CONFIDENTIAL TREATMENT REQUESTED
Confidential Portions of this Agreement Which Have Been Redacted Are Marked
With ("[***]). The Omitted Material Has Been Filed Separately With The
Securities and Exchange Commission.
MASTER SITE AGREEMENT
BY AND BETWEEN
SBA TOWERS, INC.
AND
BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC.
CONFIDENTIAL TREATMENT REQUESTED
MASTER SITE AGREEMENT
THIS MASTER SITE AGREEMENT (this "MSA") is made and entered into this 1st
day of October, 1999 (the "Date of this MSA"), by and between SBA TOWERS, INC.
("SBA"); and BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC ("Bright PCS").
RECITALS:
WHEREAS, SBA and Bright PCS have executed that certain Master Design Build
Agreement ("BTS Agreement") contemporaneously with the execution of this MSA
which provides for the design, development and construction of new tower sites
("BTS Sites"); and
WHEREAS, this MSA shall govern the BTS Sites; and
WHEREAS, SBA and Bright PCS will enter into a Site Agreement ("SLA") which
will establish the terms for use of BTS Sites in form and substance
substantially similar to Attachment "A" attached hereto and by reference made a
part hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. MSA. This MSA sets forth the general terms and conditions upon which all
Sites (as defined below) shall be leased to Bright PCS. SBA and Bright PCS shall
execute SLAs in the form attached hereto as Attachment "A" for each BTS Site in
accordance with the provisions of paragraph 2.7(b) of the BTS Agreement as such
Sites are identified from time to time. Each SLA shall identify a particular
Site, made subject to this MSA. In the event of a conflict or inconsistency
between the terms of this MSA and a SLA, the terms of the SLA shall govern and
control for that Site.
2. SITE.
(a) Subject to the following terms and conditions, SBA hereby grants
Bright PCS the right to install, maintain and operate Bright PCS's wireless
communications equipment and appurtenances on space on a tower on a BTS Site
("Tower") which is adequate to allow the installation of the Equipment, as that
term is defined in this paragraph 2, with sufficient separation from the
equipment owned by SBA or any equipment which is owned or operated by a
sublessee or licensee of SBA as may be necessary to prevent interference with
the Equipment as provided in paragraph 6 of this MSA ("Tower Space") together
with ground space that will not exceed two hundred fifty (250) square feet on
each BTS Site as described in this paragraph 2 ("Ground Space") with
non-exclusive easements for access and utilities to the Ground Space
1
(collectively the "Easement"). Bright PCS shall have exclusive control and
dominion of the Tower Space and the Ground Space provided that SBA and other
tenants of the BTS Site shall have a non-exclusive, temporary construction
easement over the Site, as that term is hereinafter defined, as is reasonable
and necessary for the maintenance, repair and installation of equipment on the
Tower, but in no event may SBA or any other entity disturb or interfere with the
operations conducted by Bright PCS of the Site in performing these activities.
In no event shall SBA install or allow its lessees, sublessees, licensees or
other entities which are granted the right by SBA to occupy the BTS Site to
install any improvements below, on or above the Ground Space. The Tower Space,
Ground Space, Easements and Cable Path (as hereinafter defined) as to any BTS
Site may be collectively referred to herein as a "Site".
(b) Subject to the terms and conditions of this MSA, SBA hereby agrees
to lease each of the Sites to Bright PCS. SBA further grants and assigns to
Bright PCS the non-exclusive rights: (i) to utilize portions of any utility
Easement for the installation and maintenance of utilities, cables, conduits and
pipes for the providing of necessary utility service (including, without
limitation, electrical and telecommunications service) to the Equipment; (ii) to
utilize the BTS Site including any ingress and egress easements for pedestrian
and vehicular access to and from the Site; and (iii) to use a portion of the
ground and space on the Tower to install cabling and utilities for connecting
and linking the Tower Space with the Ground Space (the "Cable Path"). Bright PCS
shall be entitled to enter the Site on a twenty-four (24) hour, seven (7) days
per week basis during the SLA Term (as hereinafter defined). Bright PCS shall
give SBA verbal notice not less than twenty four hours prior to a scheduled
ascension of a Tower by Bright PCS or its agents or contractors. In the event
that Bright PCS must ascend a Tower for exigent circumstances it shall provide
verbal notice of the ascension of the Tower within twenty fours (24) hours after
the tower was ascended.
(c) Bright PCS shall have the right, without paying any additional
consideration to SBA, to install, maintain, operate, replace, reconfigure and
upgrade the following equipment on each Site: (i) one (1) six foot (6'-0")
maximum diameter microwave dish; (ii) up to twelve (12) panel antennas and
associated tower top amplifiers and connection boxes, jumper cabling and twelve
(12) - 1 5/8" coaxial cables; and (iii) a generator and a generator fuel tank
provided that Bright PCS shall obtain any governmental permits and approvals
which are required for such activities. SBA acknowledges and agrees that the
microwave dish installed by Bright PCS on the Tower need not be located within
the Tower Space, provided that, in such event, Bright PCS shall locate the
microwave dish on the Tower so as not to adversely affect the installation of
another carrier's equipment on the Tower and to avoid overloading the Tower when
considering the loads in existence as of the date of installation of the
microwave dish.
(d) Bright PCS shall have the right, without paving any additional
consideration to SBA, to install, maintain, operate, replace, reconfigure and
upgrade on each Site any Equipment which may be located within Ground Space
which will not exceed two hundred fifty (250) square feet. In addition, if
necessary to handle maximum traffic capacity, Bright PCS shall also have the
right, without paying any additional consideration to SBA, to install, maintain,
operate, replace, reconfigure and upgrade on each Site additional electronic
equipment and related cabinetry within the Ground Space.
2
(e) The equipment and items specified in paragraph 2(c) shall
hereafter be referred to as the "Equipment." In no event shall Bright PCS be
required to share the Equipment with SBA or any other occupant of a Site as a
common facility. Bright PCS shall maintain at its expense the Equipment in
accordance with applicable laws, codes, ordinances and regulations.
(f) Bright PCS may from time to time during the SLA Term replace,
substitute or modify any of the Equipment. Bright PCS must submit plans and
specifications of the replacement, modification, substitution or additional
equipment. SBA shall have the right to cause an intermodulation study, but only
if the Equipment is operating at a New Spectrum as that term is defined in
paragraph 6(a). SBA shall have the right to cause a structural analysis to be
performed using such plans and specifications, at Bright PCS's sole cost and
expense but only in the event there exists a reasonable likelihood that the
windloading or structural capacity of the load created by the replacement,
modification, substitution or additional equipment exceeds the loads created by
a full array of the Equipment. The plans and specifications will be subject to
SBA's approval, such approval not to be unreasonably withheld, delayed or
conditioned. The costs of any such intermodulation study or structural analysis
shall not exceed the market rates for said services. It will be unreasonable for
SBA to reject such plans and specifications if the equipment described in the
plans (i) does not increase the wind load or structural burden upon the Site
above that which would be created by a full array of the Equipment, (ii) does
not increase the leased Tower or ground space, and (iii) does not create any
technical or radio frequency interference which interferes with the equipment or
network of other users who are then located upon the Site.
(g) SBA shall not enter into any lease, sublease, license or other
occupancy agreement (or any amendment or modification thereof) affecting the BTS
Site or the Tower or permit the installation of any equipment that would have
the effect of (i) restricting or impairing Bright PCS's right to install and use
at any time during the SLA Term the full amount of the Equipment; (ii) violating
any federal, state or local law, regulation or ordinances; or (iii) impairing
Bright PCS's access to the Equipment. In connection with the foregoing, SBA
shall require any structural report or analysis obtained by SBA or any other
proposed sublessee, licensee or other occupant of the Tower to assume and
incorporate the utilization of the full amount of the Equipment regardless of
whether the full amount of the Equipment has been installed as of the date of
the report or analysis. In the event of a violation of this Paragraph 2(g) that
is not cured within thirty (30) days after SBA's receipt of written notice of
such violation, Bright PCS may (without being obligated to do so and in addition
to, and not in lieu of, any other remedy available to Bright PCS on account
thereof) seek the enforcement of this Paragraph 2(g) against SBA and any entity
participating in such violation, including the seeking of equitable relief.
(h) The Equipment shall remain the exclusive property of Bright PCS
and Bright PCS shall have the right to remove all or any portion of the
Equipment at any time during the SLA Term. Bright PCS shall remove the Equipment
from the Site within thirty (30) days after the expiration or any earlier
termination of any SLA subject to any rights that SBA may have in and to certain
3
[***] - CONFIDENTIAL TREATMENT REQUESTED
alterations and improvements to the Site as set forth in this MSA. Bright PCS
shall repair any damage caused by such removal. In the event that Bright PCS
does not remove its Equipment from a Site on or before the expiration or earlier
termination of the applicable SLA, then Bright PCS shall pay as hold-over rental
for the period after the date of the termination or earlier expiration of the
SLA a sum which is equivalent to [***] of the rental rate which was accruing
immediately prior to the expiration or termination of the applicable SLA which
amount shall be prorated through the date that the Equipment is removed from the
Site.
