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.
SITE DEVELOPMENT AGREEMENT
THIS SITE DEVELOPMENT AGREEMENT ("Agreement"), dated as of the 17th day of
August, 1999 ("Effective Date"), is made by and between Horizon Personal
Communications, Inc. ("Horizon") and SBA Towers, Inc., a Florida corporation
("SBA").
WHEREAS, Horizon Telecom, Inc., Horizon and SBA have entered into an Asset
Purchase Agreement ("APA") whereby SBA will purchase certain telecommunications
tower sites from Horizon, and Horizon and SBA have entered into or have agreed
to enter into a Master Site Agreement ("MSA"), and a Master Design Build
Agreement ("BTS Agreement") whereby SBA will construct additional
telecommunications tower sites to Horizon's specifications, and Horizon shall
lease space on such towers from SBA; and
WHEREAS, Horizon controls certain affiliated companies and/or makes
managerial decisions for certain affiliated companies, including Bright PCS,
LLC, regarding the construction of future telecommunications tower sites and has
agreed on behalf of certain of such affiliates to enter into a build-to-suit
agreement ("Affiliate BTS Agreement") and a lease-back agreement with SBA on
behalf of such affiliates on substantially the same terms and conditions as the
BTS Agreement and the Master Site Agreement; and
WHEREAS, as a material inducement to Horizon to enter into the Asset
Purchase Agreement, Master Site Agreement and BTS Agreement SBA has agreed to
pay certain development fees to Horizon for certain telecommunications tower
sites which SBA constructs on behalf of Horizon or its affiliates.
NOW THEREFORE, for and in consideration of the mutual covenants contained
herein and other good and valuable consideration, the parties hereby agree as
follows:
1. DEFINITION OF REGIONS. As used herein, "Region 1" shall mean BTA's 23,
39, 73, 78, 80, 126, 143, 155, 197, 233, 255, 280, 294, 342, 359, 424, and 487,
and any counties which are adjacent to these BTAs. As used herein, "Region 2"
shall mean BTA 229.
2. TERM. This agreement shall commence upon the effective date of the BTS
Agreement and shall continue in fall force and effect until the expiration or
earlier termination of the BTS Agreement or the Affiliate BTS Agreement(s),
whichever occurs later.
3. DEVELOPMENT FEES. As consideration for Horizon's services relating to
providing build-to-suit opportunities, SBA shall, within ten (10) days of the
SLA Commencement Date (as that term is defined in the MSA) for each BTS Site
constructed by SBA under the BTS Agreement or any of the Affiliate Agreements,
1
[***] - CONFIDENTIAL TREATMENT REQUESTED
pay to Horizon at the address set forth in paragraph 5 below, the sum of [***]
for the applicable Site in Region 1, the sum of [***] for the first [***] Sites
constructed in Region 2 in the aggregate under the BTS Agreement and the
Affiliate BTS Agreement(s), and the sum of [***] for each Site in Region 2
beyond the initial [***] ("Development Fee"). In the event that the Development
Fee for a Site is not paid within ten (10) days of the SLA Commencement Date for
that Site, Horizon shall be entitled to offset such amount against the Rent
payable under the MSA and related SLAs.
4. PUBLICITY. Neither party shall make news releases or issue other
advertising pertaining to the Services or this Agreement without prior written
approval of the other party; provided, however, that both parties agree to
either approve or deny such news release or advertising within two (2) business
days of the request for approval from the other party. In the event that such
news release or advertising is neither approved nor denied within two (2)
business days, it shall be deemed approved.
5. NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly delivered and effective upon
receipt if personally delivered, or on receipt if mailed by prepaid overnight
express service, addressed to the following (or other addresses as the parties
hereto may designate):
If to Horizon, to: If to SBA, to:
Horizon Personal Communications, Inc. SBA
68 East Main Street SBA Towers, Inc.
P.O. Box 480 One Town Center Road, 34 Floor
Chillicothe, Ohio 45601-0480 Boca Raton, FL 33462
Attn: Vice President Technology Attn: General Counsel
6. BINDING EFFECT. The Agreement shall be binding upon and enforceable by,
and inure to the benefit of, successors, assigns, and transferees of the
parties.
