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EXHIBIT 10.3
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AGREEMENT TO BUILD TO SUIT
By and Among
SBC WIRELESS, LLC,
for itself and as Agent for certain SBCW Parties Designated
on the signatures Page Hereof,
and
SPECTRASITE HOLDINGS, INC.
[TowerCo Parent]
and
SPECTRASITE COMMUNICATIONS, INC.
[Vendor, a wholly-owned subsidiary of TowerCo Parent]
December 14, 2000
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Page
TABLE OF CONTENTS
Page
Article I
Definitions
Section 1.01. Definitions. .......................................................................................1
Section 1.02. Use of Words and Phrases. .........................................................................10
Article II
Agreement Documents
Article III
Scope Of Work; Nature Of The Engagement
Section 3.01. Engagement of Vendor. .............................................................................11
Section 3.02. Identification of Collocation Sites. ..............................................................12
Section 3.03. Term. 14
Section 3.04. Time for Commencement and Completion. .............................................................14
Section 3.05. Relationship. .....................................................................................14
Section 3.06. Project Personnel. ................................................................................15
Section 3.07. Familiarity with Project and BTS Sites. ...........................................................16
Section 3.08. Quality Standard. .................................................................................16
Section 3.09. Books and Records of Vendor, Right of Inspection by SBCW. .........................................16
Section 3.10. Scope of the Project. .............................................................................17
Section 3.11. Available BTS Sites in Event of Condemnation. .....................................................19
Section 3.12. Additional Provisions Regarding SBCW Parties. .....................................................19
Article IV
Vendor's Undertakings
Section 4.01. Vendor's Undertakings. ............................................................................22
Section 4.02. Governmental Requirements and Permits. ............................................................23
Article V
Pre-Construction Phase
Section 5.01. Proposal of BTS Sites; Development Plan. ..........................................................25
Section 5.02. Due Diligence .....................................................................................26
Section 5.03. Utilities. ........................................................................................27
Article VI
Construction Phase
Section 6.01. General. ..........................................................................................28
Section 6.02. Performance of the Work ...........................................................................28
Section 6.03. Implementation Plan. ..............................................................................29
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Section 6.04. Site Schedule. ....................................................................................29
Section 6.05. Quality Review. ...................................................................................30
Section 6.06. Compliance with Requirements, Permits, Bonds and Insurance during Construction ....................30
Section 6.07. Work Permits. .....................................................................................30
Section 6.08. Construction by Vendor. ...........................................................................31
Section 6.09. Site Data. ........................................................................................31
Section 6.10. Warranty. .........................................................................................31
Section 6.11. Access and Inspection. ............................................................................32
Section 6.12. Completion. .......................................................................................33
Article VII
Guaranty Of Obligations
Section 7.01. TowerCo Parent's Guaranty. ........................................................................34
Article VIII
Vendor's Additional Obligations As To Bts Sites
Section 8.01. Hazardous Waste and Contamination Investigation. ..................................................35
Section 8.02. Geotechnical Subsurface and Soil Investigation. ...................................................35
Section 8.03. Additional Environmental Requirements .............................................................36
Section 8.04. FAA/FCC Compliance. ...............................................................................37
Article IX
Agreement To Sublease
Section 9.01. Execution of the Site Designation Supplement. .....................................................37
Section 9.02. Effect of Sublease and Site Designation Supplement. ...............................................38
Article X
Insurance
Section 10.01. Vendor's Insurance Requirements. .................................................................38
Section 10.02. Evidence of Insurance. ...........................................................................39
Section 10.03. Waiver of Subrogation. ...........................................................................39
Article XI
Liability; Indemnity
Section 11.01. Liquidated Damages. ..............................................................................39
Section 11.02. Indemnity of SBCW. ...............................................................................40
Section 11.03. Relationship to Insurance. .......................................................................41
Section 11.04. No Third-Party Beneficiaries. ....................................................................41
Article XII
Additional Representations And Warranties
Section 12.01. SBCW's Representations and Warranties.............................................................41
Section 12.02. Vendor's Representations and Warranties. .........................................................41
Section 12.03. TowerCo Parent's Representations and Warranties. .................................................42
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Article XIII
Default And Termination
Section 13.01. Default by Vendor. ...............................................................................42
Section 13.02. Obligations upon Termination. ....................................................................44
Section 13.03. Termination of Agreement by Vendor in Respect of SBCW's Bankruptcy. ..............................44
Article XIV
Force Majeure
Section 14.01. Force Majeure. ...................................................................................45
Section 14.02. Effect of Force Majeure. .........................................................................46
Article XV
Fire or Other Casualty; Condemnation
Section 15.01. Obligation to Reconstruct; Use of Insurance Proceeds. ............................................46
Section 15.02. Condemnation of the Tower or Site; Application of Compensation. ..................................46
Article XVI
Miscellaneous
Section 16.01. Notices ..........................................................................................47
Section 16.02. Assignment, Binding Effect. ......................................................................48
Section 16.03. Authorized Representatives. ......................................................................49
Section 16.04. Headings. ........................................................................................49
Section 16.05. Annexes, Exhibits and Schedules. .................................................................49
Section 16.06. Publicity. .......................................................................................49
Section 16.07. Severability. ....................................................................................49
Section 16.08. Waiver. ..........................................................................................50
Section 16.09. Rights Cumulative. ...............................................................................50
Section 16.10. Time of Essence, Prompt Responses. ...............................................................50
Section 16.11. Applicable Law. ..................................................................................50
Section 16.12. Waiver of Jury Trial. ............................................................................50
Section 16.13. Entire Agreement. ................................................................................50
Section 16.14. Modifications. ...................................................................................51
Section 16.15. Counterparts. ....................................................................................51
Section 16.16. No Brokers. ......................................................................................51
Section 16.17. Power of Attorney by SBCW Parties; Authorization. ................................................51
Annex and Schedules
Annex A Specifications
Annex B Vendor Responsibility Matrix
Annex C Project Data Requirements; Form of SARF
Annex D Form of Candidate Sheet; Notice to Proceed
Annex E Form of Punch List
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Annex F Certificate of Completion
Annex G Form of Site Data Package; Form of Due Diligence Package Annex H Form of
Site Schedule Annex I Collocation Services on TowerCo Existing Sites Summary
Annex J [Intentionally deleted] Annex K SBCW Standard Configuration Annex L
Minimum Standards for BTS Sites Annex M Minimum Standards for Potential
Collocation Sites Annex N Existing Contracts
Schedule 8.04 Rules, Policies, Regulations and Interpretations of SBCW Relating to or in Connection
with Applicable FAA and FCC Regulations
Schedule 3.10(c) Terms under which SBCW may acquire Sites and develop and construct its own Towers and
transfer such Towers to Southern Towers, Inc., an Affiliate of Vendor
Schedule 3.12(a)
Schedule 3.12(b)
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AGREEMENT TO BUILD TO SUIT
THIS AGREEMENT, made and entered into as of the 14th day of December, 2000
by and between SBC WIRELESS, LLC, a Delaware limited liability company ("SBCW"),
for itself and as Agent for certain SBCW Parties (as defined in Section 1.01)
designated on the signature pages hereto, SPECTRASITE HOLDINGS, INC., a Delaware
corporation ("TowerCo Parent"), and SPECTRASITE COMMUNICATIONS, INC., a
wholly-owned subsidiary of TowerCo Parent and a Delaware corporation ("Vendor").
W I T N E S S E T H:
WHEREAS, SBCW desires for Vendor to identify potential cell site locations
within specified search areas located within the Territory for build-to-suit
sites and to cause each such cell site selected by SBCW to be acquired or leased
by Vendor and to be developed, among other things, causing a tower and other
improvements to be designed, constructed and installed thereon, for the
non-exclusive use and occupancy by SBCW or SBCW Parties pursuant to the BTS
Sublease; and
WHEREAS, SBCW and Vendor desire to enter into this Agreement to set forth
their respective duties and responsibilities pertaining to such design,
construction and installation and other matters relating thereto and intend to
bind hereby only Vendor, SBCW and the SBCW Parties;
NOW, THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Article I
Definitions
Section 1.01. Definitions.
(a) The following capitalized terms shall have the following respective
meanings for purposes of this Agreement:
"Acquisition" means the acquisition by Vendor of a fee simple
title to or ground lease interest in each BTS Site, all investigations,
examinations, tests and inspections, and other due diligence activities
incidental thereto, and all legal activities incidental thereto.
"Affiliate" means with respect to either party, any individual
or firm, corporation, partnership, limited liability company,
association, trust or other entity which, whether directly or
indirectly, Controls, is Controlled by, or is under common Control with
the subject party. "Affiliation" means, with respect to two Persons,
the relationship of such Persons as Affiliates of each other.
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"Agreement" means this Agreement, including any Annexes,
Schedules and any amendments hereto or thereto.
"Agreement to Sublease" means the Agreement to Sublease dated
August 25, 2000, among TowerCo Parent, Vendor, SBC TowerCo Inc. and the
other Sublessor Entities named therein.
"BTS Rent" has the meaning given to such term in the BTS
Sublease.
"BTS Markets" has the meaning given to such term in Section
3.12(a).
"BTS Sites" means the cell tower site locations located
within the Territory that are or will be owned or leased by Vendor or
TowerCo Affiliates: (i) on which Vendor constructs or is to construct
Towers and Improvements pursuant to this Agreement; and (ii) on which
SBCW or a SBCW Party leases the Leased Space. BTS Sites include
Completed BTS Sites but excludes TowerCo Existing Sites.
"BTS Sublease" means the Sublease (BTS) of even date herewith
among TowerCo Parent, SpectraSite Communications, Inc. or SpectraSite
Wireless Towers, Inc. and SBCW.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks are authorized to close in New
York.
"Cingular" means Cingular Wireless, LLC or its successor, if
any, by merger, consolidation or sale of all or substantially all of
Cingular's or its successor's assets.
"Claim" has the meaning given to such term in Section 11.02.
"Collocation Services" has the meaning given such term in
Section 3.02.
"Communications Equipment" has the meaning given to such term
in the BTS Sublease.
"Completed BTS Sites" has the meaning given to such term in
Section 6.12(c).
"Completion," "Complete" or "Completed" means (i) Vendor's
receipt of zoning approvals and other Permits in accordance with all
Governmental Requirements, and all applicable FAA approvals and/or
antennas structure registration ("ASR") approvals (FCC Form 854 and
854R) have been appropriately filed; (ii) Vendor's completion of all
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items of construction in accordance with the Specifications and the
requirements of all Governmental Authorities so that SBCW or an SBCW
Party can use the Leased Space of the BTS Site without interference in
the conduct of its ordinary business activities; (iii) Vendor's
securing a certificate of occupancy or any other final municipal
approval from the applicable Governmental Authority; (iv) the issuance
by Vendor or SBCW, as the case may be, of the Completion Certificate;
(v) ready access by SBCW or an SBCW Party, its employees, agents and
invitees, to (A) during the construction period, the entire BTS Site
(including Tower and Improvements) and (B) after the Completion of
construction, the Leased Space; (vi) all the fixtures and equipment to
be installed by Vendor are installed and in good operating order; (vii)
the BTS Site is clean; and (viii) the Tower and the Improvements are
ready for the installation of SBCW's Improvements.
"Completion Certificate" means, as to each BTS Site, the
certificate of completion issued by the party which developed the BTS
Site (Vendor or SBCW, as the case may be) and countersigned by the
other party with respect to such BTS Site to the effect that the Work
is Completed in compliance with this Agreement, which certificate shall
be issued in accordance with Annex F attached hereto.
"Completion Data" means height verification certifications via
1-A survey, tape drop or some other agreed method, center line
measurements, exact location of all equipment on a Tower, and where
required, marking and lighting verification and correct posting of
Tower registration numbers.
"Completion Date" means the date on which the Tower and
Improvements are Completed with respect to each BTS Site, pursuant to
the Implementation Plan and the applicable Site Schedule.