(i) Bright PCS and its employees, agents, consultants and contractors
shall be entitled to enter upon the BTS Site for purposes of accessing the Site
subject to the notice requirements of paragraph 2(b) of this MSA. SBA shall have
the right to approve those contractors engaged by Bright PCS before said
contractors enter a Site provided that the approval of any contractor by SBA
shall not be conditioned or unreasonably withheld or delayed by SBA and, once
such an approval has been given, shall apply to all Sites which are governed by
this MSA.
3. TERM.
(a) MSA Term. The MSA term shall begin on the date of this MSA and
shall continue until the expiration or earlier termination of the last SLA which
remains subject to the terms of this MSA (the "MSA Term").
(b) SLA Term and Renewal. Subject to Paragraphs 3(c) and (d) of this
MSA, the Initial SLA Term for BTS Sites shall be [***], which term shall begin
on the earlier of the date which is (i) [***] after the date that SBA notifies
Bright PCS that the Tower is suitable for the installation of the Equipment or
(ii) the date at which Bright PCS commences the installation of the Equipment.
The date upon which each SLA commences may hereinafter be referred to as the
"SLA Commencement Date". The Initial SLA Term, together with any and all
renewals and extensions thereof, shall be defined as the "SLA Term".
(c) Subject to Paragraph 3(d) hereof, without regard to whether such
rights are or are not set forth in each SLA and further provided that Bright PCS
is not in default in the payment of Rent beyond any applicable cure period at
the date of the commencement of the Renewal Term (as hereinafter defined),
Bright PCS shall have the right, but not the obligation, to extend any SLA for
[***] additional, consecutive [***] year terms (each, a "Renewal Term"). Bright
PCS's sublease of the Site during each Renewal Term shall be on the same terms
and conditions as set forth herein except with respect to rent and insurance as
otherwise set forth herein. This MSA and each SLA shall automatically renew for
each successive Renewal Term unless Bright PCS notifies SBA in writing of Bright
PCS's intention not to renew any such SLA at least sixty (60) days prior to the
expiration of the Initial SLA Term or the Renewal Term then in effect.
(d) SBA hereby covenants and agrees that, so long as Bright PCS has
not exercised its option to refrain from renewing an SLA, SBA shall exercise any
right to renew the ground lease (or refrain from effecting a non-renewal
thereof, as the case may be) applicable to such Site ("Ground Lease") and shall
4
[***] - CONFIDENTIAL TREATMENT REQUESTED
not exercise any right of termination of such Ground Lease (except as otherwise
provided under this MSA) so that such Ground Lease shall continue in full force
and effect during the Initial Term and all Renewal Terms available under such
SLA. Without in any way modifying SBA's obligation to renew each Ground Lease as
described above, the SLA Term of any SLA shall not extend beyond the term
(including any renewals thereof) of the Ground Lease applicable to such Site
and, simultaneously with the expiration or earlier termination of the Ground
Lease in accordance with its terms, the applicable SLA shall also terminate;
provided, however, that the foregoing shall not be deemed or construed to modify
or limit any of Bright PCS's rights of nondisturbance or of cure under such
Ground Lease or under any other agreement with the lessor under such Ground
Lease ("Ground Lessor"). In the event that SBA and the Ground Lessor hereafter
enter into any further extensions or renewals of the Ground Lease, SBA shall
provide written notice thereof to Bright PCS within thirty (30) days of the
execution thereof.
4. RENT.
(a) Sites; Initial Term and Renewal Term.
(i) During the Initial SLA Term, Bright PCS shall pay annual rent
for each SLA at such place as SBA may specify in writing to Bright PCS from time
to time the sum of [***] in equal monthly installments in the amount of [***]
per month, in advance ("Rent"). The first monthly payment for each Site shall be
due on the SLA Commencement Date for such Site. Rent for any partial month
during the SLA Term or any renewal or extension thereof shall be prorated and
payable according to the actual number of days in the calendar month for which
such determination of Rent is to be made.
(ii) Rent Escalation. On the third anniversary of the SLA
Commencement Date for each BTS Site, and on each anniversary of the Commencement
Date for said Sites thereafter throughout the Initial Term and any Renewal Term,
[***].
(b) Bright PCS shall have the right to use a direct deposit system
with regard to Rent payments. SBA agrees to cooperate with Bright PCS in
providing requisite information to Bright PCS for such direct deposit. The
implementation of the direct deposit process shall be at Bright PCS's expense.
5. PERMITTED USE. Bright PCS may use each Site for: (1) the transmission,
relay and receipt of communication signals utilizing any lawful frequencies via
the Equipment, (ii) the construction, alteration, maintenance, repair,
replacement and relocation of the Equipment in accordance with the terms and
provisions of this MSA and (iii) any other incidental lawful purposes in
accordance with the terms and conditions hereof.
5
6. INTERFERENCE.
(a) Bright PCS's use of each Site as permitted in accordance with
Paragraph 5 for the installation and operation of the Equipment (including any
microwave dishes installed and operated by Bright PCS pursuant to Paragraph
2(c)) shall constitute the "Senior Use" on the BTS Site. The Senior Use shall
further include any use or uses by substitute, modified or replacement antennas
that are installed within the Tower Space on account of damage, disrepair or
obsolescence of any of the antennas described above or failure of such antennas
to yield optimum performance, even if such substitute, modified or replacement
antennas are of a different model or manufacturer. Bright PCS's use of the Site
for the Senior Use shall be deemed for all purposes the senior-in-priority use
of the BTS Site. It is understood that should the Equipment operate at
frequencies different from the frequencies than those which Bright PCS has
authority to utilize ("New Spectrum") as of the Date of this MSA the use of
those frequencies shall not be a Senior Use for the purpose of resolving
interference with the then existing uses at that Site. Notwithstanding the
foregoing, if Bright PCS shall begin the operation of frequencies pursuant to a
New Spectrum, the use of the New Spectrum shall thereafter constitute a Senior
Use relative to any use of the BTS Site which commences after the date of
commencement of use of the New Spectrum. If the equipment which is operating at
the New Spectrum causes interference with the then existing equipment at the BTS
Site and such interference cannot be eliminated within five (5) business days
after receipt by Bright PCS of notice from SBA of the existence of interference,
Bright PCS shall cease the operation of the Equipment which is operating at the
New Spectrum and is causing interference (except for intermittent operation for
the purpose of testing, after performing maintenance, repair, modification,
replacement, or other action taken for the purpose of correcting such
interference) until such interference is corrected.
(b) In the event that, as to any Site leased to Bright PCS pursuant to
an SLA, SBA enters into any lease, sublease or license agreement in the future
with any third party for other portions of the BTS Site or the Tower, then SBA
agrees to require such lessee, sublessee or licensee to install equipment of
types and operating at radio frequencies that will not cause interference to
Bright PCS's communications operations being conducted from the Site. SBA agrees
that in the event such lessee, sublessee or licensee causes interference with
the Equipment, SBA will require such sublessee or licensee to take all steps
necessary to correct and eliminate the interference. SBA will notify such
lessee, sublessee or licensee of such interference within 24-hours of receipt of
such notice from Bright PCS. If such interference cannot be eliminated within
five (5) business days after receipt by such sublessee or licensee of notice
from SBA of the existence of interference, SBA shall cause such lessee,
sublessee or licensee to disconnect the electric power and shut down such
lessee's, sublessee's or licensee's equipment (except for intermittent operation
for the purpose of testing, after performing maintenance, repair, modification,
replacement, or other action taken for the purpose of correcting such
interference) until such interference is corrected. If such interference is not
completely rectified to the satisfaction of Bright PCS within sixty (60) days
after receipt by such lessee, sublessee or licensee of such notice from SBA, SBA
shall cause such lessee, sublessee or licensee to remove its antennas and
equipment from the BTS Site and the Tower.
6
7. UTILITIES.
(a) Use by Bright PCS. Bright PCS shall pay the cost of all electric
power, telephone and other utility service consumed by Bright PCS in operating
the Equipment and shall make payment therefor when due directly to the providing
utility or service company before any lien, fine, penalty, interest or other
charge may attach on account of nonpayment.
(b) Use by SBA and Others. Except for the cost of electric power,
telephone and other utility service consumed by Bright PCS in operating the
Equipment, SBA shall pay or cause to be paid the cost of all utilities and
services utilized on the BTS Site directly to the providing utility or service
company before any lien, fine, penalty, interest or other charge may attach on
account of nonpayment. SBA shall not nor shall it allow any third party to
sub-meter electricity at any Site from Bright PCS. SBA and any third party
granted a right to use the BTS Site or a portion thereof in accordance with the
terms of this MSA may connect to the utility improvements which serve the Site
provided that said utilities shall (i) be separately metered from Bright PCS's
utilities, (ii) not cause an undue loading on the electrical service when taking
into consideration the electrical load created by the Equipment which has been
or may be installed at the Site by Bright PCS and (iii) be installed on the
secondary side of the utility transformer which provides electrical service to
the Site.