7. FURTHER ASSURANCES. The parties shall execute and deliver such further
instruments and perform such further acts as may reasonably be required to carry
out the intent and purposes of this Agreement.
8. CHOICE OF LAW. The Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, excluding the conflict of law
provisions thereof.
9. WAIVER. The failure of either party to insist upon strict performance of
any obligation hereunder, irrespective of the length of time for which such
failure continue, shall not be a waiver of such party's right to demand strict
compliance in the future. No consent or waiver, express or implied, to or of any
breach or default in the performance of any obligation hereunder shall
constitute a consent or waiver to or of any other breach or default in the
performance of the same or any other obligation hereunder.
10. HEADINGS. All section and paragraph titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the text
of this Agreement.
2
11. PRONOUNS. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular, or plural as the context may
require.
12. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be considered an original and all of which
taken together shall constitute one and the same instrument.
13. CONSTRUCTION OF AGREEMENT. This Agreement shall be interpreted
according to its plain meeting and shall not be strictly construed against
either party.
14. CONFIDENTIAL INFORMATION.
(a) Use of Confidential Information. In order to permit the parties to
perform their respective obligations under this Agreement, each party may, from
time to time, disclose to the other confidential or proprietary information.
Such confidential or proprietary information and the terms of this Agreement
shall constitute "Confidential Information". Each party shall use all
Confidential Information solely for the purpose of performing its obligations
under this Agreement. Neither party shall disclose to any other person, other
than employees or agents of the party who agree, in writing, to be bound by an
equivalent undertaking, any Confidential Information. SBA agrees not to disclose
any of Horizon's Confidential Information or any information pertaining to the
Sites to a competitor of Horizon. Horizon agrees not to disclose any of SBA's
Confidential Information or any information pertaining to the Sites to a
competitor of SBA.
(b) Exceptions. The aforementioned restrictions shall apply to all
Confidential Information with the exception
of the following:
(i) Confidential Information which is made public by either
party while performing under this Agreement or which otherwise is or
hereafter becomes part of the public domain through no wrongful act,
fault, or negligence on the part of the other party;
(ii) Confidential Information which a party can reasonably
demonstrate is already in such party's possession and not subject to
an existing agreement of confidentiality;
(iii) Confidential Information which is received from a
third party without restriction and without breach of an agreement
with Horizon or SBA;
(iv) Confidential Information which is independently
developed by a party as evidenced by its records; or
(v) Confidential Information which either party is required
to disclose pursuant to a valid order of a court or other governmental
body or any political subdivision thereof; provided that, to the
extent that it may lawfully do so, the disclosing party shall provide
the affected party with immediate written notice of the nature of the
required disclosure and shall, where appropriate, provide that party
with the opportunity to interpose an objection or obtain a protective
order restricting the use and disclosure of the Confidential
Information; or
(vi) in defense of a legal action or otherwise required by a
governmental agency or applicable law.
3
15. ENTIRE AGREEMENT. This Agreement, the APA, the MSA, and the BTS
Agreement contain the entire understanding between and among the parties and
supersede any prior understandings and agreements among them respecting the
subject matter of this Agreement.
16. CONDITIONS PRECEDENT. SBA shall have the right to terminate this
Agreement if the following conditions have not been satisfied prior to the
Closing (as that term is defined in the APA): 1) a BTS Agreement in form
substantially similar to this Agreement has been entered into between Bright
PCS, LLC and SBA; and 2) this Agreement has been approved by the Board of
Directors of SBA. In the event that SBA fails to obtain approval of this
Agreement by its Board of Directors on or before September 1, 1999, this
Agreement shall terminate and SBA shall pay to Horizon the sum of Fifty Thousand
and No/100 Dollars ($50,000.00).
IN WITNESS WHEREOF, SBA and Horizon have duly executed and delivered this
Agreement. The party last executing this Agreement shall insert the date of such
execution on the first page hereof, which date shall be the Date of this
Agreement.
SBA:
SBA TOWERS, INC.
By:________________________________
Title:_____________________________
Attest:____________________________
(CORPORATE SEAL]
HORIZON:
HORIZON PERSONAL COMMUNICATIONS, INC.
By:_________________________________
Title:______________________________