"Compliance Data" means a 1-A survey of exact Tower location,
certified by a registered surveyor, together with a topography map plot
confirming the location and providing the address of the BTS Site,
FAA/FCC height verifications as certified by either a surveyor or an
independent contractor authorized to perform height measurements in
accordance with SBCW specifications, FAA approvals, where required (FAA
forms 7460-1, 7460-2), FCC Tower registration forms, where required
(FCC forms 854 and 854-R), certification that the Tower registration
number is posted at the BTS Site as required by the FCC regulations,
certification that correct marking/lighting is in place in accordance
with FAA requirements, and a completed NEPA/EPA checklist demonstrating
environmental compliance.
"Constructed Improvements" means (i) grounding rings for SBCW
and SBCW Party equipment shelters, (ii) connections for utilities
service from the meter to SBCW's Communications Equipment, (iii) one or
more foundations, concrete equipment pads or raised platforms for
SBCW's Communications Equipment, equipment shelters, buildings and
constructions, and (iv) any other Improvements built for SBCW's or an
SBCW Party's exclusive use in accordance with the Annexes.
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"Contract Manager" has the meaning given to such term in
Section 3.06(e).
"Control" means the ownership, directly or indirectly, of
sufficient voting shares of an entity, or otherwise the possession,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of an entity, whether through the
ownership of voting securities, by contract or otherwise.
"Designated SBCW Parties" has the meaning given to such term
in Section 3.12(a).
"Due Diligence Package" means collectively the documents in
the form of Annex G-2 and information collected by Vendor pursuant
thereto.
"Effective Date" means the date first above written, being the
date on which the parties have executed and delivered this Agreement.
"Environmental Assessment" means the "Phase I" (as defined by
the National Environmental Protection Agency) environmental assessment
of each BTS Site, and such further investigations as are reasonably
indicated by the results thereof, to be obtained by Vendor pursuant to
Article 8 hereof.
"Environmental Conditions" has the meaning given to such term
in the Agreement to Sublease.
"Environmental, Health and Safety Requirements" means all of
the terms and conditions of all permits, licenses and other
authorizations which are required under, and all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables which are contained in all
federal, state and local laws (including rules, regulations, codes,
judgments, orders, decrees, stipulations, injunctions and demand
letters issued, entered, promulgated or approved thereunder) relating
to public health and safety, worker health and safety or pollution or
protection of the environment, including laws relating to emissions,
discharges, releases or threatened releases of Hazardous Materials into
ambient air, surface water, ground water or lands or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials and all
provisions of FCC regulation 1.1307 et seq.
"Excusable Delay" means as to any BTS Site, a Force Majeure
event as to such BTS Site, or an extension or adjustment of the Site
Schedule only as it applies to the affected BTS Site, as provided for
and expressly permitted under the terms of this Agreement.
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"Existing POPs" means the sum of the POPs shown in Schedule
3.12(b) to this Agreement.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"Force Majeure" means those events constituting excuse from
timely performance by Vendor of any duty or obligation hereunder to
which it is subject, as such events are described in Article 13 hereof.
"Future Designated SBCW Party" has the meaning given to such
term in Section 3.12(a).
"Governmental Authority" means any federal, state, county or
municipal governmental authority, including all executive, legislative,
judicial and administrative bodies thereof.
"Governmental Requirements" means (i) all federal, state and
local laws, ordinances, and regulations and all orders and decrees of
bodies or all Governmental Authorities, which in any manner affect the
Services provided under this Agreement, Vendor's performance of its
obligations hereunder or the ownership, use or operation of the BTS
Sites, and (ii) all Environment, Health and Safety Requirements.
"Ground Lease" means, as to a given BTS Site, the ground
lease, easement or other right of use pursuant to which Vendor or a
TowerCo Affiliate holds a leasehold interest, leasehold estate or other
possessory interest therein.
"Ground Lease Effective Date" means, as to any Ground Lease,
the date of execution and delivery by Vendor or a TowerCo Affiliate of
a Ground Lease or, as to any option to enter into any Ground Lease, the
date on which such option is exercised.
"Hazardous Materials" has the meaning given to such term in
the BTS Sublease.
"Implementation Plan" means, as to each Site, a plan to be
prepared by Vendor that sets forth (i) a narrative description for each
phase of the Development of such BTS Site (pre-construction phase,
construction phase and post-construction phase and Services), and (ii)
an appropriate Site Schedule developed and agreed upon by the parties
pursuant to this Agreement and Annexes attached hereto, substantially
in the form of Annex H.
"Improvements" has the meaning given to such term in the BTS
Sublease.
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"Leased Space" has the meaning given to such term in the BTS
Sublease; except that (i) regardless of the actual number of antennas
and related equipment placed on the Leased Space of any BTS Site at the
time of the execution of the applicable Site Designation Supplement,
the Leased Space of such BTS Site shall include space for, and be
capable of supporting the following equipment or the tower load
equivalent of: (x) up to twelve (12) panel antennas consistent with the
(12) panel antenna arrays and related equipment specified in Annex K,
and (y) a microwave dish placed seventeen feet (17') below (measured
center-line to center-line) the location of such panels; provided,
however, that the size of such antennas and microwave dish shall not
exceed that of SBCW's configuration(s) for antennas and microwave
dishes as more particularly described in Annex K, and (ii) shall
include a sector frame for such antennas. With respect to any sublease
entered into at a Third Party Site as hereinafter provided, the Leased
Space shall be the demised premises described in such sublease.
"Liquidated Damages" has the meaning given to such term in
Section 11.01.
"Market Transfer" has the meaning given to such term in
Section 3.12(c).
"Notice to Proceed" means a written notice to proceed,
substantially in the form of the Notice to Proceed included in Annex D,
given by SBCW to Vendor pursuant to this Agreement.
"Obligations" has the meaning given to such term in Section
7.01.
"Original Market" has the meaning given to such term in
Section 3.12(b).
"Original Market Business" has the meaning given to such term
in Section 3.12(b).
"Permit Appeal Action" has the meaning given to such term in
Section 4.02(h).
"Permits" means any and all certificates, licenses, permits,
authorizations, registrations, consents, special use permits and other
approvals by the applicable Governmental Authorities having
jurisdiction in such matters required to be obtained, issued, granted
or received for the performance of the Work and Completion or the
Permitted Use (other than as to installation of SBCW's Communications
Equipment), including without limitation any and all Permits to be
issued by all Governmental Authorities that are required for the
construction of the Tower and Improvements related thereto.
"Permitted Use" has the meaning given to such term in the BTS
Sublease.
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"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, unincorporated business association
or Governmental Authority.
"Potential Collocation Sites" has the meaning given to such
term in Section 3.02.
"Project" means Vendor's performance of the Work and
construction of the Towers on the BTS Sites and the provision of the
Collocation Services if requested by SBCW.
"Punch List" has the meaning given to such term in Section
6.12(c).
"SARF" has the meaning given to such term in Section 5.01(a).
"SBCW" has the meaning given to such term in the Preamble to
this Agreement; provided that when appropriate "SBCW" shall also mean
the SBCW Party which becomes (or is contemplated to become) a lessee of
space at a site pursuant to this Agreement.
"SBCW's Communications Equipment" has the meaning given to
such term in the BTS Sublease.
"SBCW Indemnitee" means each of SBCW, SBCW's Affiliates, and
the respective directors, officers, employees, agents, contractors,
subcontractors, advisors and consultants of SBCW and SBCW Parties.
"SBCW's Improvements" has the meaning given to such term in
the BTS Sublease.
"SBCW Party" means corporations, partnerships, limited
liability companies or other entities which are Affiliates of Cingular
and whose names are set forth on the signature pages hereof, and such
additional Persons as become SBCW Parties pursuant to Section 3.12 of
this Agreement. For purposes of this Agreement, except as provided in
Section 3.12 of this Agreement, any Person which becomes an Affiliate
of Cingular after the date hereof is deemed not to be an SBCW Party.
"SBCW Sublease" has the meaning given to such term in Section
16.02.
"Scheduled Commencement Date" means, with respect to each BTS
Site, the date on which the Work on such BTS Site is scheduled to
commence pursuant to the applicable Notice to Proceed given by SBCW.
"Services" means all services required to be performed or
procured by Vendor subject and pursuant to the terms and conditions of
this Agreement including, without limitation: (i) identification of
potential new locations for BTS Sites within each designated search
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area and presentation of such potential BTS Sites to SBCW for final
selection; (ii) Acquisition of BTS Sites; (iii) construction and
installation of a Tower and Improvements on each of the BTS Sites; and
(iv) the identification of Potential Collocation Sites on TowerCo
Existing Sites and the provision of other Collocation Services if
requested by SBCW, all as more particularly described in this
Agreement, including the Annexes.
"Site Completion Date" means, as to each BTS Site, a date of
execution of the Completion Certificate for such BTS Site.
"Site Data Package" means collectively the documents in the
form of Annex G-1 attached hereto and the information collected by
TowerCo Parent pursuant thereto.
"Site Designation Supplement" has the meaning given to such
term in the BTS Sublease.
"Site Schedule" means a timetable prepared by Vendor and
reasonably approved in writing by SBCW with respect to each BTS Site
that describes the time periods and completion dates for each of the
activities necessary to complete the Work with respect to such BTS Site
in the form and consistent with Annex H and conforming to the dates
provided in this Agreement.
"SMS Agreement" means that certain Site Management Agreement
between Pacific Bell Mobile Services and Site Management Solutions,
Inc., dated July 27, 1999, as amended by the Addendum to Agreement of
even date therewith.
"Sold Market" has the meaning given to such term in Section
3.12(d).
"Space Subtenants" has the meaning given to such term in the
BTS Sublease.
"Specifications" means the drawings and technical
specifications for the Tower and Improvements, as set forth in Annex A.
"Substantially Complete" means, as to any BTS Site, that such
BTS Site is Complete, except for minor items listed on the Punch List
for such BTS Site that would not impair or adversely affect in any
material respect, or is not likely to impair or adversely affect in any
material respect, SBCW's or SBCW Party's use and operation of the
Leased Space on such BTS Site, including Communications Equipment.
"Substantially Completed BTS Site" means any BTS Site that
would be a Completed BTS Site, except for minor items listed on the
Punch List for such BTS Site that would not impair or adversely affect
in any material respect SBCW's or a SBCW Party's use and operation of
the Leased Space on such BTS Site, including Communications Equipment.
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"Swap Market" has the meaning given to such term in Section
3.12(b).
"Swap Market Business" has the meaning given to such term in
Section 3.12(b).
"Term" has the meaning given to such term in Section 3.03.
"Territory" means the United States of America, Puerto Rico
and the U.S. Virgin Islands.
"Third Party" has the meaning given to such term in Section
3.12(c).
"Third Party Site" has the meaning given to such term in
Section 3.02.
"Threshold" has the meaning given to such term in Section
3.12(c).
"Tower" means a wireless transmission tower structure. Towers
shall not include TowerCo Existing Sites and shall not include
rooftops, steeples, chimneys, water towers or other existing
structures, or other structures that would constitute "owned neutral
host infrastructure" or "in-building applications."
"TowerCo Existing Sites" means all wireless transmission
towers, now or hereafter owned or leased or operated under capital
leases by Vendor, TowerCo Parent or by any entity Controlled by TowerCo
Parent and located within the Territory, provided, however, that BTS
Sites shall not constitute TowerCo Existing Sites.
"TowerCo Parent" has the meaning given to such term in the
Preamble to this Agreement.
"Transferred Markets" has the meaning given to such term in
Section 3.12(c).
"Vendor Indemnitee" has the meaning given to such term in
Section 11.02.
"Warranty Period" has the meaning given to such term in
Section 6.10.
"Work" means Vendor's construction and installation of the
Tower and Improvements in accordance with the Specifications, and
includes labor necessary to Complete such construction and
installation, and materials and equipment for such construction and
installation, as required by this Agreement to be furnished by Vendor
or any subcontractor, for the construction and installation of the
Tower and Improvements.