8. GROUND LEASE DEFAULT; BRIGHT PCS'S RIGHT TO CURE. Upon the occurrence of
a Monetary or Non-Monetary, Ground Lease Default, as hereinafter defined
(collectively, "Ground Lease Defaults") and without limiting or restricting
Bright PCS's rights or remedies under Paragraphs 9, 10 and 11 hereof, Bright PCS
shall be authorized to exercise the remedies set forth below in this Paragraph
8:
(a) In the case of a default in the payment of rent due under a Ground
Lease or a default in any other obligation imposed upon SBA as lessee under the
Ground Lease the cure of which can be reduced to the payment of a monetary sum
(a "Monetary Ground Lease Default"), Bright PCS may, within or outside of any
cure period provided therefor in the Ground Lease or otherwise afforded to
Bright PCS by an agreement with the Ground Lessor, pay to the ground lessor any
amount required under the Ground Lease to cure such default so that the Ground
Lease shall remain in full force and effect, including, without limitation, any
interest, late charge or other assessment charged or assessed by Ground Lessor
with respect thereto. Bright PCS shall provide to SBA written notice of such
action at or before the time of making the foregoing payment to the Ground
Lessor. SBA shall have a period of ten (10) days from the date of receipt of
said notice from Bright PCS to cure said default before Bright PCS may affect a
cure pursuant and demand an offset against Rent pursuant to this paragraph.
Following any such payment by Bright PCS to Ground Lessor, Bright PCS shall be
entitled to withhold the full amount thereof, plus an additional administrative
charge of five percent (5%) of the amount paid, from installments of Rent next
owing under any such SLA until such amount and charge have been fully credited.
In connection therewith, the parties hereby acknowledge that such administrative
charges are intended to compensate Bright PCS for its administrative and
additional overhead costs, fees and expenses reasonably anticipated and
estimated to be incurred on account of such action and are not intended to be
imposed as a penalty.
7
(b) In the case of a default under a Ground Lease the cure of which
cannot be reduced to the payment of a monetary sum ("Non-Monetary Ground Lease
Default"), Bright PCS may, upon written notice to SBA (except in cases of
emergency whereby Bright PCS shall provide such notice as promptly as possible
after the fact), commence and prosecute any and all action or actions necessary
to cure such default as may be available to SBA under the terms and conditions
of such Ground Lease. SBA shall have a period of ten (10) days from the date of
receipt of said notice from Bright PCS to cure said default before Bright PCS
may affect a cure pursuant and demand an offset against Rent pursuant to this
paragraph. In the event of any such curative action by Bright PCS described in
this Paragraph 8(b), Bright PCS shall be entitled to withhold the full amount of
all costs and expenses incurred by Bright PCS in completing such cure, plus an
additional administrative charge of five percent (5%) of such amount, from
installments of Rent next owing under this MSA until such amount and charge have
been fully credited.
(c) In the event that Bright PCS effects a cure of a breach of a
Ground Lease by SBA as provided herein, Bright PCS may, at its election, require
SBA to assign the Ground Lease to Bright PCS and effect an Acquisition pursuant
to the terms of paragraph 9 hereof.
9. OTHER DEFAULTS BY SBA; ADDITIONAL BRIGHT PCS REMEDIES.
(a) The following shall constitute events of default under any SLA by
SBA:
(i) Breach of any representation, warranty or covenant set forth
in this MSA including the applicable SLA (with the exception of the interference
provisions set forth in Paragraph 6) which is not cured within thirty (30) days
of receipt of written notice, or such shorter time as may be specified by this
MSA or the applicable Ground Lease, except such cure period will be extended as
reasonably necessary to permit SBA to complete the cure so long as SBA commences
the cure within such thirty (30) day period, or other applicable period, and
thereafter continuously and diligently pursues and completes such cure;
(ii) If any petition is filed by or against SBA, under any
paragraph or chapter of the present or any future federal Bankruptcy Code or
under any similar law or statute of the United States or any state thereof (and
with respect to any petition filed against SBA, such petition is not dismissed
within ninety (90) days after the filing thereof), or SBA is adjudged bankrupt
in proceedings filed under any paragraph or chapter of the present or any future
Bankruptcy Code or under any similar law, or statute of the United States or any
state thereof.
(iii) If a receiver, custodian or trustee is appointed for SBA or
for substantially all of the assets of SBA and such appointment is not vacated
within sixty (60) days of the date of appointment; or
(iv) If SBA makes a transfer in fraud of creditors.
8
(b) Upon the occurrence of any default by SBA under this MSA or any
Ground Lease Default, Bright PCS shall be entitled to exercise any one or more
of the following rights or remedies in accordance with, and subject to, the
terms, provisions and conditions of this MSA:
(i) in the case of a default of this MSA resulting from SBA's
failure to renew the Ground Lease as required under Paragraph 3(d) hereof Bright
PCS shall have the right to take all necessary and appropriate steps to effect a
renewal thereof;
(ii) in the event of a breach or an alleged default under the
Ground Lease by SBA which is not cured
within five (5) days prior to the date that period to cure defaults under the
Ground Lease expires or if SBA shall fail to properly effect a renewal of a
Ground Lease, then Bright PCS may upon written notice to SBA, acquire from SBA
all of SBA's rights, title, benefits, interests and obligations under the
applicable Ground Lease (hereinafter referred to as an "Acquisition") in
accordance with the provisions of Paragraphs 9(c) and 9(d) hereof, whereupon at
the completion of the Closing (as hereinafter defined) of such Acquisition the
applicable SLA shall terminate;
(iii) upon written notice to SBA, terminate the applicable SLA(s)
without exercising its right of Acquisition, whereupon Bright PCS shall have no
further liability to SBA hereunder with regard to any such SLA(s); and
(iv) with or without terminating the applicable SLA, pursue any
and all other remedies available hereunder or under applicable law or in equity.
(c) In the event that Bright PCS elects to exercise its right to cause
an Acquisition, the improvements on the Site which were constructed and owned by
SBA ("SBA Improvements"), including, without limitation, the Tower, any concrete
foundations, and any utilities structures or other improvements owned by SBA on
the BTS Site shall be bargained, sold and conveyed to Bright PCS at a purchase
price equal to the fair market value of such improvements after disassembly,
less any dismantling and moving expenses and less the amount of any debt or
obligation encumbering or secured by such SBA Improvements. Nothing contained
herein shall be deemed to grant SBA the right to encumber the SBA Improvements
except as otherwise provided in this MSA.
(d) The closing of the Acquisition (the "Closing") shall occur within
thirty (30) days after SBA's receipt of Bright PCS's notice of exercise of such
right. During the aforementioned period prior to Closing, Bright PCS shall be
entitled (but shall not be obligated) to take all measures necessary to maintain
each Ground Lease in full force and effect, including the exercise of the cure
remedies described above in Paragraph 8 hereof, provided, however, that such
right shall not relieve SBA of its primary responsibilities in respect of each
Ground Lease. SBA agrees to deliver to Bright PCS originals or copies of any
other existing leases, subleases and licenses affecting the BTS Site. At the
Closing, (i) Bright PCS shall pay to SBA the purchase price for the SBA
Improvements to be conveyed to Bright PCS under this Paragraph 9; (ii) SBA shall
9
execute and deliver to Bright PCS a bill of sale without recourse to such SBA
Improvements; (iii) SBA and Bright PCS shall execute and deliver an assignment
and assumption without recourse of each Ground Lease and of existing leases,
subleases and licenses consistent with the terms and conditions hereof and a
termination agreement providing for the termination of the applicable SLA as of
the date of the Closing; and (iv) any and all other deeds, instruments and other
writings as may be reasonably required by Bright PCS or its title insurer to
effect the Acquisition or procure title insurance to the BTS Site.
(e) SBA shall indemnify and hold Bright PCS harmless from and against
any claims, actions, injuries, losses or damages (including reasonable
attorneys' fees and court costs) suffered or incurred by Bright PCS on account
of SBA's actions or omissions under or with respect to the Ground Lease and any
assigned subleases and licenses with any third party prior to the Closing.
Bright PCS shall indemnify and hold SBA harmless from and against any claims,
actions, injuries, losses or damages (including reasonable attorneys' fees and
court costs) suffered or incurred by SBA on account of Bright PCS's actions or
omissions under or with respect to the Ground Lease and the assigned subleases
and licenses with any third party after the Closing. The respective obligations
of SBA and Bright PCS under this Paragraph 9(e) shall survive the Closing and
the termination of the applicable SLA.
(f) In no event shall an event of default under one SLA constitute an
event of default under any other SLA or entitle Bright PCS to exercise any
remedies in relation to any Site other than the Site which is the subject of the
event of default; provided, however, that Bright PCS shall be entitled to
exercise any setoff rights it may possess against SBA, whether arising under
this MSA or by operation of law, against any SLA.
