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., a Delaware corporation ("Carrier") and SBA TOWERS, INC., a Florida corporation ("Tower Company").



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



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



WHEREAS, Carrier 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, Carrier has acquired or leased parcels of real property for the operations of a wireless or telecommunications facility;



WHEREAS, Carrier desires to assign to Tower Company certain of those leases and for Tower Company to construct facilities on the sites;



WHEREAS, Carrier also desires for Tower Company to lease or purchase designated parcels of property when Carrier has not already leased such properties to construct towers or structures for the operation of a wireless or telecommunications facility;



WHEREAS, Carrier desires to lease space on the facilities from Tower Company when the towers or structures are completed.



NOW THEREFORE, for [CONFIDENTIAL TREATMENT REQUESTED] and other good and valuable consideration, the legal receipt and sufficiency of which is hereby mutually acknowledged and agreed to, Carrier and Tower Company do hereby agree as follows:



I. DEFINITIONS



1.1. DEFINED TERMS. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meaning (such meanings to be applicable equally to the singular and plural forms of such terms) unless the context otherwise requires:



"ASSIGNMENT" shall mean the assignment of the Ground Lease from Carrier to Tower Company.



"CARRIER" shall mean Tritel Communications, Inc.



"CARRIER'S EQUIPMENT" OR "CARRIER EQUIPMENT" shall mean the equipment that may be installed at the Site by Carrier which shall be described in the Schedule attached to Attachment "VI" for each Market.



"COMMENCEMENT DATE" shall mean the date when the initial term of each SLA shall commence and shall be the date which is the later of (i) the date that Tower Company completes installation of Carrier





Equipment on the Premises in the event that the Tower Company is installing Carrier's Equipment on the Premises or (ii) fifteen (15) days after Carrier has accepted the Tower Facilities pursuant to Paragraph 3.8, or (iii) in the event that Carrier has not accepted the Tower Facilities pursuant to Paragraph 3.8, fifteen (15) days after the date that the Tower Facilities are substantially complete and Carrier is able to operate the Carrier Equipment upon the Tower Facilities in compliance with all laws, rules and regulations. In the event that Carrier reasonably disputes Tower Company's assertion that all items on a Punchlist have been completed and the uncompleted item precludes Carrier's installation or operation of its equipment, the Commencement Date shall be the date on which such item has been completed to the reasonable satisfaction of Carrier.



"EASEMENTS" shall mean any and all easements for access, ingress, egress or utilities easements obtained or intended to be utilized for the Applicable Tower Site.



"FAA" shall mean the Federal Aviation Administration.



"FCC" shall mean the Federal Communications Commission.



"GROUND LEASE" shall mean the lease, option or other contract between the owner of the Property and Tower Company (or Carrier who will assign the lease to Tower Company) for the property where the Tower Facilities will be located.



"GROUND LESSOR" shall mean the owner of the fee simple interest or other interest in the entire portion of Property where the Tower Facility is to be located and the person who has entered into a ground lease with Tower Company (or Carrier who will assign the lease to Tower Company) for the lease of the entire Property for the location of a Tower Facility upon the Property.



"HAZARDOUS MATERIALS" shall mean any substance, chemical or waste identified as hazardous or toxic in any applicable federal, state or local law or regulation including, without limitation, petroleum or hydrocarbon based fuels such as diesel, propane or natural gas.



"MASTER LEASE" OR "AGREEMENT" shall mean this Master Build to Suit and Lease Agreement.



"MARKET" shall mean each market in which Tritel does business and shall be divided into and include each of the following markets and the term "Market" shall mean one of the following:



o Knoxville market which encompasses the Knoxville BTA o Chattanooga market which encompasses the Chattanooga BTAs o Nashville market which encompasses the Nashville BTAs, but excludes any Sites

located in the State of Kentucky o Birmingham market which encompasses the Birmingham BTAs o Huntsville Alabama market which encompasses the Huntsville BTAs o Mississippi market which encompasses the Memphis and Jackson BTAs o Kentucky market which encompasses the Louisville, Lexington and Evansville

BTAs and any other Sites located in the State of Kentucky o Montgomery, Alabama market which encompasses the Montgomery BTA



"MPE" shall mean Maximum Permissible Exposure.