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(b) Any other capitalized terms used in this Agreement shall have the respective
meanings given to them elsewhere in this Agreement.
Section 1.02. Use of Words and Phrases.
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Unless the context shall
otherwise indicate, the singular shall include the plural as well as the
singular number. "Herein," "hereby," "hereunder," "hereof," "herein before,"
"hereinafter," and other equivalent words refer to this Agreement and not solely
to the particular portion thereof in which any such word is used.
(b) Whenever in this Agreement either of the words "day" or "days" is used it
means a calendar day unless specifically stated to be a Business Day.
(c) SBCW and Vendor agree that any defined term used herein constituting a
document, instrument, drawing, survey, map, plan, technical description or other
writing, and any other reference herein to a writing, shall include originals or
copies of such writing and any and all amendments, supplements, modifications,
renewals, extensions, restatements or replacements of or to the same from time
to time.
Article II
Agreement Documents
This Agreement shall consist of the following documents, as amended
from time to time as provided herein:
(a) this Agreement document;
(b) the following Annexes and Schedules, which are incorporated herein by
this reference:
Annex A Specifications
Annex B Vendor Responsibility Matrix
Annex C Project Data Requirements; Form of SARF
Annex D Form of Candidate Sheet; Notice to Proceed
Annex E Form of Punch List
Annex F Certificate of Completion
Annex G Form of Site Data Package; Form of Due Diligence Package
Annex H Form of Site Schedule
Annex I Collocation Services on TowerCo Existing Sites Summary
Annex J [Intentionally Deleted]
Annex K SBCW Standard Configuration
Annex L Minimum Standards for BTS Sites
Annex M Minimum Standards for Potential Collocation Sites
Annex N Existing Contracts
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Schedule 8.04 Rules, Policies, Regulations and Interpretations of SBCW Relating
to or in Connection with Applicable FAA and FCC Regulations
Schedule 3.10(c) Terms under which SBCW may acquire Sites and develop and construct
its own Towers and transfer such Towers to Southern Towers, Inc.,
an Affiliate of Vendor
Schedule 3.12(a) Affiliates of Cingular bound by this Agreement
Schedule 3.12(b) BTS Markets
(c) such additional documents as are incorporated by reference.
If any of the foregoing are inconsistent, this Agreement shall prevail over
Annexes, Schedules and additional incorporated documents.
Article III
Scope Of Work; Nature Of The Engagement
Section 3.01. Engagement of Vendor.
(a) SBCW hereby engages Vendor, for the Term of this Agreement as provided in
Section 3.03, to develop and construct Towers and Improvements on the BTS Sites
(subject to any right of SBCW to terminate this Agreement under any applicable
provision of this Agreement), and perform the Services all as required by this
Agreement. SBCW reserves the right to construct and install all of the
Constructed Improvements and its Communications Equipment on the BTS Sites;
provided, however, that SBCW shall have the right to request that Vendor
construct and install one or more concrete equipment pads or raised platforms
capable of accommodating SBCW's or SBCW Party's buildings, huts or equipment
shelters at each BTS Site. The parties acknowledge that all Constructed
Improvements developed and constructed by SBCW or Vendor on any BTS Site are
intended to constitute a part of SBCW's Improvements, and are not intended to be
shared by Space Subtenants or constitute a part of the Improvements. The parties
further acknowledge that Improvements, other than Constructed Improvements, do
not constitute a part of SBCW's Improvements. Vendor hereby accepts such
engagement in accordance with the terms and conditions of this Agreement. Vendor
shall construct the Tower and Improvements at each BTS Site in accordance with
the Implementation Plan and applicable Site Schedule. Vendor shall perform and
be responsible for all responsibilities assigned to Vendor in the Vendor
Responsibility Matrix attached hereto as Annex B. In addition to the engagement
provided for in this Section 3.01, Vendor acknowledges and agrees that SBCW may
engage Vendor on behalf of any Affiliate of SBCW or of the SBCW Parties (e.g.,
Bell South wireless companies) to develop and construct up to a maximum of one
hundred (100) Towers and Improvements on BTS Sites located within the Territory
and to perform the Services as required under this Agreement for such Towers.
Upon the occurrence of the applicable events hereinafter described in this
Agreement, the applicable Affiliate of the SBCW Parties shall occupy the Leased
Space subject to the terms of the BTS Sublease.
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(b) Subject to Sections 3.02(a) and 3.02(b), Vendor's compensation for
Completion of the Work on BTS Sites pursuant to this Agreement and performance
of the Services, or any part thereof, will be derived solely from the payment of
the BTS Rent by SBCW pursuant to the BTS Sublease (notwithstanding that such BTS
Rent may be paid to an Affiliate of Vendor). The parties agree that the BTS Rent
payable by SBCW with respect to the Leased Space of any Completed BTS Site or
TowerCo Existing Site shall be $1400 per month, or such greater amount as is
provided in the BTS Sublease for any sites which become subject to the BTS
Sublease on or after the first anniversary hereof, subject to an annual increase
as provided in the BTS Sublease. This Section 3.01(b) shall survive any
expiration or termination of this Agreement.
Section 3.02. Identification of Collocation Sites.
(a) Vendor may, without delaying any of its obligations under this Agreement,
including, without limitation, its obligations pursuant to Article 5, at any
time during the Term, provide SBCW with a written notice proposing any TowerCo
Existing Site or any wireless transmission tower ("Third Party Site") owned,
leased or operated by any third party ("Third Party Owner"), within a search
area specified in the applicable SARF that would be suitable for the collocation
of SBCW's Communications Equipment ("Potential Collocation Sites"). SBCW shall
either accept the proposed site, or at SBCW's option, in the event that SBCW
reasonably believes that such site does not satisfy the minimum standards set
forth in Annex M, reject such site by sending notice of such election in writing
to Vendor within fifteen (15) days after the notice thereof. In addition, SBCW
may reject a Potential Collocation Site in writing within fifteen (15) days
after SBCW's receipt of Vendor's notice thereof if there then exists an
alternative site within such search area that, in SBCW's judgment, is also
suitable for the collocation of SBCW's Communications Equipment but that is
available to SBCW upon economic terms and conditions that are, in SBCW's
judgment, more favorable to SBCW. In the event SBCW pursues a Potential
Collocation Site (other than a Third Party Site), Vendor shall provide SBCW with
Compliance Data, a Site Data Package and a Due Diligence Package with respect to
such site within fifteen (15) days after receipt of SBCW's notice. With respect
to Third Party Sites, (A) the Due Diligence Package shall also include (i) a
copy of the Third Party Owner's standard form of sublease ("Third Party
Sublease"), if any, and (ii) copies of any existing leases of space at such
Third Party Site, to the extent the same are made available by the Third Party
Owner (the items to be delivered pursuant to this sentence, the "Third Party
Deliveries"); and (B) Vendor shall use commercially reasonable efforts to
deliver the Due Diligence Package to SBCW within 45 days after receipt of SBCW's
notice (it being agreed that failure to so deliver such Due Diligence Package
within such 45-day period shall not be a breach of this Agreement but shall
permit SBCW to revoke its notice that it wishes to pursue such Third Party
Site). With respect to Third Party Sites, SBCW shall have ten (10) business days
from its receipt of the Due Diligence Package to reject such Potential
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Collocation Site if the Third Party Sublease is not satisfactory to SBCW in its
reasonable judgment. If SBCW elects to become a tenant on a TowerCo Existing
Site, Vendor shall sublease the Leased Space thereon to SBCW or its Affiliate
pursuant to the BTS Sublease and SBCW and Vendor shall execute a Site
Designation Supplement for such TowerCo Existing Site. In the event that SBCW
elects to become a tenant on a TowerCo Existing Site on which there are existing
tenants, SBCW shall sublease the Leased Space subject to all provisions in
existing leases of space at such TowerCo Existing Site which give the tenants
under such leases rights that are superior to those of SBCW (provided that such
provisions have been made available to SBCW as part of the Due Diligence
Package). In the event that SBCW elects to become a tenant on a Third Party
Site, Vendor shall use reasonable efforts to cause the Third Party Owner to
sublease the Leased Space to SBCW or its Affiliate pursuant to a form reasonably
approved by SBCW and acceptable to the Third Party Owner. SBCW shall pay Vendor
for Vendor's search costs in connection with such accepted Third Party Site
(which costs shall include the cost of preparing and/or obtaining the Third
Party Deliveries) at the then current market rates for such search services. If
SBCW rejects a Potential Collocation Site as provided above in the event there
exists a suitable alternative site within the applicable search area, Vendor
shall have no further obligation with respect to that Potential Collocation Site
and SBCW shall be entitled to pursue such alternative site without reference to
this Agreement. Furthermore, if SBCW rejects or does not pursue a Potential
Collocation Site, Vendor shall keep performing all of its obligations hereunder,
including, without limitation, performing search Services in such search area as
provided in Article 5.
(b) If SBCW is interested in a Potential Collocation Site, Vendor may, upon
written notice thereof to SBCW, offer the performance of certain other
Collocation Services and the fees for such services set forth in Annex I (the
"Collocation Services") with respect to such Potential Collocation Site;
provided, that Vendor acknowledges that at any time during the Term, SBCW shall
have the right to engage any Person other than Vendor to perform such
Collocation Services. If the terms, conditions and fees in connection with such
Collocation Services are acceptable to SBCW, SBCW may engage Vendor to perform
such Collocation Services upon written notice to Vendor within five (5) Business
Days after receipt by SBCW of the offer from Vendor. If SBCW elects to engage
Vendor to perform such Collocation Services pursuant to this Section 3.02(b),
such Collocation Services shall be performed in compliance with the requirements
of this Agreement, including, without limitation, compliance with quality
standards, Governmental Requirements, Permits and Environmental Laws, in each
case as applicable to such Collocation Services. Vendor hereby acknowledges and
agrees that any and all fees in connection with performance of any Collocation
Services shall be due and payable only if SBCW installs its Communications
Equipment on a Potential Collocation Site. SBCW shall retain Vendor to install
all lines, antennas and SBCW's other Communications Equipment on all TowerCo
Existing Sites and BTS Sites ("Installation Services") provided that SBCW and
Vendor agree on the cost of the Installation Services, such cost to be based
upon the current market rates for the Installation Services for the area in
which the site is located. If Vendor performs the Installation Services, the
Installation Services shall be performed in accordance with the provisions of
the immediately preceding sentence and SBCW shall pay the agreed-upon costs
thereof within 10 days after delivery of a reasonably detailed invoice therefor.
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Section 3.03. Term.
(a) Subject to Article 13, this Agreement shall commence on the Effective Date,
and shall continue until the fifth (5th) anniversary of the Effective Date (the
"Term"), plus such additional time as may be required (i) for an aggregate
number of new Towers to be developed and Completed by either Vendor or SBCW
(either itself or through a third party pursuant to Section 3.10(c)) equal to
the number of Towers that SBCW elected, pursuant to Section 3.10(d), to become
"Substitute Sites" under the Agreement to Sublease and (ii) for the parties to
satisfy their respective obligations hereunder to the extent such obligations
arose or accrued prior to such fifth (5th) anniversary.
(b) Notwithstanding anything to the contrary contained herein, the parties
acknowledge and agree that upon execution of a Site Designation Supplement with
respect to any site pursuant to this Agreement and the BTS Sublease, except with
respect to those provisions of this Agreement which survive the expiration or
termination hereof, the BTS Sublease, the applicable Site Designation Supplement
and related documents shall govern the respective rights and obligations of the
parties with respect to such BTS Site or TowerCo Existing Site.
Section 3.04. Time for Commencement and Completion.