10. BRIGHT PCS'S DEFAULT. The occurrence of any one or more of the
following events constitutes an "event of default" by Bright PCS under any SLA:
(a) If Bright PCS fails to pay Rent within ten days of Bright PCS's
receipt of written request for payment;
(b) Breach of any representation, warranty or covenant set forth in
this MSA including any SLA, with the exception of the non-payment of any fee or
other sums by Bright PCS, which is not cured within thirty (30) days of receipt
of written notice or such shorter time as may be specified by this MSA, except
such thirty (30) day cure period will be extended as reasonably necessary to
permit Bright PCS to complete the cure so long as Bright PCS commences the cure
within such thirty (30) day period and thereafter continuously and diligently
pursues and completes such cure;
(c) If any petition is filed by or against Bright PCS, under any
paragraph or chapter of the present or any future federal Bankruptcy Code or
under any similar law or statute of the United States or any state thereof (and
with respect to any petition filed against Bright PCS, such petition is not
dismissed within ninety (90) days after the filing thereof), or Bright PCS is
adjudged bankrupt in proceedings filed under any paragraph or chapter of the
present or any future Bankruptcy Code or under any similar law or statute of the
United States or any state thereof,
10
(d) If a receiver, custodian or trustee is appointed for Bright PCS or
for any of the assets of Bright PCS and such appointment is not vacated within
sixty (60) days of the date of appointment; or
(e) If Bright PCS makes a transfer in fraud of creditors.
11. SBA'S REMEDIES. If an event of default by Bright PCS occurs, SBA
(without notice or demand except as expressly required above) may terminate the
applicable SLA. Bright PCS will become liable for damages equal to the total of:
(a) The actual, reasonable costs of recovering the Site which is in
default, including reasonable attorneys' fees;
(b) The Rents accrued and payable as of the date of termination, plus
interest thereon from the date due until paid; and
(c) the Rent reserved for the remainder of the then existing SLA Term
as such Rents would ordinarily become due and payable.
(d) If Bright PCS does not cure an actual default within the period
available to cure a default, SBA may cure the default and demand reimbursement
from Bright PCS of those reasonable expenditures made by Bright PCS to cure any
such default. Following any such payment by SBA, SBA shall be entitled to demand
reimbursement from Bright PCS of the full amount thereof, plus an additional
administrative charge of five percent (5%) of the amount paid. In connection
therewith, the parties hereby acknowledge that such administrative charges are
intended to compensate SBA for its administrative and additional overhead costs,
fees and expenses reasonably anticipated and estimated to be incurred on account
of such action and are not intended to be imposed as a penalty.
In no event shall SBA be entitled to accelerate Rents due under any SLA. In
no event shall an event of default under one SLA constitute an event of default
under any other SLA or entitle SBA to exercise any remedies in relation to any
Site other than the Site which is the subject of the event of default provided,
however, that SBA shall be entitled to exercise any setoff rights it may possess
against Bright PCS, whether arising under this MSA or by operation of law,
against any SLA.
12. TERMINATION RIGHTS OF BRIGHT PCS. In addition to, and not in lieu of,
any other rights of termination set forth herein, Bright PCS may on one or more
occasions terminate any SLA without any penalty or further liability as follows:
(a) during any Renewal Term upon not less than sixty (60) days' prior
written notice to SBA if, notwithstanding the exercise of Bright PCS's
reasonable, diligent and good faith efforts, Bright PCS is unable to obtain or
maintain the FCC license or other governmental approval or permit required to
continue to utilize the Site in the manner then currently utilized;
11
(b) upon not less than thirty (30) days' prior written notice to SBA
if, through no fault of Bright PCS, SBA may no longer lawfully operate the SBA
Improvements as a wireless communications facility or may no longer lawfully
maintain the Tower on the BTS Site;
(c) upon not less than thirty (30) days' prior written notice to SBA
if Bright PCS determines, in its reasonable discretion exercised in good faith,
that the BTS Site has experienced or suffered, or hereafter experiences or
suffers, an environmental contamination or other hazardous substance release
through no fault of Bright PCS that was not disclosed in an environmental
assessment provided to Bright PCS prior to the execution of the SLA;
(d) upon not less than six (6) months' prior written notice to SBA for
no reason or any reason at all after the expiration of the Initial Term.
In the event that Bright PCS terminates the SLA for any Site pursuant to
this Paragraph 12, Bright PCS shall, upon such termination, effect a timely
removal of its Equipment and transfer to SBA all of its right, title and
interest, without representation or warranty, to any concrete foundations, tower
mounting platforms, power poles, utility service entrance equipment, cabling and
conduit remaining at such Site.
13. ADDITIONAL WARRANTIES AND COVENANTS. So long as this MSA is in effect,
SBA hereby further covenants, warrants and agrees as follows:
(a) SBA shall not exercise any right of termination available to SBA
as the tenant under any Ground Lease except in a Renewal Term and may only then
exercise a right to terminate the Ground Lease if SBA exercises such right to
protect safety or property or SBA reasonably believes that continued leasing of
the Site will cause or has caused SBA to incur liability exceeding the fair
market value of the Site. SBA may not exercise this termination right unless SBA
gives Bright PCS at least 30 days notice. This notice shall give Bright PCS the
right to cause an Acquisition of the Site as described in Paragraphs 9(c) and
(d) of this MSA. Bright PCS must accept the offer within ten (10) days of
receipt of the notice. If SBA fails to receive a response within the ten (10)
day period, Bright PCS will be deemed to have rejected the offer, and SBA will
have the right to terminate the Ground Lease. If Bright PCS accepts the offer,
an Acquisition will occur as described in Paragraphs 9(c) and (d) of this MSA.
Without limiting the generality of the foregoing, in the event of any bankruptcy
filing or other insolvency proceeding by or against SBA in which the Ground
Lease is rejected, or sought to be rejected, by SBA or SBA's trustee or other
representative of SBA's bankruptcy estate, SBA shall invoke any and all rights
under 11 U.S.C. ss. 365(h) or any other applicable provision (or any successor
provision) to continue SBA's occupancy of the BTS Site so as to permit Bright
PCS's continued occupancy and use of the Site as authorized herein;
(b) SBA shall duly and punctually perform each and every obligation of
the "Lessee" under (and as defined in) the Ground Lease and shall not cause or
permit the occurrence of any event of default on the part of the "Lessee"
thereunder;
12
(c) SBA shall not surrender, or offer to surrender, any BTS Site to a
Ground Lessor;
(d) SBA shall not enter into any amendment of a Ground Lease that
would adversely affect any right or remedy of Bright PCS hereunder or under the
applicable SLA;
(e) In the event of Ground Lessor's failure to observe or perform a
warranty or covenant of such Ground Lessor under the applicable Ground Lease
which has an adverse affect upon Bright PCS's permitted use or Bright PCS's
governmental permits, SBA shall use diligent and good faith efforts to compel
Ground Lessor's observance or performance of such warranty or covenant;
(f) As promptly as possible upon SBA's receipt thereof, SBA shall
provide to Bright PCS a copy of any notice of default received by SBA under a
Ground Lease; any notice of a bankruptcy, receivership or other insolvency case
or proceeding affecting a Ground Lessor or a BTS Site; and any notice,
complaint, order or decree affecting, or seeking to affect, the status of a
Tower or the operation of a BTS Site as a wireless communications facility. In
the event that SBA provides to a Ground Lessor any notice of a default by such
Ground Lessor under the Ground Lease, SBA shall simultaneously provide a copy of
such notice to Bright PCS. SBA will not terminate a Ground Lease due to such
default by a Ground Lessor except during a Renewal Term and only then if SBA
first offers to assign such Ground Lease to Bright PCS, in which event Bright
PCS shall have the right to take an assignment of the Ground Lease and to cause
an Acquisition. Bright PCS shall provide notice to SBA of the intent of Bright
PCS to accept an assignment of a Ground Lease within ten (10) days of the date
that Bright PCS receives a notice of such an event from SBA. The failure of
Bright PCS to tender said notice to SBA within ten (10) days of the date that
Bright PCS receives a notice of such an event from SBA shall constitute a waiver
of Bright PCS's right to accept an assignment of the Ground Lease;
(g) SBA shall not authorize, permit or allow any third party to use
any portion of a BTS Site in violation of applicable laws, regulations, codes or
ordinances (including, without limitation, any legal requirements governing
radio frequency emissions) or in violation of the applicable Ground Lease; and
(h) SBA shall maintain at its expense the Tower and any other SBA
improvements on the BTS Site in accordance with applicable laws, codes,
ordinances and regulations, including any applicable lighting, painting or other
marking requirements. In the event that a Tower is subject to lighting
requirements under any applicable laws, ordinances, codes or regulations, SBA
shall maintain an alarm system to monitor the operation of such lighting, and
Bright PCS may install at its expense a tie-in monitor or alarm to inform Bright
PCS of the operation of such lighting. SBA shall indemnify and hold Bright PCS
harmless from and against any actions, claims, proceedings, damages,
liabilities, fees, fines, expenses and other losses suffered or incurred by
Bright PCS in connection with the tower lighting system, except such matters as
may have been suffered or incurred solely as the result of Bright PCS's
negligence or willful misconduct. Notwithstanding the foregoing, the maintenance
of the tower lighting system shall be the responsibility of SBA immediately upon
the execution of such SLA. In the event that Bright PCS discovers that one or
13
more lighting systems which are required by any governmental agency are
malfunctioning, Bright PCS shall notify SBA at the following telephone number,
which number shall be monitored by SBA 24 hours a day, 7 days a week:
1-888-950-7483 (SITE). Bright PCS shall be entitled to take any action which it
deems reasonably necessary, including repairing such lighting system and/or
notifying the FAA, FCC or any other governmental agency without any liability
whatsoever to SBA for such actions if SBA fails to follow the applicable
government procedures beyond applicable notice and grace periods. SBA shall
maintain each Tower in good condition and repair.