"PCS" shall mean personal communications service.



"PLANS" shall mean plans for the construction of the Tower Facilities.



"PRE-DEVELOPMENT COSTS" shall mean the cost of developing the Site for the location, construction and operation of a Tower Facility upon the Site and shall include without limitation, the cost of the site acquisition. services, phase I environmental assessments, geotechnical analyses, title reports, title opinions, title commitments and title insurance, designs, Plans and Specifications, construction plans, the cost incurred in obtaining grants of easements, supplies, relevant travel expenses, fees or assessments imposed by local, state or federal governmental entities, recording fees and filing fees, reasonable fees of engineers, surveyors, architects, attorneys, brokerage commissions and others providing professional services.



"PRE-DEVELOPMENT INFORMATION" or "PRE-DEVELOPMENT MATERIALS" shall mean all items, reports, and matters necessary to complete the development and construction of the Tower Facilities upon the Applicable Tower Site, including without limitation (i) zoning permits and approvals, variances, building permits and such other federal, state or local governmental approvals for the Applicable Tower Site; (ii) the construction, engineering and architectural drawings and related site plan and surveys pertaining to the construction of the Tower Facilities on the Property (iii) the geotechnical report for the Property; (iv) a title report, commitment for title insurance, ownership and encumbrance report, title opinion letter, copies of instruments in the chain of title or any other information which may have been produced regarding the marketability of title and title to the Property and the easements; and (v) environmental assessments including phase I reports and a report relating to contemporaneous or subsequent intrusive testing, the "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.



"PRE-DEVELOPMENT NOTICE" shall mean notice that Tower Company has delivered to Carrier all of the Pre-Development Information for the Applicable Tower Site.



"PREMISES" shall mean the space occupied by Carrier's Equipment on each Tower Facility, the ground space adjacent to the Tower Facility where Carrier's Equipment is located, the Easements and all cabling, conduit, wires and utilities running to and from the Tower Facility and to and from Carrier's Equipment for each Applicable Tower Site as defined in each SLA.



"PROPERTY" OR "SITE" shall mean the entire portion of property where the Applicable Tower Site will be located which property is being leased from Ground Lessor.



"PUNCH LIST" shall mean a list of items that Carrier deems necessary that Tower Company complete, fix, alter or correct in order for the Tower Facilities to be completed in accordance with the Plans and Specifications.



"SPECIFICATIONS" shall mean the specifications for the construction of the Tower Facilities.



"TOWER COMPANY" shall mean SBA Towers, Inc., a Florida corporation. Notwithstanding anything to the contrary contained in this Agreement, Tower Company has the right to delegate certain services and duties under this Agreement to SBA, Inc. or Communication Site Services, Inc., both of which corporations are wholly owned by the same corporation that wholly owns Tower Company, provided that such delegation of duties does not encompass a majority of or substantial portion of Tower Company's





duties and obligations under this Agreement and further provided that such parties agree to comply with and abide by the terms, conditions and provisions of this Agreement.



"TOWER FACILITIES" shall mean the (i) tower, (ii) foundations, (iii) fenced compound enclosing the Tower Site, (iv) high capacity telephone service to a main connection point within the compound, (v) concrete equipment pad for Carrier's exclusive use, (vi) minimum of 200 amp electrical service to a main connection point within the compound, (vii) access sufficient for the placement and routine servicing of tenant antennas and base station equipment, and (viii) grounding to Carrier's reasonable standards and specifications, to be located upon the Applicable Tower Site.