Vendor and SBCW acknowledge that the time for Scheduled Commencement
Date and Completion of the BTS Site will be determined by the applicable
Implementation Plan and the Site Schedule. Vendor's unexcused failure to
Complete any BTS Site in accordance therewith shall subject Vendor to the
Liquidated Damages pursuant to Section 11.01.
Section 3.05. Relationship.
Vendor agrees to furnish its best skill and judgment in performing its
obligations hereunder, and to cooperate with SBCW in furthering SBCW's
interests. Except as expressly provided in Section 8.01, SBCW, Vendor and
TowerCo Parent, in the performance of this Agreement will be acting in their
individual capacities and not as employees, partners, joint venturers, agents or
associates of one another. In the performance of this Agreement, Vendor is, and
shall at all times during the term of this Agreement be, an independent
contractor. Nothing contained in this Agreement creates the relationship of a
joint venture, partnership, association or agency between the parties. No party
shall have any authority to bind or otherwise obligate the other. Persons
retained by either party as employees or agents shall not, solely by reason
thereof, be deemed to be employees or agents of the other party.
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Section 3.06. Project Personnel.
(a) Vendor shall, at its own cost and expense, employ only competent and able
personnel for the performance of the Services and all of Vendor's obligations
under this Agreement, including, without limitation, contractors and
subcontractors that are properly licensed and legally qualified to construct the
Towers and Improvements and complete the Work on each BTS Site and/or provide
the Collocation Services. Vendor shall make available to SBCW a list of its
principal contractors and subcontractors, and SBCW shall have the right to
request a particular contractor or subcontractor be removed from the list for
the Project so long as such request is based upon commercially reasonable
criteria. Vendor shall, at all times during the term of this Agreement, keep a
sufficient number of qualified personnel to the extent required to Complete the
Project pursuant to the Implementation Plan and Site Schedules, including
without limitation, a sufficient number of suitable experts in the areas of
engineering, design, construction, installation, management, performance
enhancement and other operational specialties applicable to the Project. Subject
to Section 3.06(d), Vendor shall have exclusive control of and direction over
the Persons engaged in the performance of Vendor's obligations under this
Agreement.
(b) If reasonably requested by SBCW, Vendor shall make available additional
suitable experts in the areas of engineering, design, construction,
installation, management, performance enhancement and other operational
specialties applicable to the Project, and SBCW shall pay any direct costs
associated with any such suitable experts that are in addition to those required
pursuant to Section 3.06(a).
(c) Vendor will be solely responsible for the actions and conduct of all its
employees, agents, consultants, advisors, contractors and subcontractors. Vendor
will ensure that anything related to its employees, agents, consultants,
advisors, contractors or subcontractors shall be in strict compliance with
Governmental Requirements.
(d) SBCW reserves the right to require Vendor to immediately remove and exclude
any Person or entity employed by or otherwise working for Vendor, its agents,
consultants, contractors, subcontractors or advisors, from any BTS Site or
TowerCo Existing Site, at SBCW's reasonable discretion, who (i) engages in any
misconduct, (ii) is incompetent or (iii) is negligent in the performance of its,
his or her duties. Vendor shall be responsible for any additional labor costs
arising in connection with any removal or exclusion requested pursuant to this
Section 3.06(d).
(e) Vendor shall assign key managers and personnel, including Contract Managers
as provided below, to manage, supervise and be responsible for the timely
performance of Vendor's obligations hereunder. Unless SBCW otherwise consents in
writing, as to each BTS Site, Vendor shall (i) allocate sufficient personnel to
devote time and attention to such BTS Site, and (ii) not remove any key manager
(including Contract Managers) from any such position or reassign any such key
manager, either within the Project or to another project, without a qualified
replacement. In addition, each party agrees to assign to the Project contract
managers (the "Contract Managers") to provide overall supervision and management
of the Project. Each party may change its Contract Managers at any time and from
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time to time. The parties further agree to cooperate with each other in
implementing the due diligence and construction process set forth in this
Agreement in order to Complete the Work on all BTS Site pursuant to the terms of
this Agreement and to use their commercially reasonable efforts to amicably
resolve any and all issues relating to performance by each party of its
respective rights and obligations hereunder. The foregoing is intended to set
forth a general approach to the day-to-day conduct of the Project, but is not
intended to qualify or limit the obligations of the parties hereunder or any
rights hereunder that any party may have in respect of a breach by the other
party of such obligations.
Section 3.07. Familiarity with Project and BTS Sites.
Vendor represents and warrants that Vendor is familiar with projects
similar to the Project, is or will become familiar with the Specifications
applicable to the Towers and Improvements, will visit and examine each BTS Site
and the surrounding locale, and knows or will know the working conditions in and
around each BTS Site.
Section 3.08. Quality Standard.
Vendor agrees to perform its obligations and furnish its Services
hereunder properly, diligently, and in good faith, in accordance with the
standards of its profession, and in accordance with all applicable Governmental
Requirements. Vendor shall implement quality control procedures, which shall be
sufficient to ensure compliance with the Specifications and shall otherwise
maintain quality standards for the Services at least equal to the normal quality
standards applied in the industry prior to the date of this Agreement.
Section 3.09. Books and Records of Vendor, Right of Inspection by SBCW.
Vendor shall keep such accounts as may be necessary for its proper
financial management of the Project under this Agreement. The system of
accounting employed by Vendor shall be such as is reasonably satisfactory to
SBCW. SBCW shall be afforded access to all of Vendor's records, books,
correspondence, instructions, drawings, plans, blueprints, specifications,
receipts, vouchers, memoranda and similar data relating to the Project and this
Agreement to the extent relating to SBCW's intended use, Vendor's compliance
with the terms hereof, Vendor's and each BTS Site's and TowerCo Existing Site's
compliance with Governmental Requirements, the structural integrity of the
Improvements, or if SBCW otherwise provides reasonable justification therefor,
except for privileged documents or where disclosure is prohibited by law. Such
books and records shall be open for inspection and copying upon reasonable
written notice by SBCW, at its cost, and its authorized representatives at
reasonable hours at Vendor's principal office and shall be retained by Vendor
for a period of three (3) years after the expiration of the BTS Sublease.
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Section 3.10. Scope of the Project.
(a) Subject to the terms and conditions of this Agreement, SBCW, for itself and
as agent for the SBCW Parties, hereby grants to Vendor for the Term the
exclusive right to develop new Towers which SBCW elects to have constructed in
the Territory; provided that the foregoing shall not apply with respect to Sites
subject to the existing contracts listed in Part A of Annex N annexed hereto
(the "Existing Contracts") and the Eastern Transportation Corridor Sites listed
in Part B of Annex N (the "ETC Sites"). Except as provided in Section 3.12 of
this Agreement, the exclusive rights provided to Vendor hereunder shall only
apply to SBCW and the SBCW Parties set forth on the signature pages to this
Agreement, and their respective successors and assigns (but, subject to the
provisions of Section 3.12 hereof, only if and for so long as such Persons and
such entity is an Affiliate of Cingular).
(b) Notwithstanding anything to the contrary contained herein and subject to
Article 13, the parties agree that during the Term, Vendor shall have the
exclusive right and obligation to perform all Services on the BTS Sites pursuant
to this Agreement other than Collocation Services and except as expressly
provided in this Agreement to the contrary, and shall have an affirmative
obligation to Complete the Work on any such BTS Sites in strict compliance with
the provisions of this Agreement; provided, however, that if at any time during
the Term, Vendor's right and obligation to perform Services on the BTS Sites is
suspended or terminates (i) in respect of any BTS Site pursuant to Section
13.01(b)(i), then SBCW shall have the right to engage any Person to perform any
and all Services on such BTS Site, or (ii) pursuant to Section 13.01(b)(ii),
then SBCW shall have the right to engage any Person to perform any and all
Services on any or all BTS Sites. SBCW reserves the right to construct and
install all of the Constructed Improvements and its Communications Equipment on
the BTS Sites; provided, however, that SBCW shall have the right to request that
Vendor construct and install one or more concrete equipment pads or raised
platforms capable of accommodating SBCW's or SBCW Party's buildings, huts or
equipment shelters.
(c) Notwithstanding anything to the contrary contained herein, SBCW reserves the
right, either directly or through a SBCW Party or any third party, to acquire
Sites and thereafter to develop and construct its own Towers pursuant to the
terms summarized on Schedule 3.10(c) hereof. Following Completion of such
Towers, such Towers shall be sold to Vendor (or to SpectraSite Wireless Towers,
Inc., an Affiliate of Vendor) for an amount calculated in accordance with the
schedule of costs agreed to by the parties and attached to Schedule 3.10(c).
Upon the sale of any such Tower to Vendor (or SpectraSite Wireless Towers,
Inc.), said Tower shall be deemed to be a BTS Site and SBCW or a SBCW Party
shall occupy the Leased Space subject to the terms of the BTS Sublease. In
acquiring, developing and constructing its own Towers as aforesaid, SBCW or the
applicable SBCW Party may retain one or more third party consultants and/or
contractors to perform the work associated therewith, but the retaining of such
entities shall not otherwise relieve SBCW from its obligations under this
Agreement. The obligation of SBCW to sell Towers that it has developed to Vendor
(or SpectraSite Wireless Towers, Inc.) shall not apply to (i) Sites controlled
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by SBCW or SBCW Parties with respect to which, as of the date of the Agreement
to Sublease, actual construction has commenced, defined as the issuance of
building permits for such Site, or (ii) the ETC Sites, unless SBCW obtains a
waiver of the right of first refusal to purchase the ETC Sites from Site
Management Solutions, Inc. ("SMS") or if SMS fails to exercise such right of
first refusal pursuant to the SMS Agreement or if such right of first refusal is
otherwise terminated or determined to be invalid or unenforceable.
(d) At any time on or before the "Final Closing Date" under the Agreement to
Sublease, SBCW may elect to have any Towers that are being developed by either
Vendor or by SBCW (either itself or through a third party pursuant to Section
3.10(c)) become "Substitute Sites" pursuant to the Agreement to Sublease rather
than become BTS Sites under this Agreement and the BTS Sublease. For such Tower
to so become a Substitute Site, such Tower must satisfy all of the conditions
and criteria set forth in the Agreement to Sublease for Substitute Sites and, in
addition:
(i) if such Tower is being developed by Vendor, no later than thirty (30) days
before the anticipated date of Completion of such Tower, Vendor shall
provide to SBCW Vendor's reasonable good faith estimate of (A) Vendor's
actual, direct out-of-pocket costs of acquiring the applicable Site and
developing and constructing such Tower (including all Site acquisition
costs and other "hard" and "soft" costs), plus (B) Vendor's personnel and
related costs reasonably allocated to such Tower based on the amount spent
by such personnel on such Site acquisition and development and
construction, and, if SBCW shall elect to have such Tower become a
Substitute Site (which election shall be made in writing no later than
fifteen (15) days after receipt of Vendor's calculation), upon Completion
of such Tower, SBCW shall acquire such Tower from Vendor for an amount
equal to the actual amounts under (A) plus (B) above (calculated as of ----
the Completion Date), plus (C) a profit margin equal to Vendor's customary
profit margin for arms-length ---- agreements to develop Towers for third
parties. Following the acquisition of such Tower by SBCW, such Tower shall
be leased to Vendor's Affiliate, Southern Towers, Inc. pursuant to the
Agreement to Sublease and shall be governed by the Agreement to Sublease
and the SBCW Sublease rather than by this Agreement; and
(ii) if such Tower is being developed by SBCW (either itself or through a third
party pursuant to Section 3.10(c)), and if SBCW shall elect to have such
Tower become a Substitute Site (which election shall be made in writing no
later than fifteen (15) days before the anticipated date of Completion of
such Tower), then upon Completion, such Tower shall be leased to Vendor's
Affiliate, Southern Towers, Inc. pursuant to the Agreement to Sublease and
shall be governed by the Agreement to Sublease and the SBCW Sublease rather
than by this Agreement.
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Transaction and transfer costs associated with a Tower becoming a
"Substitute Site" as set forth in this Section 3.10(d) shall be governed by
paragraph 7 of Schedule 3.10(c).