(i) SBA does hereby agree to indemnify and hold Bright PCS harmless
from any and all losses, damages, fines, penalties or costs of any kind which
may arise from the improper design, maintenance or operation of a Tower or tower
lighting systems, or which may be imposed by the FAA, FCC or any other federal,
state or local agency arising from the improper design, maintenance or operation
of a Tower or tower lighting systems unless arising from Bright PCS's actions.
Should Bright PCS be cited because a Site is not in compliance through no fault
of Bright PCS and, should SBA fail to cure the conditions of noncompliance
within the time to cure the non-compliance as required by the applicable
governmental agencies, Bright PCS may either terminate the applicable SLA or,
with prior written notice from Bright PCS to SBA and allowing SBA a reasonable
opportunity to cure, proceed to cure the conditions of noncompliance at SBA's
expense. Amounts of all reasonable expenses to cure such conditions of
non-compliance, together with any such fine or citation paid by Bright PCS, may
be deducted by Bright PCS from the Rent.
(j) If antenna power output ("RF Emissions") are presently or
hereafter become subject to any restrictions imposed by the FCC for RF Emissions
standards on Maximum Permissible Exposure ("MPE"), or if the Tower otherwise is
or becomes subject to federal, state or local rules, regulations, restrictions
or ordinances, Bright PCS shall comply with SBA's reasonable requests for
modifications to Bright PCS's Equipment which are reasonably necessary for SBA
to comply. SBA shall take all measures to ensure that all other lessees,
sublessees and licensees comply, with such limits, rules, regulations,
restrictions or ordinances. The RF Emissions requirements of Bright PCS shall be
superior to the requirements of any other occupants of the BTS Site, provided,
however, that in no event shall Bright PCS's RF Emissions exceed any limitations
imposed by the FCC for the operation of equipment by a single, PCS or comparable
tenant. If an engineering evaluation or other power density study be performed
to evaluate RF Emissions compliance with MPE limits is required under applicable
law, SBA or other lessees shall bear all costs of such an evaluation or study.
If said study indicates that RF Emissions at the facility do not comply with MPE
limits, then SBA and all of SBA's other lessees, licensees and sublessees shall
immediately take any steps necessary to ensure that they are individually in
compliance with such limits and shall cease or reduce operations until a
maintenance program or other mitigating measures can be implemented to comply
with MPE. At SBA's request, Bright PCS shall provide to SBA technical data
necessary for routine calculations of MPE compliance, including, but not limited
to, TPO gains, losses and operating frequencies.
14
(k) SBA at its sole cost and expense, except if such cost or expense
arises out of a negligent or wrongful act or omission of Bright PCS or its
contractors, shall monitor, maintain and repair each Tower such that Bright PCS
may utilize such Tower for the use permitted under Paragraph 5 of this MSA,
including, without limitation, lighting systems and markings and the structural
integrity of each. Tower installation, maintenance and repair of the Tower must
comply with all laws applied in a manner consistent with standard industry
practices except for minor noncompliance that do not affect Bright PCS's rights
and privileges under this MSA.
14. RELOCATION.
(a) Following the date of this MSA, Bright PCS shall have the right,
at Bright PCS's sole cost and expense, to relocate the Tower Space at any Site
to another location on the Tower (the "Relocated Tower Space"), provided that
Bright PCS must first obtain SBA's prior written consent, which consent shall
not be unreasonably conditioned, delayed or withheld.
(b) Following any such relocation, the Relocated Tower Space shall
thereafter be deemed the "Tower Space" for all purposes under this MSA and the
applicable SLA, shall be leased to and occupied by Bright PCS in accordance with
the terms and conditions of this MSA, and this MSA and the SLA shall be deemed
amended accordingly. Bright PCS's obligations to pay any expense or cost
incurred on account of such relocation shall survive any expiration or sooner
termination of this MSA.
15. FINANCING MATTERS. SBA hereby represents, covenants and agrees as
follows:
(a) SBA shall not grant, convey or cause to attach any security
interest in, to or against any of SBA's interest or title under any of the
Ground Lease, SBA's interest or title under any SLA, this MSA, any of the Tower
or any of the other SBA Improvements unless, and this MSA and the SLAs shall be
subordinate to the Security Interest if, the grantee or holder thereof (a
"Secured Party") and SBA duly execute and deliver to Bright PCS a
non-disturbance and attornment agreement ("NDA") in a form substantially the
same as that attached hereto as Attachment "B".
(b) Except for the attachment of a Security Interest as permitted
under Paragraph 15 (a) of this MSA, SBA shall not at any time during the Term
permit or allow the filing or other attachment of any lien, charge or other
encumbrance against the Site, the BTS Site, the Tower, or other SBA Improvements
on account of its work with respect thereto (other than liens that are inchoate
or otherwise attach by operation of law and subsequently accrue or secure the
payment of a subsequently accruing obligation, but in all events subject to the
requirement to discharge same as provided in the next sentence hereof), or
otherwise during the SLA Term on account of SBA's acts or omissions or the acts
or omissions of its lessees, sublessees or licensees. Without limiting the
foregoing, SBA shall discharge of record, whether by bond, payment or otherwise,
any such lien, charge or encumbrance prohibited under this Paragraph 15 within
thirty (30) days after receipt of actual notice of the filing or attachment
thereof.
15
(c) Bright PCS shall not at anytime during the Term permit or allow
the filing or other attachment of any involuntary lien, charge or encumbrance
against the Equipment, Site, the BTS Site, the Tower, any SLA or this MSA on
account of its work with respect thereto (other than liens that are inchoate or
otherwise attached by operation of law and subsequently accrue or secure the
payment of the subsequently accruing obligation, but in all events subject to
the requirement to discharge same as provided in the next sentence hereof), or
otherwise during the Term on account of Bright PCS's acts or omissions. Without
limiting the foregoing, Bright PCS shall discharge of record, whether by bond,
payment or otherwise, any such lien, charge, or encumbrance prohibited under
this Paragraph 15 within thirty (30) days after receipt of actual notice of the
filing or attachment thereof.
16. CASUALTY AND CONDEMNATION. If the whole or any substantial part of a
Site shall be taken by any public authority under the power of eminent domain so
as to interfere with Bright PCS's use and occupancy thereof, then the term of
the applicable SLA shall cease on the part so taken on the date of possession by
such authority of that part, and any unearned Rent paid in advance of such date
shall be refunded by SBA to Bright PCS within thirty (30) days of such
possession, and Bright PCS shall have the right to terminate the applicable SLA
upon written notice to SBA, which notice shall be delivered by Bright PCS within
thirty (30) days following the date notice is received by Bright PCS of such
taking or possession. If Bright PCS chooses not to terminate the applicable SLA,
the Rent shall be reduced or abated in proportion to the actual reduction or
abatement of Bright PCS's use of the Site. If all or a portion of the Site is
destroyed, rendering the Site unusable, Rent will be suspended until the Site is
restored. SBA shall have a period of one hundred twenty (120) days to restore
the Site. If the restoration is not completed within one hundred twenty (120)
days, then Bright PCS shall have the right to terminate the applicable SLA.
17. TAXES.
(a) Bright PCS shall pay, on or before the due date thereof, all
personal property taxes levied against the Equipment and all taxes levied
against the Rent except for income taxes payable by SBA. If the assessed value
of the BTS Site is increased by inclusion of the Equipment and SBA is liable for
the payment of such increase in taxes, then Bright PCS shall pay to SBA, within
thirty (30) days after receiving a written request for payment or at least
fifteen (15) days prior to the due date of such taxes (whichever is later), the
part of such increase in taxes specifically attributable to the inclusion of the
Equipment. As a condition of such payment, SBA shall provide to Bright PCS an
original or copy of the tax assessment or other taxing authority documentation
evidencing such increase on account of the Equipment.
(b) SBA shall pay or cause to be paid, on or before the due date
thereof, personal property taxes levied against the Tower and SBA improvements
and all real property taxes for which SBA is liable under the Ground Lease or
applicable law.
16
18. INSURANCE AND SUBROGATION.
(a) SBA and Bright PCS shall each provide and maintain during the Term
commercial general liability insurance in an aggregate amount of Two Million
Dollars ($2,000,000) per site and name the other party hereto as an additional
insured on such policy or policies. Each party may satisfy this requirement by
obtaining appropriate endorsements to any master policy of liability insurance
maintained by such party. In no event shall the deductible under either party's
policy of commercial general liability insurance exceed Ten Thousand and No/100
Dollars ($10,000.00). The policy amount set forth in this Paragraph 18(a) shall
be reset on every fifth anniversary of the Date of this MSA to increase by a
commercially reasonable amount but not more than 115% of the policy amount set
during the preceding five (5) year period. The parties shall also maintain any
other insurance required by law, including workers' compensation insurance.