II. GRANT OF RIGHTS, ASSIGNMENT AND

ASSUMPTION OF GROUND LEASES, AND SUBLEASING



2.1. (a) GRANT. Carrier grants Tower Company the nonexclusive right to develop, construct and lease those sites in Carrier Markets which involve the construction of towers and related facilities ("Tower Sites") upon the terms and conditions of this Master Lease from the date of this Agreement through December 31, 2000 and any extensions thereto which are mutually agreed upon by Tower Company and Carrier. Tower Company acknowledges and agrees that the right to develop, construct and lease the Tower Sites is not an exclusive right and that Carrier may grant similar rights to other parties.



(b) APPLICATION.



(i) NOTICE. In the event that Carrier identifies a Tower Site or

search ring where it intends to place, develop and construct a tower,

and Carrier intends to grant to Tower Company the right to develop,

construct and lease such Tower Site, Carrier shall give Tower Company

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 Carrier 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, Carrier shall notify Tower Company 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 Carrier has obtained a fully executed option, lease, contract or other right to lease the property for the Applicable Tower Site, Carrier shall notify Tower Company in writing of and deliver to Tower Company 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 Carrier has obtained a fully executed 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, Carrier shall notify Tower Company in writing, at least ten (10) days before the date that Carrier 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 2.1(b)(i)(A), (B) and (C), Carrier shall not be obligated to provide Tower Company the Notice of Applicable Tower Site until ten (10) days prior to the date that Carrier intends to make application for a building permit for the





Applicable Tower Site, provided however, Carrier may elect to provide Tower Company Notice of the Applicable Tower Site pursuant to 2.1(b)(i)(A) or 2.1(b)(i)(B) above.



(ii) ACCEPTANCE OR REJECTION OF APPLICABLE TOWER SITE.



(A) Tower Company shall have a period of twenty (20) days (the

"Application Period") from the date of the Notice of Applicable Tower

Site is received by Tower Company 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

Tower Company adversely impact the development or ownership of the

Applicable Tower Site as a multi-tenant tower site. In the event that

Tower Company does not accept or reject the Applicable Tower Site

within such twenty (20) day period, Tower Company shall be deemed to

have rejected such Applicable Tower Site. In the event that Tower

Company rejects or does not accept any Applicable Tower Site, Tower

Company shall have no right to require an assignment of the Ground

Lease or obligation to develop the Applicable Tower Site and Carrier

shall have no further obligation to Tower Company in regards to the

Applicable Tower Site under the terms of this Agreement.



(B) (I)Notwithstanding anything to the contrary contained in this

Agreement, in the event that Tower Company accepts an Applicable Tower

Site, Tower Company will have the right to terminate its obligations

with respect to such Applicable Tower Site under the terms of this

Agreement at any time prior to commencement of construction of the

Tower Facilities by providing a notice to Carrier because of (a) a

title or environmental defect that materially adversely affects Tower

Company's intended use of the Applicable Tower Site as a multi-tenant

tower site and as contemplated under this Agreement provided that such

defect is not caused by or contributed to by Tower Company, (b) Tower

Company is unable to obtain necessary governmental approvals for the

Applicable Tower Site as a multi-tenant tower site, or (c) Tower

Company will be unable to obtain necessary governmental approvals

without excessive cost and/or delay for the Applicable Tower Site as a

multi-tenant tower site. (II) In the event of such a termination, if

the applicable SLA has been signed, it will be deemed terminated

automatically without further notice or agreement. Additionally upon

such termination, Tower Company shall assign to Carrier any Ground

Lease or Pre-Development Information which Tower Company may have

regarding the Applicable Tower Site and Carrier shall assume any

reasonable obligations thereunder the cost of which are provided for

under this Agreement or the SLA and Carrier shall be obligated to the

Tower Company for the reasonable Pre-Development Costs which have been

agreed upon pursuant to the terms of this Agreement, including without

limitation any Pre-Development Costs previously reimbursed by the Tower

Company to the Carrier.



(C) Notwithstanding anything else contained herein, Tower Company

shall not be obligated to accept a Site, an assignment of the Ground

Lease or Pre-Development Information until Carrier has completed all

the items and work necessary for the completion of the stage of work or

milestone which the Carrier has performed or intends to perform.