Section 3.11. Available BTS Sites in Event of Condemnation.
If prior to the execution of a Site Designation Supplement for a BTS
Site, any condemnation occurs as to any BTS Site so as to render such BTS Site
unsuitable for the Permitted Use, Vendor shall, at the request of SBCW, perform
all its obligations hereunder in respect of a replacement site for such
condemned BTS Site satisfactory to SBCW consistent with the requirements of
Article 5, as if such replacement site were a BTS Site hereunder, including
without limitation, Acquisition of such replacement site, the construction of a
Tower and Improvements on any selected BTS Site pursuant to and in accordance
with Article 6 and the further subleasing of a portion of such BTS Site to SBCW
or its Affiliate pursuant to the BTS Sublease and a Site Designation Supplement.
The monthly amounts payable in respect of such replacement BTS Site shall be
equal to the amount of the BTS Rent that would have been payable in respect of
the replaced condemned BTS Site. The Site Schedule, Scheduled Commencement Date
and Completion Date for any such replacement site shall be determined by Vendor
and SBCW consistently with the construction schedules applicable to BTS Sites in
general. This Agreement shall survive the Term indefinitely to the extent
necessary to give effect to this Section 3.11.
Section 3.12. Additional Provisions Regarding SBCW Parties.
(a) This Agreement shall be binding on (i) SBCW and those other Affiliates of
Cingular listed in Schedule 3.12(a) hereof and (ii) all Affiliates of Cingular
which now or hereafter directly hold FCC licenses to engage in the PCS or
cellular communications business in the FCC markets listed in Schedule 3.12(b)
annexed hereto (the "BTS Markets"), whether or not such Affiliates are
signatories to this Agreement (the "Designated SBCW Parties"); provided that in
the case of any SBCW Party other than SBCW, (i) such SBCW Party shall be bound
by this Agreement only so long as such SBCW Party is an Affiliate of Cingular
and (ii) the cessation of such SBCW Party's Affiliation with Cingular shall, for
purposes of this Section 3.12, be deemed a transfer of such SBCW Party's PCS or
cellular business in an FCC market, as further provided in Section 3.12(b); and
provided further, that if SBCW ceases to be an Affiliate of Cingular, it shall
no longer be bound by this Agreement with respect to FCC markets (if any) as to
which it holds FCC licenses to engage in the PCS or cellular communications
business (and such cessation of Affiliation shall, for purposes of this Section
3.12, be deemed a transfer of SBCW's PCS or cellular business in such markets,
as further provided in Section 3.12(b)) but shall (x) remain obligated (or cause
a Person reasonably satisfactory to Vendor to be obligated) under Section
3.12(b) and (c) to take the actions referred to in clauses (i), (ii) and (iii)
of said Sections with respect to any of SBCW Parties then bound by the Agreement
which cease to be Affiliates of Cingular as a result of the transaction in
question and (y) shall retain (or cause a Person reasonably satisfactory to
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Vendor to assume) its obligations hereunder as agent and attorney-in-fact and
its other obligations which do not relate specifically to the construction or
other provision of individual towers (but only where, after the application of
clause (x) of this sentence, multiple Persons which are Affiliates of each other
remain bound by this Agreement with respect to one or more FCC markets). Any
Person which hereafter becomes a Designated SBCW Party (i.e., an Affiliate of
Cingular which directly holds an FCC license to engage in the PCS or cellular
communications business in a BTS Market) (a "Future Designated SBCW Party")
shall, upon becoming such an Affiliate, automatically be deemed an SBCW Party
hereunder, and, upon request, SBCW shall promptly cause such Person to execute
and deliver to Vendor a counterpart of this Agreement. The Designated SBCW
Parties shall be bound by this Agreement only with respect to the BTS Markets.
Schedule 3.12(b) sets forth the Designated SBCW Parties in existence on the date
hereof and the BTS Markets in which they conduct business;
(b) If any SBCW Party consummates a "swap" transaction pursuant to which it
transfers its PCS or cellular communications business (the "Original Market
Business") in any FCC market or, in the case of a Designated SBCW Party, any BTS
Market (the "Original Market") in exchange for another Person's PCS or cellular
communications business (the "Swap Market Business") in another FCC market (the
"Swap Market"), then SBCW shall, at its option, either (i) cause the transferee
of the Original Market Business to assume all of the transferor's obligations
under this Agreement with respect to the Original Market (in which event the
transferor shall have no obligations under this Agreement with respect to the
Swap Market), (ii) cause the transferor to become bound by this Agreement with
respect to the Swap Market (in which event the transferee shall have no
obligations under this Agreement with respect to the Original Market) or (iii)
cause one or more SBCW Parties (which may be Future Designated SBCW Parties) to
become bound by this Agreement with respect to one or more FCC markets which are
not then subject to this Agreement and which, in the aggregate, afford
build-to-suit opportunities comparable to, or more favorable to Vendor than,
those afforded by the Original Market (in which event the transferor and
transferee shall have no obligations hereunder with respect to the Original
Market or the Swap Market). For purposes of this Section 3.12, the following
shall constitute a transfer of an SBCW Party's PCS or cellular communications
business in an FCC market: (i) a transfer of such SBCW Party's license to
conduct business within such FCC market; or (ii) a transfer of the stock or
other equity interests in such SBCW Party (or in any entity which owns a direct
or indirect interest in such SBCW Party), or a merger, consolidation or other
transaction, as a result of which (in each case) such SBCW Party ceases to be an
Affiliate of Cingular;
(c) If an SBCW Party transfers (any such transfer, a "Market Transfer") to a
Person which is not an Affiliate of Cingular (a "Third Party") its PCS or
cellular communications business in one or more FCC markets or, in the case of a
Designated SBCW Party, one or more BTS Markets (in each case, the "Transferred
Markets") and such transfer is not a swap transaction of the nature referred to
in Section 3.12(b) or a transfer required to be effected for regulatory
purposes, then SBCW shall, at SBCW's option, either (i) cause the transferee to
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assume all of the transferor's obligations under this Agreement with respect to
one or more of such Transferred Markets, and/or (ii) cause one or more SBCW
Parties (which may be Future SBCW Designated Parties) to become bound by this
Agreement with respect to one or more FCC markets which are not then subject to
this Agreement, such that the Transferred Markets referred to in clause (i) and
the markets referred to in clause (ii), taken together, afford build-to-suit
opportunities comparable to, or more favorable to Vendor than, those afforded by
all of the Transferred Markets included in such Market Transfer, taken as a
whole; provided that the foregoing requirement shall not apply until SBCW
Parties have consummated transfers after the date hereof to one or more Third
Parties (not including swap transactions of the nature described in Section
3.12(b) but including transfers required to be effected for regulatory purposes)
with respect to BTS Markets with aggregate POPs at the time of such transfer(s)
in excess of 17 1/2% of Existing POPs (the "Threshold"); and provided further
that in determining whether the Threshold has been reached SBCW shall be given
credit for the POPs of any FCC market which SBCW or an SBCW Party has elected to
make subject to this Agreement after the date hereof and which was not so made
subject to this Agreement pursuant to Section 3.12(b) or the foregoing
provisions of this Section 3.12(c) (provided that SBCW shall be given credit for
a portion of the POPs (such portion to be agreed to by SBCW and Vendor in the
exercise of their reasonable discretion) of any FCC market made subject to this
Agreement pursuant to Section 3.12(b) or the foregoing provisions of this
Section 3.12(c) to the extent such market provides superior build-to-suit
opportunities to those afforded by the Original Market (in the case of clause
(iii) of the first sentence of Section 3.12(b)) or the Transferred Markets (in
the case of this Section 3.12(c));
(d) Notwithstanding anything to the contrary contained in the foregoing, in the
case of a transfer of an SBCW Party's PCS or cellular communications business in
an FCC market or, in the case of a Designated SBCW Party, a BTS Market, whether
in a swap transaction or otherwise (in each case, the "Sold Market"), the
transferee shall be required to assume such SBCW Party's obligations under this
Agreement with respect to all sites in such Sold Market, if any, as to which
Vendor shall have commenced performing its services hereunder and the transferee
shall have the same rights vis-a-vis Vendor with respect to such sites as are
afforded the transferor under this Agreement (or, in the alternative, SBCW shall
reimburse Vendor for its costs incurred in performing such services). In the
event the assignee elects to assume such obligations, Vendor and such assignee
shall enter into an agreement that affords Vendor and such assignee relative
rights in respect of the applicable sites no less favorable to such assignee or
Vendor than those afforded SBCW or Vendor, as applicable, under this Agreement;
(e) SBCW shall, not less than fifteen (15) days prior to effecting any transfer
of an SBCW Party's PCS or cellular communications business in any FCC market (or
in the case of a Designated SBCW Party, in a BTS Market), give Vendor written
notice of such transfer. In addition, promptly after any Future Designated SBCW
Party becomes an Affiliate of Cingular, SBCW shall give notice of such event to
Vendor;
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(f) If, under the preceding provisions of this Section 3.12, any Person which is
not an Affiliate of Cingular becomes bound by this Agreement with respect to an
FCC market, then such Person and the applicable Affiliate of Vendor shall, at
the time such Person becomes so bound, enter into New Sublease Documents (as
defined in the BTS Sublease) with respect to such FCC market;
(g) SBCW represents and warrants that the SBCW Parties which are signatories to
this Agreement were, as of April 4, 2000, all of the subsidiaries of SBC
Communications Inc. which directly held FCC licenses to engage in the PCS or
cellular communications business in the Territory (except for businesses in
Indianapolis and New Orleans) and that since April 4, 2000 none of such
subsidiaries has sold or otherwise transferred any portion of such business
(except for businesses in Indianapolis and New Orleans). SBCW further represents
and warrants that the SBCW Parties which are signatories to this Agreement are
direct or indirect subsidiaries of SBCW or (to the extent set forth in Schedule
3.12(b) annexed hereto) SBC Communications Inc.
Article IV
Vendor's Undertakings.
Section 4.01. Vendor's Undertakings.
(a) Commencing on the Effective Date of this Agreement, Vendor agrees to furnish
the Services for and on behalf of SBCW and to perform such Services in an
expeditious manner consistent with the interests of SBCW. In the performance of
the Services, Vendor shall furnish its best skill and judgment (i) in accordance
with the standards established by the industry, (ii) consistent with good
development and construction practices and efficient business practices, (iii)
utilizing skill and judgment available throughout its organization in the
performance of this Agreement to provide its professional knowledge, ideas,
experience and abilities relating to the design, scheduling, development and
construction of the Towers and Improvements, and (iv) in a competent,
professional and efficient manner.
(b) Vendor shall keep SBCW fully informed of all Governmental Requirements that
affect, in any material respect, the Services to be performed hereunder and
shall promptly notify in writing SBCW of any part of the Project that does not
comply with any Governmental Requirements to the extent Vendor is or becomes
aware of such noncompliance.
(c) In addition to the Services, as described in this Agreement, Vendor shall
have such other duties and responsibilities reasonably and customarily required
for developments similar to the development of each BTS Site as may be required
or necessary from time to time during the design, development, construction,
equipping and Completion of each BTS Site, which other duties and
responsibilities shall be deemed to be within the scope of this Agreement;
provided, however, that SBCW shall not incur any costs or expenses for or in
connection with any such services for BTS Sites.
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Section 4.02. Governmental Requirements and Permits.
(a) Vendor shall obtain, or cause to be obtained, the consent or approval of all
Governmental Authorities and all Permits necessary for the development of each
BTS Site. Vendor shall advise SBCW in writing of any potential issues or
problems, including without limitation any delays in connection with obtaining
any approvals from Governmental Authority.
(b) Vendor shall coordinate and manage all professional and technical services
required in connection with the preparation and filing of applications for and
obtaining all Permits Vendor shall be responsible for diligently preparing and
filing all applications for, and pursuing and obtaining, the Permits.