(b) To the extent permitted under both of the parties' insurance
policies, neither party shall be liable to the other (or to the other's
successors or assigns) for any loss or damage caused by fire or any of the risks
enumerated in a standard "All Risk" insurance policy, and, in the event of such
insured loss, neither party's insurance company shall have a subrogated claim
against the other. To the extent permitted under both of the parties' insurance
policies each party hereto shall obtain from its insurers under all policies of
fire, theft, and other casualty insurance maintained by it at any time during
the Term insuring or covering the BTS Site or the Site, or any portion thereof,
improvements thereon or operations therein, a waiver of all rights of
subrogation which the insurer might have against the other party.
(c) During the Initial Term and any Renewal Term of any SLA on a
particular Site, SBA shall maintain an all-risks policy of property damage
insurance on such Site which contains or provides for replacement cost coverage
is sufficient in amount to rebuild and replace the Tower and other SBA
Improvements in the event of any casualty loss. During the Initial Term and any
Renewal Term of any SLA on a particular Site, Bright PCS shall maintain an
all-risks policy of property damage insurance on such Site which contains or
provides for replacement cost coverage is sufficient in amount to rebuild and
replace the Equipment in the event of any casualty loss.
19. INDEMNIFICATIONS.
(a) Subject to Paragraph 18(b) above, Bright PCS shall indemnify,
defend and hold SBA harmless from and against any and all injury, loss, damage,
obligation, penalty or liability (or any claims in respect of the foregoing),
costs or expenses (including reasonable attorneys' fees and court costs) imposed
upon, incurred by or asserted against SBA and arising from or on account of: (i)
any occurrence, injury to or death of persons (including workmen) or loss of or
damage to property caused by the negligence or willful misconduct of Bright PCS
or its agents, employees or contractors, licensees, guests or invitees in the
use, operation, maintenance or repair of or on the BTS Site, excepting matters
caused by the negligence or willful misconduct of SBA and SBA's agents,
employees, representatives and contractors (and Bright PCS shall not be deemed
SBA's contractor for purposes hereof) or (ii) any failure by Bright PCS to
perform or comply with any of the applicable terms, covenants or conditions of
the MSA or any applicable SLA.
17
(b) Subject to Paragraph 18(b) above, SBA shall indemnify, defend and
hold Bright PCS harmless from and against any and all injury, loss, damage,
obligation, penalty or liability (or any claims in respect of the foregoing),
costs or expenses (including reasonable attorneys' fees and court costs) imposed
upon, incurred by or asserted against Bright PCS and arising from or on account
of: (i) any occurrence, injury to or death of persons (including workmen) or
loss of or damage to property caused by the negligence or willful misconduct of
SBA or SBA's agents, employees, contractors, licensees, subtenants, guests,
invitees or other persons on or about the BTS Site other than Bright PCS and
Bright PCS's agents, employees, representatives and contractors (and SBA shall
not be deemed Bright PCS's contractor for purposes hereof) or (ii) any failure
by SBA to perform or comply with any of the terms, covenants or conditions of
the Ground Lease, this MSA or any applicable SLA.
(c) SBA shall have no obligation to indemnify Bright PCS from or
against nor shall Bright PCS be entitled to assert a claim against SBA for
incidental and consequential damages arising from the negligence of SBA, but SBA
shall be responsible for incidental and consequential damages arising from the
intentional torts and willful misconduct of SBA or SBA's officers, agents,
employees, representatives, invitees and contractors. Likewise, Bright PCS shall
have no obligation to indemnify SBA from or against nor shall SBA be entitled to
assert a claim against Bright PCS for incidental and consequential damages
arising from the negligence of Bright PCS, but Bright PCS shall be responsible
for incidental and consequential damages arising from the intentional acts and
willful misconduct of Bright PCS or Bright PCS's officers, agents, employees,
representatives, invitees or contractors. The foregoing waivers of incidental
and consequential damages shall not apply to damages attributable to claims of
third parties to this MSA.
20. CELL SITE ON WHEELS. Should Bright PCS experience a loss in
communications service to its customers for any reason, Bright PCS shall be, and
hereby is, authorized, to the fullest extent permissible by applicable law and
ordinance and the Ground Lease, to bring onto the BTS Site a mobile wireless
communications facility or COW during such period of loss of service to the
extent space is available and further provided that the presence of the COW does
not materially interfere with the maintenance, repair and restoration efforts of
SBA or the other tenants. In the event that Bright PCS takes such action as the
result of a breach, or other negligent or wrongful act or omission of SBA,
Bright PCS shall be entitled to recover against SBA (or, at Bright PCS's option,
to set off against Rent payable hereunder) the reasonable costs and expenses
incurred by Bright PCS in implementing and maintaining such facility during such
period and of removing the same upon the re-establishment of regular service.
21. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and personally delivered against receipt, sent by
overnight delivery by a nationally recognized overnight carrier or mailed,
certified mail, return receipt requested, addressed as follows:
18
If to Bright PCS, to:
Bright PCS, LLC
68 East Main Street
P.O. Box 480
Chillicothe, Ohio 45601-0480
Attn: Vice President Technology
With a copy to:
Lewellen & Frazier PLC
415 North McKinley, Suite 1240
Little Rock, AR 72205
Attention: Todd A. Lewellen
If to SBA, to:
SBA Towers, Inc.
Onetown Center Road, 3rd Floor
Boca Raton, Florida 33486
Attention: Site Administration
All notices, demands and requests shall be effective upon actual delivery, if
personally delivered against receipt or delivered by overnight carrier, or, if
mailed on the date of the United States Postal Service postmark; provided,
however, that the time period in which a response or action, if any, to any
notice, demand or request must be given or completed shall commence to run from
the date of receipt of the notice, demand or request by the addressee thereof.
Rejection or failure to claim delivery of any such properly given notice, demand
or request, or any refusal to accept any such notice, demand or request, or the
inability to deliver because of changed address of which no notice was given,
shall be deemed to be receipt of the notice, demand or request sent as of the
date of the United States Postal Service postmark or the date of attempted
personal delivery or overnight carrier delivery, as the case may be. By
providing at least five (5) days' written notice thereof in accordance with this
Paragraph 21, either party shall have the right from time to time and at any
time during the term of this MSA to change its address and to specify as its new
address any address within the continental United States of America.
22. QUIET ENJOYMENT, TITLE AND AUTHORITY. SBA covenants and warrants that:
(i) SBA has full right, power and authority to execute this MSA and the power to
grant all rights and interests hereunder; (ii) SBA's execution and performance
of this MSA will not violate any laws, ordinances, covenants, or the provisions
of any mortgage, lease or other agreement binding on SBA; and (iii) subject to
matters of record as of an SLA Commencement Date and condemnation proceedings,
Bright PCS shall have the quiet enjoyment of each Site under this MSA during the
SLA Term. SBA shall indemnify Bright PCS from and against any loss, cost,
expense or damage including attorneys fees associated with a breach of the
19
foregoing covenant of quiet enjoyment. Subject to Paragraph 22 (iii), Bright PCS
shall not be disturbed in its use and occupancy of such Site or in the exercise
of its rights under this MSA or the applicable SLA as long as Bright PCS is not
in default hereunder beyond any applicable grace or cure period. Bright PCS
covenants and warrants that: (i) Bright PCS has the full right, power and
authority to execute this MSA and perform its obligations hereunder, and (ii)
Bright PCS's execution and performance of this MSA will not violate any laws,
ordinances, covenants, or the provisions of any mortgage, lease or other
agreement binding on Bright PCS.
23. ENVIRONMENTAL LAWS.
(a) Bright PCS, its heirs, grantees, successors, and assign shall
indemnify, defend, reimburse and hold harmless SBA from and against any and all
damages, caused by activities conducted on a Site by Bright PCS, and either (i)
arising from the presence of any substance, chemical or waste identified as
hazardous, toxic or dangerous in any applicable federal, state or local law or
regulation including petroleum or hydrocarbon based fuels such as diesel,
propane or natural gas (collectively, "Hazardous Materials") introduced by
Bright PCS upon, about or beneath a Site or migrating from such Site, or (ii)
arising out of the violation by Bright PCS of any environmental requirements
applicable to a Site or applicable to the activities of Bright PCS on such Site.
Bright PCS covenants that it shall not nor shall Bright PCS allow its employees,
agents or independent contractors to treat, store or dispose of any Hazardous
Materials on the BTS Site except in accordance with applicable laws.
(b) Except as set forth above, SBA, its heirs, grantees, successors,
and assigns shall indemnify, defend, reimburse and hold harmless Bright PCS from
and against any and all damages arising from (i) the presence of Hazardous
Materials upon, about or beneath any BTS Site or migrating to or from the BTS
Site introduced by SBA or its other tenants, or (ii) arising out of the
violation by SBA or its other tenants of any environmental requirements
pertaining to the BTS Site and any activities thereon.
