materials or rubbish caused by operations under this Agreement. At completion of the work SpectraSite shall remove from and about the Tower Facilities waste materials, rubbish, tools, construction equipment, machinery and surplus materials.



(f) SpectraSite shall provide Tritel (and its employees, agents and contractors) access to the Work in preparation and progress wherever located, provided that such access shall not interfere with the Work.



(g) SpectraSite shall pay all royalties and license fees; shall defend suits or claims for infringement of patent rights and shall hold Tritel harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by Tritel unless SpectraSite has reason to believe that there is an infringement of patent.



(h) SpectraSite shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Agreement. SpectraSite shall take





reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:



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