(c) Permits will be filed by Vendor in its own name, except where prohibited by
applicable laws, and SBCW shall assist Vendor in securing all such Permits.
(d) Vendor shall use its best efforts to obtain any Permits necessary to
commence construction of the Tower and Improvements on or before the Scheduled
Commencement Date with respect to each BTS Site, and shall, unless otherwise set
forth in the Site Schedule, prepare and file an application for the required
Permit or Permits with the applicable Governmental Authority not later than
thirty (30) days after the date of the applicable Notice to Proceed. Vendor's
efforts relating to obtaining any Permits shall include, without limitation, the
approval of any necessary rezoning of such BTS Site, grant of any variance,
vacating of any right-of-way, issuance of any order or other action that may be
necessary, or obtain any other land use approval necessary, to commence
construction of the Tower and Improvements on such BTS Site. If, despite such
efforts, any Permits required to be obtained before commencement of construction
have not been obtained or could not have been obtained as of the Scheduled
Commencement Date, then Vendor shall continue, if SBCW agrees, to exercise its
best efforts, for a period of at least one (1) year, to obtain any such Permits
as promptly as possible, and, subject to Section 4.02(e), the Scheduled
Commencement Date will be adjusted to reflect all additional time which will be
required for the performance of any of the duties or obligations of Vendor under
this Agreement as a result of the delay in obtaining the Permits. The failure to
obtain any such Permit shall not in and of itself constitute a breach of
Vendor's obligations hereunder. However, the failure of Vendor to perform any of
its obligations set forth in this Section 4.02 shall constitute a breach of
Vendor's obligations under this Agreement, which, if not cured as contemplated
by Section 13.01(a)(i), would constitute an event of default hereunder.
(e) If Vendor has not obtained any Permit required for the Construction of the
Tower and Improvements on any BTS Site, or for the Permitted Use thereof or any
other required Permit by the applicable Scheduled Commencement Date set forth in
the applicable Site Schedule, but in no event later than one hundred twenty
(120) days after SBCW issues a Notice to Proceed for any BTS Site, then, at any
time thereafter, SBCW will have the right, at SBCW's sole option, to (i) assume
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responsibility for obtaining such Permit by written notice to Vendor, and Vendor
shall reimburse SBCW for any costs, fees, or expenses (including reasonable
attorneys' fees and expenses) incurred in pursuing and obtaining such Permit;
provided, however, that any reimbursement in excess of $20,000 shall be subject
to Vendor's pre-approval; provided, further, however, that if Vendor fails to
approve any reimbursement in excess of $20,000, then SBCW shall have the right
to pursue obtaining such Permits and shall be liable for any costs, fees and
expenses incurred in connection therewith in excess of $20,000, and provided,
further, however, that any election under this clause (i) shall be without
prejudice to SBCW's right to elect either one of the options set forth in clause
(ii) or (iii) below with respect to such BTS Site; (ii) reject the BTS Site at
no cost or expense to SBCW, whereupon SBCW shall have the right to engage any
Person to perform Services in respect to such BTS Site or an alternative site
within the applicable SARF; or (iii) reject the BTS Site and cause Vendor to
propose additional potential cell sites as alternatives, in accordance with
Section 5.01. If SBCW makes the election in clause (ii) above and shall, either
itself or through a third party, acquire a site and develop a tower within the
applicable SARF, then the provisions of Section 3.10(c) hereof shall govern the
acquisition of such site, the development of such tower and the sale of such
tower to Vendor.
(f) Vendor shall comply with all Governmental Requirements in performing its
obligations under this Agreement, the BTS Sublease and each Site Designation
Supplement. Vendor shall indemnify, and hold harmless, each SBCW Indemnitee from
and against any Claims (including without limitation any fine, penalty or
damage) arising out of Vendor's failure to comply with any Governmental
Requirements including, without limitation, zoning laws and FAA and FCC
regulations.
(g) If SBCW determines that Vendor's proposed Tower height would cause an
extension of time to obtain any Permit beyond the period set forth in the
applicable Site Schedule, Vendor shall, at SBCW's written request, revise the
Due Diligence Package to provide a Tower height which, while meeting SBCW's
requirements, will, in SBCW's judgment, be permitted in a timely fashion
consistent with the applicable Site Schedule; provided, however, that in
revising the Due Diligence Package, Vendor shall have the right to pursue (i)
Permits for a Tower which meets SBCW's requirements but which can be
subsequently modified to increase the height of the Tower in order to meet
Vendor's requirements and/or (ii) simultaneous Permits for the construction of
(1) a temporary structure which satisfies SBCW's requirements, if all Permits
for such temporary structure can be obtained within the time provided in the
applicable Site Schedule, and (2) a permanent Tower with greater height which
meets both SBCW's and Vendors requirements. In the event that SBCW installs its
Communications Equipment on any temporary tower structure prior to Vendor's
completion of obtaining permits and constructing a higher permanent Tower,
following completion of such higher permanent Tower, SBCW's Communications
Equipment shall be relocated to the permanent Tower at Vendor's sole cost and
expense, and under the direction of SBCW
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(h) Notwithstanding anything to the contrary contained herein, Vendor may, but
shall not be required to file or pursue any appeal or other similar action to be
filed with a court of competent jurisdiction ("Permit Appeal Action") in
connection with obtaining Permits; provided, however, that Vendor shall not
pursue a Permit Appeal Action that in any way involves SBCW or uses SBCW's name
or represents any interest of SBCW absent prior consultation with SBCW and
express written consent from SBCW to take such Permit Appeal Action. Vendor
shall notify SBCW if Vendor desires to initiate Permit Appeal Action with
respect to any BTS Site and, following the giving of such notice, SBCW shall
promptly respond in writing whether it has any objection to Vendor initiating
such Permit Appeal Action. If SBCW shall so object, then SBCW shall no longer be
obligated under Section 3.10 to exclusively engage Vendor to perform the
Services on such BTS Site and SBCW shall be free to engage any Person to
construct Tower, Improvements and Constructed Improvements on such BTS Site and
perform any Services in connection therewith.
Article V
Pre-Construction Phase
Section 5.01. Proposal of BTS Sites; Development Plan.
(a) From time to time during the Term in connection with SBCW's need for a new
Tower, SBCW shall issue a search area request form ("SARF") to Vendor pursuant
to Attachment A to Annex C attached hereto. Promptly after receipt of each SARF,
but in no event later than thirty (30) days after the giving of such notice,
Vendor shall perform searching services in the search area designated in such
SARF by using diligent, good faith efforts, consistent with the standards set
forth in Section 4.01, to identify at least three (3) potential BTS Site
locations, unless otherwise agreed, within each radio frequency search area
identified in such SARF and to prepare a preliminary Site Schedule and a Site
Data Package collecting the information set forth in Annex G-1 attached hereto,
to the extent required by SBCW prior to issuance of the Notice to Proceed for
presenting such potential sites to SBCW for final selection. No site shall be
required to be proposed unless Vendor reasonably believes that such site meets
the requirements for proposed BTS Sites set forth in Annex L to this Agreement
(the "Minimum Standards for BTS Sites") of this Agreement for BTS Sites in all
material respects and that it will be possible, with the exercise of diligent
efforts, to obtain the Permits necessary to construct the Tower and
Improvements. Within fifteen (15) days after receipt of Vendor's proposal, SBCW
shall in writing either accept or, if SBCW reasonably believes that such sites
do not satisfy the standards set forth in Annex M or would not accommodate the
configuration of equipment designated in Annex K (such conditions, the "SBC
Minimum Requirements"), reject one or more of the proposed BTS Sites and, in the
event SBCW accepts such proposed site, such site shall become a BTS Site. If
none of the sites proposed by Vendor for any search area are accepted by SBCW,
Vendor shall have an additional thirty (30) days in which to propose additional
potential BTS Sites. SBCW shall accept one or more of the additional proposed
BTS Sites or, at SBCW's option, in the event that SBCW reasonably believes that
such sites do not satisfy the SBC Minimum Requirements, reject the proposed BTS
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Sites in writing within fifteen (15) days after receipt of Vendor's proposal. If
SBCW shall accept more than one proposed BTS Site or additional proposed BTS
Site, then Vendor may, in its reasonable judgment, select one such Site and
pursue that Site rather than the others accepted by SBCW. If none of the
proposed BTS Sites are accepted by SBCW or if Vendor is unable, notwithstanding
diligent efforts, to propose a site that meets the requirements of this Section
5.01 within the time period set forth herein, Vendor shall have no further
obligation to search for potential sites in response to such SARF, and SBCW
shall be entitled to pursue such site without reference to this Agreement.
(b) Vendor will provide SBCW with methodology for each search ring and keep logs
demonstrating reasons for rejecting potential BTS Sites, including why viable
alternative locations were rejected. SBCW has the right to inspect these logs
upon reasonable notice.
(c) SBCW's right to select any proposed BTS Site as a BTS Site shall not relieve
or release Vendor from performing any of its obligations hereunder in respect of
such BTS Site or otherwise affect any of Vendor's obligations hereunder.
Together with SBCW's written notice of the acceptance of a proposed site as a
BTS Site, SBCW shall deliver to Vendor a Notice to Proceed with respect such BTS
Site in the form of Annex D attached hereto, to be completed and returned to
SBCW in accordance with Section 5.02. Acceptance of the proposed BTS Site does
not constitute final acceptance of the construction which shall be governed by
Section 6.12 hereof.
(d) Not later than ten (10) days after receipt of the Notice to Proceed as to
any BTS Site, Vendor shall prepare for the Development of each BTS Site and
shall submit to SBCW for its approval, which approval shall not be unreasonably
withheld or delayed, an Implementation Plan and a final Site Schedule with
respect to such BTS Site, which shall include, among other things, design
services, preparation of a development plan, and coordination of construction
activities.
Section 5.02. Due Diligence
During the pre-construction phase, Vendor shall, on its own or through
one or more qualified consultants approved by SBCW: (i) compile and review all
reasonably available existing data with respect to each BTS Site from an owner
or a ground lessor of such BTS Site and any and all Governmental Authorities
having jurisdiction thereof, and any other Persons who may have relevant
information necessary to develop each BTS Site; (ii) for TowerCo Existing Sites,
within ten (10) days following acceptance by SBCW pursuant to Section 3.02(a),
Vendor shall provide Compliance Data to SBCW, (iii) on new construction of BTS
Sites, Vendor shall within ten (10) days from initial acceptance by SBCW
pursuant to Section 5.01, provide the 1A survey and proposed heights and power/
emissions data to SBCW for requisite filing with the FAA and within three (3)
months provide environmental compliance data which will be required before FCC
Form 854 can be filed to register the structure; (iv) Vendor shall cause to be
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performed any and all analyses, examinations, investigations, tests and
inspections of each BTS Site, including, but not limited to, environmental
studies, surveys, geotechnical studies, soil borings and the like and cause to
be accurately completed and returned to SBCW with respect to each BTS Site, the
Due Diligence Package in the form attached hereto as Annex G-2 containing all
necessary or reasonably available information; (v) make, or cause to be made,
inquiries of all Governmental Authorities and Persons who will furnish electric
power, telephone service or any other utility to each BTS Site as to any matters
which may affect or be necessary to the Development of each BTS Site; and (vi)
determine all Governmental Requirements necessary for the Development of each
BTS Site, including, but not limited to, the Tower and Improvements, zoning laws
or regulations. Vendor shall perform or supervise the activities described in
items (i) through (vi) above, and, shall deliver to SBCW copies of all written
reports, memoranda or material correspondence prepared by or for Vendor with
respect to the foregoing. SBCW and Vendor shall each have the right to reject
any BTS Site that in the respective party's reasonable belief fails to comply
with the SBC Minimum Requirements or the Minimum Standards for BTS Sites, as
applicable, or other requirements of this Agreement based on the results of the
information contained in Site Data Package, Compliance Data, Due Diligence
Package or other due diligence performed by Vendor or SBCW, as applicable.