24. ASSIGNMENT AND SUBLEASING.
Either party may assign all or a portion of its rights, title or interests
hereunder or under a particular SLA, provided, however, that the proposed
assignee shall agree in writing to be bound by the terms and conditions of this
MSA and each applicable SLA. In the event that the proposed assignee provides
audited (i) balance sheets and (ii) statements of operations prepared in
accordance with GAAP which indicate that the assignee has a financial position,
as measured by reference to such assignee's net worth, operating results, and
working capital, which is comparable to that of the assigning party's best
financial position using the same formula during the previous three (3) years
but in no event prior to the date of this MSA, the assigning party shall be
released from any and all obligations under the assigned instruments and for the
assigned Sites. No such assignment by either party shall affect the rights and
obligations of the other party under this MSA. In the event that the proposed
assignee does not have a financial position (as defined above) which is
comparable to the assigning party's best financial position during the previous
three (3) years, but in no event prior to the date of this MSA, the assigning
party shall remain liable for all obligations under the assigned instruments and
for the assigned Sites. Bright PCS shall not be entitled to assign its interest
under this MSA or an SLA to an entity which utilizes a spectrum different than
20
that of Bright PCS unless it first obtains SBA's prior written consent which
consent shall not be conditioned or unreasonably withheld or delayed by SBA. SBA
acknowledges that its consent to a proposed assignment by Bright PCS to an
entity which operates at a spectrum different from Bright PCS's will be
unreasonably withheld if the operation at said spectrum will not cause
interference with the operation of other equipment at each applicable BTS Site
affected by the SLA proposed to be assigned by Bright PCS. Bright PCS shall have
no right to sublease or partially assign its rights under any SLA unless it
first obtains SBA's prior written consent; however, SBA shall be entitled,
subject to the other provisions hereof, to sublease or partially assign its
rights under an SLA without obtaining Bright PCS's prior consent.
25. NOTICE OF PROPOSED THIRD PARTY USE; RIGHT OF FIRST REFUSAL.
(a) In the event that (i) SBA makes or receives a bona fide offer
pursuant to which a third party would enter into a lease, sublease, license or
other occupancy agreement with respect to any portion of a BTS Site (the "Right
of First Refusal Space") during the term of this MSA and (ii) SBA intends to
accept such offer, then SBA shall promptly send written notice (the "Right of
First Refusal Notice") to Bright PCS offering to lease or sublease the Right of
First Refusal Space to Bright PCS for the same rent and under the same terms and
conditions as the aforementioned bona fide offer (the "Right of First Refusal").
The Right of First Refusal Notice shall contain the following information:
(i) the price, terms, and condition for the occupancy of the
Right of First Refusal Space, the name of the person or entity making the offer
and a description of the Right of First Refusal Space;
(ii) evidence of the bona fide offer such as a written proposal,
term sheet or proposed contract or a summary of a verbal offer; and
(iii) provided that such third party is a provider or carrier of
wireless communications services, the frequency or frequencies, proposed antenna
radiation center location and radiated power level and type of technology
(whether CDMA, TDMA, etc.) to be utilized by such third party on the BTS Site.
(b) Bright PCS shall have three (3) days after Bright PCS's receipt of
the Right of First Refusal Notice in accordance with the notice provision in
Paragraph 21 hereof (which three (3) day period is referred to herein as the
"Acceptance Period") to elect to exercise the Right of First Refusal. If Bright
PCS elects to exercise the Right of First Refusal, Bright PCS shall notify SBA
in writing within the Acceptance Period of Bright PCS's intent to exercise such
right, whereupon the Right of First Refusal shall become a binding contract for
the lease or sublease of the Right of First Refusal Space and Bright PCS shall
lease or sublease the Right of First Refusal Space in accordance with such rent,
terms and conditions. If Bright PCS does not notify SBA in writing within the
Acceptance Period of Bright PCS's election to exercise its Right of First
Refusal on such terms and conditions, Bright PCS's right to exercise its Right
21
of First Refusal on such terms and conditions shall terminate. This Paragraph 25
(b) shall not be deemed to limit or alter Bright PCs's relocation rights set
forth in Paragraph 14 of this MSA or to relieve Bright PCS of its obligations
under the SLA prior to the exercise of the Right of First Refusal by Bright PCS.
26. RIGHT OF FIRST REFUSAL TO PURCHASE.
(a) Except in the instance of a sale of substantially all of the
assets of SBA or in the event of a merger or reorganization by SBA, if, at any
time during the Term SBA receives a bona fide offer from a third party to
purchase any BTS Site (the "Offer"), which Offer SBA is prepared to accept, SBA
shall promptly transmit to Bright PCs its written offer (the "First Refusal
Notice") to sell the BTS Site to Bright PCS on the same terms and conditions
specified in the Offer. Bright PCS shall have ten (10) business days within
which to accept such offer. If Bright PCS shall accept such offer by written
notice (the "Acceptance Notice") to SBA within said ten (10) day period (such
Acceptance Notice shall specify a closing date which is the earlier of thirty
(30) days from the date thereof or the closing date specified in the Offer),
such offer and acceptance shall constitute a contract between them for the sale
by SBA and the purchase by Bright PCS of the Site and shall not thereafter be
subject to rejection by either party.
(b) If the Offer is not so accepted by Bright PCS, SBA may sell the
BTS Site to such bona fide third party purchaser on the terms contained in the
Offer. Any such sale and transfer must be consummated within 180 days following
the expiration of the time herein above provided for the acceptance of the Offer
by Bright PCS. If the BTS Site is sold to such third party, the sale shall be
subject to this MSA and the applicable SLA and all of the provisions hereof,
including the right of first refusal provided in this Paragraph 26.
27. WAIVER OF SBA'S LIEN. SBA hereby waives any and all lien rights it may
have, statutory or otherwise, with respect to the Equipment or any portion
thereof. The Equipment shall be deemed personal property for purposes of this
MSA and any SLA, regardless of whether any portion thereof is deemed real or
personal property under applicable law.
28. CONFIDENTIAL INFORMATION.
(a) USE OF CONFIDENTIAL INFORMATION. In order to permit the parties to
perform their respective obligations under this MSA, 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 MSA shall
constitute "Confidential Information". Each party shall use all Confidential
Information solely for the purpose of performing its obligations under this MSA.
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 Bright PCS's
Confidential Information to a competitor of Bright PCS. Bright PCS agrees not to
disclose any of SBA's Confidential Information to a competitor of SBA.
(b) EXCEPTIONS. The aforementioned restrictions shall apply to all
Confidential Information with the exception of the following:
22
(i) Confidential Information which is made public by either party
while performing under this MSA 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 Bright PCS 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 parry 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.
29. MISCELLANEOUS.
(a) Each party agrees to furnish to the other and to a person or
entity designated by the requesting party, within twenty (20) days after receipt
of written request such truthful estoppel information as either party may
reasonably request.
(b) Each party agrees to execute any documents (including a short form
or memorandum of lease, easement agreement, or both) requested by the other
party to confirm of record its rights under this MSA or any SLA (but excluding
the economic terms hereof). Unless the laws of the state in which the BTS Site
is located prohibit the recordation of a short form or memorandum of lease,
neither party shall record this MSA, but may record, in lieu thereof, the
aforementioned short form or memorandum of lease or the SLA. In the event of a
recordation prohibition described above, either party may record any SLA. Either
party may record any easement agreement.
(c) This MSA and the BTS Agreement including all SLAS, exhibits
attached hereto and incorporated herein by reference constitutes the sole and
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all understandings, contracts, promises, covenants,
representations, statements, agreements and undertakings (whether written or
oral), with respect thereto made prior to, the execution and delivery of this
MSA. This MSA or any SLA may not be modified or amended, except by a written
23
instrument signed by both parties hereto. This MSA, SBA's rights and Bright
PCS's rights hereunder shall be deemed to be and hereby are incorporated by
reference into each SLA for a Site and this MSA and each SLA shall run with and
burden title to each Site and BTS Site and, except as otherwise provided herein,
the provisions of this MSA and each SLA shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, administrators,
executors, legal representatives, successors and permitted assigns. The
paragraph captions and headings used in this MSA are for convenience of
reference only and shall not affect the construction to be given any of the
provisions hereof. If the time period or date by which or on which any right,
option or election provided under this MSA must be exercised or by which or on
which any act required hereunder must be performed, or by which or on which any
notice must be given or received, expires or occurs on a Saturday, Sunday or a
holiday observed by state chartered or national banks in the state or
commonwealth in which the Site are located, then such time period or date shall
be automatically extended through the end of the next day which is not a
Saturday, Sunday or such a holiday. All exhibits attached to this MSA and
referred to herein are deemed incorporated in this MSA by reference.
(d) Whenever possible, each provision of this MSA shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this MSA shall be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this MSA.
(e) This MSA does not, and shall not be construed to, create a
partnership or joint venture or any other relationship between SBA and Bright
PCS other than the relationship of lessor and lessee under the laws of the state
or commonwealth in which each BTS Site is located.
(f) This MSA shall be governed by, and construed in accordance with
the laws of the state where the applicable Site is situated.
(g) This MSA may be executed in two or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by the each of the parties, it being
understood that all parties need not sign the same counterpart.