(c) DUE DILIGENCE. During the (i) Application Period; and (ii) in the event that Tower Company provides Carrier with a Notice of Acceptance with respect to the Applicable Tower Site,





during the period between the Application Period and the Commencement Date on the applicable SLA; and (iii) during the term of the applicable SLA, provided that Tower Company has assumed the Ground Lease, and has entered into an SLA with Carrier for the Applicable Tower Site, Carrier shall make available to Tower Company the Pre-Development Information. Carrier shall cooperate with Tower Company in making reasonable modifications to the Pre-Development Information at the request of Tower Company.



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



(e) ASSIGNMENT AND ASSUMPTION OF GROUND LEASE. In the event that Tower Company accepts the Applicable Tower Site for development pursuant to paragraph 2.1 of this Agreement, and Carrier has entered a Ground Lease with the Ground Lessor, Carrier shall assign to Tower Company and Tower Company shall assume and agree to be bound, by the Ground Lease, together with the Easements to the Property pursuant to the Assignment and the relationship of the parties with regard to the Applicable Tower Site shall thereafter be governed by this Agreement. In the event that the Ground Lessor must consent to the assignment of the Ground Lease, the Assignment (and assumption on the part of Tower Company) shall be contingent upon the delivery of the consent of the Ground Landlord to the Assignment in substantially the form of the consent provided in the Estoppel Certificate attached hereto as Attachment "III" and such consent shall be a condition precedent to the Assignment. The form of the Assignment by which Carrier assigns the Ground Lease and any Easements to Tower Company shall be substantially the same form as that which is attached hereto as Attachment "I". The Assignment shall be executed by Carrier and Tower Company in three (3) counterpart originals, and one original execution copy shall be delivered to Carrier and two (2) original execution copies shall be delivered to Tower Company simultaneously with the assignment of the Pre-Development Information. In addition thereto, Tower Company and Carrier 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 Tower Company simultaneously with the Assignment. Tower Company shall send the Memorandum of Assignment to the appropriate recording office for recording 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 (provided that Tower Company receives the Memorandum of Assignment executed by Carrier prior to such time). In addition thereto, Tower Company and Carrier shall use reasonable efforts to obtain from the Ground Lessor, a release of Carrier from all liabilities under the Ground Lease and shall include such release language in the Estoppel Certificate which is attached hereto as Attachment "III". Tower Company and Carrier shall exercise reasonable efforts to obtain an estoppel certificate from the Ground Lessor in substantially the form of the estoppel certificate attached hereto as Attachment "III." Tower Company shall and hereby agrees to hold Carrier harmless and indemnify Carrier from any and all claims, losses, obligations, damages, costs or expenses ever suffered, threatened or incurred by Carrier by reason of any act or omission of Tower Company under the Ground Lease from and after the date of the assignment, including without limitation, any default under the Ground Lease. Carrier shall and hereby agrees to hold Tower Company harmless and indemnify Tower Company from any and all claims, losses, obligations, damages, costs or expenses ever suffered, threatened or incurred by Tower Company by reason of any act or omission of Carrier under the Ground Lease before the date of the assignment, including without limitation, any default under the Ground Lease.





(f) ASSIGNMENT AND ASSUMPTION OF PRE-DEVELOPMENT INFORMATION. In the event that Tower Company accepts the Applicable Tower Site for development pursuant to Paragraph 2.1 of this Agreement, and whether or not Carrier has entered a Ground Lease with the Ground Lessor, Carrier shall assign to Tower Company and Tower Company shall assume and agree to be bound, by Tower Company's right, title and interest in the Pre-Development Materials in Carrier's possession, to the extent transferable or assignable, and without warranty or representation, pursuant to an assignment and assumption agreement, substantially in the form of the Assignment attached hereto as Attachment "I" and the relationship of the parties with regard to the Applicable Tower Site shall thereafter be governed by this Agreement. The assignment of Pre-Development Materials shall be executed by Carrier and Tower Company in three (3) counterpart originals, and one (1) original execution copy shall be delivered to Carrier and two (2) original execution copies shall be delivered to Tower Company within five (5) days of the Notice of Acceptance. Unless otherwise provided in the schedule, simultaneously with the execution of the assignment of Pre-Development Information by the parties, Tower Company shall pay Carrier the Pre-Development Costs incurred by Carrier in connection with the Pre-Development Information in accordance with Attachment "VI".