If, notwithstanding Vendor's diligent efforts, Vendor is unable to
acquire or negotiate a Ground Lease for any site which meets the SBC Minimum
Requirements and which is otherwise reasonably acceptable to Vendor by the date
on which the construction phase is to commence pursuant to the Site Schedule,
the Vendor shall not be required to acquire or enter a Ground Lease for or to
construct or complete such site. In such event, SBCW shall have the right to
engage any Person to perform Services in respect to such BTS Site or an
alternative site within the applicable SARF; provided, however, that if SBCW
shall exercise such right and shall, either itself or through a third party,
acquire a Site and develop a tower within the applicable SARF, then the
provisions of Section 3.10(c) hereof shall govern the acquisition of such Site,
the development of such tower and the sale of such tower to Vendor.
Section 5.03. Utilities.
Vendor shall negotiate with the utility companies servicing each BTS
Site a plan for the provision of services to such BTS Site including without
limitation electricity, and other shared utilities required on each BTS Site.
Vendor shall make applications for such utility companies to furnish services to
such BTS Site as may be adequate for the Permitted Use of the BTS Site by SBCW
and all Space Subtenants. Vendor shall cause such utility companies to provide
connections to such BTS Site. In the case of telephone company connection
facilities, all obligations shall remain with Vendor to the effect connections
required for the Permitted Use of the BTS Site under the BTS Sublease, with
exception that Vendor shall utilize SBCW as its agent to work with the local
telephone company on the development of the servicing plan. SBCW shall reimburse
Vendor for the cost of procuring and installing the connections referred to
herein, such reimbursement to be allocated on an equitable basis with other
lessees of space on the Tower.
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Article VI
Construction Phase
Section 6.01. General.
(a) The parties shall hold progress meetings, and Vendor shall submit progress
reports to SBCW, in accordance with the Implementation Plan or otherwise on a
weekly, bi-weekly or monthly basis as may be agreed between parties. Progress
reports will show for each BTS Site, at a minimum, and not by way of limitation,
all dates and schedules referred to in the Implementation Plan and the Site
Schedule, any anticipated delays, other relevant information, and the
corresponding activity period. Included in the information provided by Vendor to
SBCW shall be an estimate of when the equipment shelter can be placed and when
the equipment can be activated. In addition, SBCW may request and Vendor shall
facilitate progress meetings with Vendor's key managers and subcontractors,
including the establishment of oversight committees to monitor specific work in
progress on BTS Sites at times and locations agreed upon by SBCW and Vendor in
writing no less than seven (7) days prior to such meetings. Progress reports
shall be for planning purposes and monitoring compliance with this Agreement.
(b) Should any information or approval be required from SBCW as Work progresses,
Vendor shall request such information or approval in writing. Said requests
shall be submitted sufficiently in advance of the date upon which the
information or approval is needed, but in no event less than five (5) days in
advance of such date, to permit SBCW to act without affecting the progress or
sequence of the Work. Such request shall provide a reasonable time for a
response by SBCW.
(c) Vendor shall, on a periodic basis (but not less frequently than weekly),
review the progress of the construction, evaluate the percentage of completion
of each BTS Site as indicated in the Implementation Plan and the applicable Site
Schedule. The construction schedule report shall be distributed not less than
weekly during the construction phase of the Project indicating the actual
progress compared to the scheduled progress of the Work in accordance with the
applicable Site Schedule. The reports shall compare the actual construction
dates to scheduled construction dates for each BTS Site.
(d) Following completion of the Tower and Improvements, Vendor has five (5)
Business Days in which to provide Completion Data to SBCW. Upon acceptance of
the Completion Data, SBCW shall, within five (5) Business days of receipt of the
Completion Data, either issue approval of this Completion Data or provide a
written explanation of the deficiency if SBCW does not accept the Completion
Data.
Section 6.02. Performance of the Work
Vendor shall have the responsibility and obligation to perform the Work
in accordance with Annex A. Vendor shall provide a management team or a
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representative on each BTS Site to provide supervision and administration of the
Completion of the Work for each such BTS Site. Vendor shall establish and
implement coordination and communication procedures between Vendor and SBCW.
Vendor shall establish and implement procedures for reviewing and processing
requests for clarifications and interpretations of the Specifications,
including, without limitation, drawings and technical specifications, schedule
adjustments, and such other procedures as may be required to Complete the
Project. Vendor shall receive operation and maintenance manuals, warranties and
guarantees for materials and equipment used in the Completion of the Project and
shall deliver this information to SBCW upon Completion of the Project.
Section 6.03. Implementation Plan.
The Implementation Plan will set forth in detail the various tasks for
construction and completion of the construction of the Tower and the
Improvements for each BTS Site. Any material changes in the Implementation Plan
shall be subject to written approval by SBCW, not to be unreasonably withheld or
delayed. Vendor shall commence the Work pursuant to the Implementation Plan,
using such means and methods of construction as will maintain the progress of
the Work substantially in accordance with the Site Schedule for each BTS Site
and shall cause Completion of each BTS Site in accordance with the requirements
of the Site Schedule for such BTS Site.
Section 6.04. Site Schedule.
(a) To enable the Towers and the Improvements to be planned, scheduled and
Completed in an orderly and expeditious manner, Vendor acknowledges and agrees
that each Site Schedule shall be consistent with the Specifications and each
stage of the Implementation Plan. As shall be provided in each Site Schedule for
a BTS Site, following finalization of construction plans and receipt of required
regulatory approvals, Vendor has eight (8) weeks to construct the BTS Site.
Vendor and SBCW may agree to extend this date for a BTS Site in the applicable
Site Schedule or otherwise in a writing between the parties.
(b) Upon the occurrence of an event of Force Majeure, the Site Schedule for any
affected BTS Site shall be adjusted to reflect all additional time which will be
required for the performance of any of the duties or obligations of Vendor under
this Agreement as a result of such event, which adjustment shall be subject to
the prior written approval of SBCW, not to be unreasonably withheld or delayed.
(c) Except as set forth in Section 6.04(b) as to an individual BTS Site, no Site
Schedule for any BTS Site shall change, and Vendor will have no right to cause
any such change, without prior written reasonable approval by SBCW. Within five
(5) Business Days after the receipt of any request from Vendor for a change to
any Site Schedule, SBCW shall notify Vendor in writing of its approval or
disapproval of such proposed change. Failure of SBCW to respond within said five
(5) Business Day period shall constitute and be deemed an acceptance of such
requested change unless the change is, or results in an extension of the
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Scheduled Completion Date by more than thirty (30) days with respect to any BTS
Site, in which case SBCW must approve such change in writing before it becomes
effective, such approval not to be unreasonably withheld.
(d) Vendor acknowledges and agrees that it has an affirmative obligation and
responsibility promptly to notify SBCW of any circumstance which affects or may
affect any Site Schedule in any material respect and the extent to which such
Site Schedule may be affected as a result of such circumstance.
Section 6.05. Quality Review.
Vendor shall establish and implement a program to monitor the quality
of the construction, as set forth in the Implementation Plan. The purpose of the
program shall be to assist in guarding against defects and deficiency in the
Work. At any time and from time to time, SBCW may, in its discretion, and
without need to demonstrate cause, conduct an independent program to monitor the
quality of the construction and Vendor's compliance with its obligations
hereunder.
Section 6.06. Compliance with Requirements, Permits, Bonds and Insurance
during Construction
Vendor shall comply with all Environmental, Health and Safety
Requirements as they relate to the construction of the Towers and the
Improvements or the provision of Collocation Services in connection with the
Project. Vendor shall, at its own cost and expense, procure and maintain all
licenses and permits required by local, state or federal regulatory agencies and
authorities with respect to the construction, and shall comply with all local,
state and federal laws, ordinances, rules and regulations applicable to this
Agreement. SBCW has the right to audit Vendor's compliance with Environmental,
Health and Safety Requirements upon reasonable notice. Vendor shall indemnify
and hold harmless each of the SBCW Indemnitees from and against any fine,
penalty or damage arising out of the failure by Vendor, its Affiliates or any of
their respective employees, agents, contractors, subcontractors, advisors or
consultants to comply with any such laws, ordinances, rules or regulations
including, without limitation, zoning laws and FAA regulations unless such
failure arises from SBCW's willful or negligent conduct. Vendor shall obtain, or
cause to be obtained, all required bonds and insurance, including without
limitation the insurance required under Article 10, necessary or advisable for
the commencement of construction and Completion of the Work with respect to each
BTS Site or the provision of Collocation Services.
Section 6.07. Work Permits.
Vendor shall be the applicant for any and all necessary Permits for the
applicable Work. Vendor shall coordinate and manage all professional and
technical services required in connection with the preparation and filing of
applications for and obtaining all Permits. Vendor shall be responsible for
ensuring that all applications for the Permits are diligently prepared and
filed, and pursued and obtained.
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Section 6.08. Construction by Vendor.
(a) Vendor, at Vendor's sole cost and expense, shall cause the Towers and the
Improvements to be constructed and installed diligently and in a timely fashion,
with workmanship and materials in accordance with standards generally prevailing
in the industry and in any event, in accordance with the Specifications, the
Implementation Plan for each BTS Site and all applicable laws. SBCW will have
the right to approve or reject the quality of all materials, equipment and
systems to be used in the Completion of the Towers and Improvements that are
different from or not in conformity with the Specifications. Vendor shall
supervise the work and activities of the contractors, subcontractors, engineers
and other Persons engaged in the design, development, construction and
installation of the Towers and Improvements. Vendor shall obtain, or cause to be
obtained, all warranties. Vendor shall cause the construction of a Tower and
other Improvements on each BTS Site in accordance with this Agreement, including
the applicable Site Schedule and on or before the Site Completion Date.
(b) If SBCW reasonably requests changes to the Specifications, Vendor shall
promptly make such changes to the Specifications and SBCW shall adjust the
Implementation Plan, the Site Schedule for any affected Site, as may be
necessary or required, in SBCW's reasonable judgment provided that (i) the
change in the Specifications would not have a material adverse effect on the
Permitted Use under the BTS Sublease or on the BTS Site generally; and (ii) SBCW
pays any reasonable costs incurred by Vendor and directly attributable to
implementation of such changes.
Section 6.09. Site Data.
In performing Services hereunder, Vendor shall compile data concerning
each BTS Site and furnish such data to SBCW, all in accordance with the
procedures set forth in Annex C and Annex G, including all Compliance Data and
Completion Data.
Section 6.10. Warranty.
Vendor does hereby warrant and guarantee that the Tower and
Improvements on each BTS Site and all workmanship and materials incorporated
therein will be constructed in accordance with the Specifications and will be
free from defects in workmanship and materials: (i) as to the Tower (to the
extent constructed by Vendor as opposed to SBCW), for a period commencing on the
Completion Date for such BTS Site and ending upon the expiration of the term of
the Site Designation Supplement, after giving effect to any and all extensions
thereof, and (ii) as to the Improvements and Constructed Improvements (to the
extent made by Vendor as opposed to SBCW), for a period of one (1) year
commencing on the Completion Date (the "Warranty Period"). In addition, at
SBCW's request, Vendor shall assign to SBCW a nonexclusive right to enforce all
warranties respecting materials used by Vendor in Completing each BTS Site and
shall secure any and all consents from the suppliers of such materials to make
such assignment effective or enforce any such warranties on behalf of SBCW. If
any defect or deviation should exist, develop, be discovered or appear within
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the Warranty Period, Vendor, at its sole cost and expense, immediately upon
demand, shall fully and completely repair, correct and eliminate such defect or
deviation. The foregoing warranties and guarantees are cumulative of and in
addition to, and not restrictive of or in lieu of, any and all other warranties
and guarantees provided for or required by the Specifications, any other
provision of this Agreement or applicable laws, and shall survive the expiration
or termination of this Agreement.