(h) Bright PCS shall be entitled to pursue NDAs with the Ground
Lessors for each Site; provided, however, that SBA shall have the right to
review and approve, which approval shall not be unreasonably conditioned,
delayed or withheld, all correspondence which is sent to the Ground Lessors.
Bright PCS shall provide SBA with copies of all such correspondence for SBA's
files.
(i) Bright PCS and SBA hereby represent, agree and acknowledge that no
broker or other person is entitled to claim or to be paid a commission as a
result of the execution and delivery of this MSA. Each of the parties shall
indemnify, defend and hold the other party harmless for all claims, damages,
liabilities and expenses (including attorney's fees) arising from a
misrepresentation arising from the first sentence of this paragraph.
24
(j) Notwithstanding anything to the contrary contained in this MSA,
faxed signatures on this MSA shall be binding as though such signatures were
original ink signatures.
(k) Notwithstanding anything to the contrary contained in this MSA,
the terms of this MSA shall apply only to Region 1, which is comprised of BTAs
23, 39, 73, 78, 80, 126, 143, 155, 197, 233, 255, 280, 294, 342, 359, 424 and
487. Bright PCS represents and warrants that Bright PCS shall not issue any
Search Rings (as defined in the BTS Agreement) to any entity during the Site
Acquisition Term (as defined in the BTS Agreement) in Region 2, which is
comprised of BTA 229. This MSA does not apply to Region 2 as a result of this
representation. In the event that Bright PCS issues a Search Ring to any entity
in Region 2 during the Site Acquisition Term, such Search Ring and all other
Search Rings issued in Region 2 shall be subject to the BTS Agreement and this
MSA, and Region 2 shall be subject to the exclusivity provisions of Section
_1.7_ of the BTS Agreement, except that (i) the Rent for Sites within such
Region 2 Search Rings shall be $1,300 a month subject to a three (3) % annual
increase; and (ii) Bright will be required to execute an Antenna Site Agreement
substantially similar to the form attached as Exhibit B to the Master Site
Agreement dated as of August 17, 1999, by and between BTS Company and Horizon
Personal Communications, Inc. ("Horizon MSA"), to lease space on 20 tower sites
owned by BTS Company in Region 2 for $1,300 monthly Rent, subject to a 3% annual
increase and an initial one (1) year abatement, to the extent Horizon has not
already done so pursuant to the Horizon MSA.
IN WITNESS WHEREOF, SBA and Bright PCS have duly executed and
delivered this MSA. The party last executing this MSA shall insert the date of
such execution on the first page hereof, which date shall be the Date of this
MSA.
BTS COMPANY:
SBA TOWERS, INC.
By: /s/ Jeffrey A. ???
-------------------------------
Title: Senior Vice President
Attest:
Title: Assistant Secretary
[CORPORATE SEAL]
BRIGHT PCS, LLC
By: /s/ Mark J. Rekers
------------------------------
Name: Mark J. Rekers
Title: Secretary
ATTACHMENT "A"
SLA
SITE LEASE ACKNOWLEDGMENT
This Site Lease Acknowledgment ("SLA") is made and entered into as of this
____ day of ________ 1999, by and between Bright Personal Communications
Services, LLC, hereinafter designated as "Bright PCS" and
_____________________________, hereinafter designated as "SBA", pursuant and
subject to that certain Master Site Agreement ("MSA") by and between the Parties
hereto, dated as of October __, 1999. All capitalized terms have the meanings
ascribed to them in the MSA.
1. The Site leased by SBA to Bright PCS shall consist of the Cable Path,
Easements, Tower Space, and Ground Space, as those terms are defined in the MSA.
The Site is a portion of that certain real property, located in the City of
__________, the County of ____________, and the State of __________, more
particularly described in the Memorandum of Lease which is recorded in Book
____, Page ____ [or as Instrument Number ____] in the office of the ____________
of ____________ County, ______________ (the "BTS Site"). The BTS Site is
described in Exhibit "1" attached hereto and made a part hereof.
2. The commencement date of the SLA ("SLA Commencement Date") is
____________, 1999. The first (1st) monthly rental payment is due and payable by
Bright PCS to SBA on the SLA Commencement Date in accordance with Paragraph 4 of
the MSA. Any future rent adjustments shall be calculated in accordance with
Paragraph 4 of the MSA.
3. The term of this SLA is five (5) years beginning on the SLA Commencement
Date. The term of the SLA will automatically renew for three (3) additional
consecutive five (5) year terms unless Bright PCS notifies SBA in writing of
Bright PCS's intention not to renew as provided in Paragraph 3(c) of the MSA.
4. Bright PCS has been granted certain preferential rights pursuant to the
MSA which may affect subsequent tenants or purchasers of the BTS Site. These
preferential rights include a right of first refusal to purchase the BTS Site,
the right of first refusal to lease additional space on the tower, the right to
relocate its equipment to a different height on the tower, the right to install
additional equipment on the BTS Site (subject to such limitations to install,
modify, or replace the equipment as may be provided in the MSA), the right to
place a mobile telecommunications facility on the property in the event the
existing tower facilities are damaged or destroyed, and the right to be free
from interference from subsequent tenants.
25
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their respective seals the day and year first above written.
BRIGHT PCS, LLC
ATTEST: ________________________
_________________________________ By: _________________________________
Title:_______________________________
SBA TOWERS, INC.
ATTEST: ________________________
_________________________________ By:__________________________________
Title:_______________________________
[ACKNOWLEDGEMENTS]
26
EXHIBIT "L" TO THE SLA
LEGAL DESCRIPTION OF THE BTS SITE
27
ATTACHMENT "B"
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
28
FIRST ADDENDUM
TO
MASTER SITE AGREEMENT
THIS FIRST ADDENDUM TO MASTER SITE AGREEMENT ("Addendum") is made and
entered into this _____ day of April, 2000 by and among SBA Towers, Inc.
("SBA"), Bright Personal Communications Services, LLC ("Bright") and Horizon
Personal Communications, Inc. ("Horizon") Bright and Horizon may hereinafter
collectively referred to as "Lessee".
WHEREAS, SBA and Horizon entered into that certain Master Site Agreement
("Horizon MSA") dated as of August 17, 1999;
WHEREAS, SBA and Bright entered into that certain Master Site Agreement
("Bright MSA") dated as of the day of October, 1999 ;
WHEREAS, SBA and Lessee both wish to modify the Horizon MSA and Bright MSA.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, SBA, Bright and Horizon do hereby
agree as follows:
1. Secured Financing Addendum. SBA and Lessee wish to modify both the
Horizon MSA and Bright MSA to incorporate the following provisions:
Financing. Lessee may, upon notice to SBA, mortgage or grant a
security interest in this MSA and the Equipment, and may assign this MSA
and the Equipment to any such mortgagees or holders of security interests
including their successors and assigns (hereinafter collectively referred
to as "Secured Parties"). In such event, SBA shall execute such consent to
leasehold financing as may reasonably be required by Secured Parties.
Provided that SBA has been given written notice of the name and addresses
of the Secured Parties by Lessee, SBA shall notify Lessee and Lessee's
Secured Parties simultaneously of any default by Lessee and to give Secured
Parties the same right to cure any default as Lessee except that the cure
period for any Secured Party shall not be less than 10 days after the
receipt of the default notice. If a termination, disaffirmance or rejection
of the MSA pursuant to any laws (including any bankruptcy or insolvency
laws) by Lessee shall occur, or if SBA shall terminate this MSA for any
reason, SBA will give to the Secured Parties prompt notice thereof and SBA
will give the Secured Parties the right to enter upon the Property or BTS
site, as applicable, during a 30-day period commencing upon the Secured
Party's receipt of such notice for the purpose of removing any Equipment.
Upon written request from Lessee, SBA shall execute and deliver a written
1
instrument in recordable form acknowledging the assignment and the
foregoing agreements of SBA.
2. Consent to Assignment. Notwithstanding anything to the contrary
contained in this MSA, SBA shall have the right to assign this MSA and any SLA
to an Affiliate of SBA, and upon such assignment, SBA shall be released from any
and all obligations under the assigned MSA or SLA, provided that such assignee
assumes all of SBA's obligations under such assigned agreement in writing at the
time of the assignment. For purposes of this MSA, "Affiliates" shall mean
companies which control are controlled by, or under common control with SBA. For
purposes of this MSA, the word "control" shall mean the ownership, directly or
indirectly, of 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.
3. No Other Modifications. The Horizon MSA and the Bright MSA shall remain
the entire agreement and understanding of SBA and Lessee with respect to the
subject matter thereof except as modified by this Addendum, and except as
specifically altered and amended herein, the Horizon MSA and the Bright MSA are
hereby ratified and confirmed in all respects, are in full force and effect, and
have not otherwise been amended, modified, extended or renewed, whether verbally
or in writing.
IN WITNESS WHEREOF, SBA, Horizon and Bright have executed this Addendum as
of the date and year first above written.
SBA TOWERS, INC.
Attest:________________________
Title:_________________________
HORIZON PERSONAL COMMUNICATIONS, INC.
Attest:________________________
Title:_________________________
BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC
Attest:________________________
Title:_________________________