(g) COMPLETION OF PRE-DEVELOPMENT WORK. In the event that Tower Company accepts the Applicable Tower Site in accordance with the terms of this Agreement, Tower Company 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 that have not been completed by Carrier, 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, provided that Carrier will reasonably cooperate with Tower Company in connection therewith; (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 a title report, commitment for title insurance, ownership and encumbrance report, title opinion letter, copies of instruments in the chain of title or any other information which may have been produced regarding the marketability of title and title to the Property and the easements; and (v) obtaining environmental assessments including phase I reports and a report relating to contemporaneous or subsequent intrusive testing, the "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" or the "Pre-Development Materials"). Tower Company shall make available to and deliver to Carrier copies of all of the Pre-Development Information prior to the execution of an SLA.



(h) ZONING AND GOVERNMENTAL APPROVALS. In the event that it is necessary to obtain any zoning or governmental approvals, permits, variances, or other action from any federal, state or local governmental body or entity ("Governmental Approvals") for the Applicable Tower Site and Tower Company has accepted the Applicable Tower Site prior to the issuance of such Government Approvals, where reasonably practicable and where Tower Company has not entered into a lease or license with any other carrier for the occupancy of the Tower Facility upon the Applicable Tower Site and provided that, Carrier has provided Tower Company notice that it intends to exercise its right to approve the Government Application contemporaneously with the delivery of the Notice of Applicable Tower Site, Carrier shall have the right:



(I) to approve, (such approval not to be unreasonably withheld, delayed or

conditioned) any application, motion, appeal or action ("Government

Application") for such Government Approvals; and





(II) to approve any presentation, witnesses, evidence, materials or

reproduced works, or similar items, matters or parties which Tower

Company intends to utilize or present for or to any person, entity,

body or commission for such Governmental Approval; and



(III) to require Tower Company to hire or use any witnesses, attorneys,

consultants, lobbyists, public relations consultants, or parties which

Carrier deems reasonably necessary to obtain the Governmental Approval.



Carrier shall pay and be liable for the added expense (the addition of which shall be documented by Tower Company) of exercising its rights under (I), (II), or (III). The withholding of any approval by Carrier solely because the Tower Facility has been designed as a multi-tenant tower site shall be an approval deemed to be unreasonably withheld. In the event that Tower Company has not entered into a lease or license with any other carrier for the occupancy of the Tower Facility upon the Applicable Tower Site, Carrier shall have the right at any time to withdraw, dismiss, terminate or otherwise cease any process, hearing or proceeding upon or regarding a Government Application. Tower Company may proceed with the Government Application but in no event shall Tower Company publish, advertise or otherwise use Carrier's name or likeness in the Government Application or any proceeding, appeal or other filing for the Government Approval and further provided that Carrier shall not be liable for any further costs or expenses incurred in connection with the Applicable Tower Site, including without limitation for the Government Approvals and that Carrier shall not be liable or responsible for or obligated to enter an SLA with Tower Company for the Applicable Tower Site. In the event that Carrier desires to terminate, dismiss, withdraw or otherwise cease any process, hearing, or proceeding upon or regarding a Government Application and in the reasonable opinion of Tower Company and Tower Company's counsel (in writing) such Government Application could have been approved and Tower Company does not construct a tower or similar facility upon the Applicable Tower Site, Carrier shall reimburse Tower Company for all fees and expenses incurred in connection with the Government Applications and the Pre-Developme ...