Section 6.11. Access and Inspection.
(a) The construction shall be performed in such a manner as will permit SBCW to
inspect each BTS Site. SBCW may, at its election, conduct or have conducted such
inspections as it deems necessary at each BTS Site. If SBCW notifies Vendor of
any observed defects or nonconformities with the Specifications, Vendor shall
promptly correct any defect or nonconformity in such time and manner as will
permit Completion of each BTS Site in accordance with the Site Schedule for such
BTS Site. The failure of SBCW to inspect any BTS Site, however, will not in any
way limit, waive, or otherwise affect the rights of SBCW with respect to any of
Vendor's warranties or obligations under this Agreement.
(b) SBCW will have access to any BTS Site during all working hours, and will
have the right to observe the Work performed; provided, however, that SBCW shall
not delay, hinder or interfere with the performance of the Work. SBCW's
inspection of any Work will not relieve Vendor of any of its obligations to
perform the Work in accordance with this Agreement, including without limitation
the Specifications, except to the extent a specific deviation from the
Specifications at any BTS Site is or has been accepted in writing by SBCW. Work
found not to be in accordance with the Specifications shall be replaced or
re-performed by Vendor, except to the extent a specific deviation from the
Specifications is or has been accepted in writing by SBCW. SBCW will have the
right to reject materials and workmanship which are defective or not in
conformance with the Specifications. Rejected Work at any BTS Site must be
promptly removed from such BTS Site. Failure on the part of SBCW to reject
defective or nonconforming Work will not be construed to imply an acceptance of
such Work; provided, however, to the extent a specific deviation from the
Specifications is or has been accepted in writing by SBCW, such deviation shall
not be deemed to be defective or nonconforming Work.
(c) Should SBCW consider it necessary or advisable at any time before Completion
to examine Work already completed therein, Vendor shall, on request of SBCW,
promptly furnish all necessary facilities, labor, and material for that purpose.
If such Work is found to be defective in any material respect, Vendor shall pay
all expenses of such examination. If, however, such Work is not found to be
defective in any material respect, SBCW shall pay all expenses of such
examination and restoration of the Work. The Site Schedule as to affected BTS
Site shall be equitably adjusted.
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Section 6.12. Completion.
(a) Promptly following the Completion of the Work at any BTS Site in accordance
with the requirements of the Specifications and the requirements of this
Agreement, including without limitation the construction of the Tower and the
Improvements on such BTS Site and the performance of the final cleanup thereon,
Vendor shall issue a Completion Certificate with respect to such BTS Site. Not
later than twenty (20) days after receipt of such Completion Certificate, SBCW
shall provide Vendor with written notice stating (i) SBCW agrees that the Work
as to such BTS Site is Completed, in which case SBCW shall countersign such
Completion Certificate within such 20-day period, or (ii) SBCW rejects such BTS
Site as not Completed, provided SBCW includes an explanation in reasonable
detail of the respects in which such BTS Site is not Completed and provides a
punch-list in the form of Annex E annexed hereto (the "Punch List") indicating
the particulars of any alleged deviation from the Specifications or other
requirements of Vendor hereunder. Vendor shall promptly, but not later than
within thirty (30) days of the date of the Punch List, and at its own cost and
expense, correct any such non-compliance or deviation. Subject to the provisions
of Section 6.12(d), SBCW shall commence payment to Vendor of the BTS Rent
applicable to such BTS Site pursuant to the BTS Sublease: (i) if SBCW fails to
either countersign the Completion Certificate or issue the Punch List within
twenty (20) days after SBCW's receipt of the Completion Certificate, upon
expiration of such 20-day period; (ii) if SBCW countersigns the Completion
Certificate within such 20-day period, when SBCW countersigns the Completion
Certificate; (iii) if SBCW issues the Punch List within such 20-day period and
the site is Substantially Complete, when SBCW issues the Punch List; or (iv) if
SBCW issues the Punch List within such 20-day period and the site is not
Substantially Complete, when the site is Substantially Complete.
(b) In addition to any right SBCW may have under Section 6.11, SBCW will have
the right to (i) inspect any BTS Site at any time after SBCW receives the
notification under Section 6.12(a) and prior to any date on which the Completion
Certificate is executed and (ii) notify Vendor in writing if such inspection by
SBCW reveals that Completion has not occurred with respect to any BTS Site.
Promptly after receipt of any such notification, Vendor shall promptly cause any
unperformed Work to be performed.
(c) Upon issuance of the Completion Certificate with respect to a BTS Site and
SBCW's countersigning thereof, such BTS Site shall constitute a completed and
accepted BTS Site (a "Completed BTS Site"). SBCW shall have the right to
commence the installation of its Communications Equipment at a BTS Site from and
after Substantial Completion thereof or, with Vendor's prior written consent
(not to be unreasonably withheld or delayed), prior to such Substantial
Completion.
(d) Notwithstanding Sections 6.12(a) and (c), if at any time before the
execution of the Completion Certificate or the Site Designation Supplement with
respect to any BTS Site, SBCW commences the installation of its Communications
Equipment or Improvements on such BTS Site, the parties shall deliver a Site
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Designation Supplement with respect to the applicable BTS Site and SBCW shall be
obligated to pay Vendor (or SpectraSite Wireless Towers, Inc., an Affiliate of
Vendor) the applicable BTS Rent with respect to such BTS Site; provided,
however, that in either case SBCW shall have the right to defer, accrue, and
withhold payment of, the applicable BTS Rent until such BTS Site is Completed.
Not later than thirty (30) days after any such BTS Site is Complete, SBCW shall
pay such accrued BTS Rent, without interest.
Article VII
Guaranty Of Obligations
Section 7.01. TowerCo Parent's Guaranty.
(a) TowerCo Parent hereby unconditionally guarantees to SBCW the full and timely
performance and observance of all of the terms, provisions, covenants and
obligations of Vendor under this Agreement (the "Obligations"). TowerCo Parent
agrees that if Vendor defaults at any time during the term of this Agreement in
the performance of any of the Obligations, TowerCo Parent shall faithfully
perform and fulfill all Obligations and shall pay to SBCW all attorneys' fees,
court costs, and other expenses, costs and disbursements incurred by SBCW on
account of any default by Vendor and on account of the enforcement of this
guaranty.
(b) If Vendor defaults under this Agreement and SBCW elects to enforce the
provisions of this Section 7.01, SBCW shall promptly give TowerCo Parent written
notice thereof, which notice shall constitute an exercise of SBCW's rights
against TowerCo Parent pursuant to this Section 7.01. Following the receipt of
such notice by TowerCo Parent, TowerCo Parent shall have the same period of time
as is afforded to Vendor under this Agreement to cure such default but no such
cure period shall diminish the obligations of TowerCo Parent under this Section
7.01.
(c) This guaranty obligation of TowerCo Parent shall be enforceable by SBCW in
an action against TowerCo Parent without the necessity of any suit, action, or
proceedings by SBCW of any kind or nature whatsoever against Vendor, without the
necessity of any notice to TowerCo Parent of Vendor's default or breach under
this Agreement and without the necessity of any other notice or demand to
TowerCo Parent to which TowerCo Parent or Vendor might otherwise be entitled,
all of which notices TowerCo Parent hereby expressly waives. TowerCo Parent
hereby agrees that the validity of this guaranty and the obligations of TowerCo
Parent hereunder shall not be terminated, affected, diminished, or impaired by
reason of the assertion or the failure to assert by SBCW against Vendor any of
the rights or remedies reserved to SBCW pursuant to the provisions of this
Agreement or any other remedy or right which SBCW may have at law or in equity
or otherwise.
(d) TowerCo Parent covenants and agrees that this guaranty is an absolute,
unconditional, irrevocable and continuing guaranty. The liability of TowerCo
Parent hereunder shall not be affected, modified, or diminished by reason of any
assignment, renewal, modification or extension of this Agreement or any
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modification or waiver of or change in any of the covenants and terms of this
Agreement by agreement of SBCW and Vendor, or by any unilateral action of either
SBCW or Vendor, or by an extension of time that may be granted by SBCW to Vendor
or any indulgence of any kind granted to Vendor, or any dealings or transactions
occurring between SBCW and Vendor, including, without limitation, any adjustment
compromise, settlement, accord and satisfaction, or release, or any bankruptcy,
insolvency, reorganization, arrangement, assignment for the benefit of
creditors, receivership, or trusteeship affecting Vendor. TowerCo Parent does
hereby expressly waive any suretyship defense it may have by virtue of any
statute, law, or ordinance of any state or other governmental authority.
(e) All of SBCW's rights and remedies under this guaranty are intended to be
distinct, separate, and cumulative and no such right and remedy herein is
intended to be the exclusion of or a waiver of any other.
(f) TowerCo Parent hereby waives presentment demand for performance, notice of
nonperformance, protest, notice of protest, notice of dishonor, and notice of
acceptance. TowerCo Parent further waive any right to require that an action be
brought against Vendor or any other person or to require that resort be had by
SBCW to any security held by SBCW.
Article VIII
Vendor's Additional Obligations As To Bts Sites
Section 8.01. Hazardous Waste and Contamination Investigation.
(a) Prior to the Ground Lease Effective Date for any BTS Site, Vendor shall
cause the Environmental Assessment on such BTS Site to be performed. Vendor
shall provide SBCW with copies of any and all such Environmental Assessments.
(b) Within five (5) Business Days after discovery of any Environmental
Conditions on any BTS Site not disclosed by, or in excess of the conditions
disclosed by, the Environmental Assessment, Vendor shall advise SBCW in writing
of such condition and its effect upon the Site Schedule. SBCW reserves the right
to reject any proposed BTS Site if, in SBCW's sole discretion, it determines the
environmental condition creates an unreasonable risk or liability. All costs and
expenses incurred by Vendor arising out of or by reason of the discovery of any
such condition on the BTS Site (including, without limitation, costs and
expenses paid or incurred to rectify such condition) shall be borne by Vendor.
The applicable Site Schedule shall be adjusted to reflect all additional time
which will be required for the performance of any of the duties or obligations
of Vendor under this Agreement as a result of any such condition.
Section 8.02. Geotechnical Subsurface and Soil Investigation.
(a) Vendor shall obtain, perform and analyze all reasonably appropriate
geotechnical data, soil and subsurface tests and other soil engineering tests
and reports necessary to the design, engineering, permitting, and construction
of the Tower and the Improvements (except that the provisions of this Section
8.04 shall not apply to the Environmental Assessment).
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(b) If Vendor shall have timely obtained all reasonably appropriate tests, but,
nonetheless, concealed and unknown conditions that affect the performance of the
Work are encountered below ground or in an existing structure other than the
Work, then (i) Vendor shall bear all costs and expenses arising out of or by
reason of the existence of any such condition on the BTS Site (except to the
extent that (x) Vendor notifies SBCW that its good faith estimate of such costs
and expenses exceeds $100,000 and Vendor is unwilling to bear any such costs and
expenses in excess of such amount, in which event SBCW will have the option,
exercisable in its sole discretion, either to (A) agree to pay the amount of any
such reasonably incurred costs and expenses in excess of such amount or (B)
terminate this Agreement as to such BTS Site, in which event SBCW shall no
longer be obligated under Section 3.09 to engage Vendor to perform Services on
such BTS Site, and shall be free to engage any other Person to perform such
Services), and (ii) the applicable Site Schedule shall be adjusted to reflect
all additional time which will be required for the performance of any of the
duties or obligations of Vendor under this Agreement as to such BTS Site as a
result of any such condition, subject to Vendor's receipt of the prior
reasonable approval of SBCW.
Section 8.03. Additional Environmental Requirements
Prior to commencement of construction in respect of any BTS Site and as
part of the Compliance Data provided to SBCW, Vendor shall perform an analysis
to determine whether (i) the proposed site will be located in an officially
designated wilderness area or preserve; (ii) the facility may affect federally
listed, threatened or endangered species or designated critical habitats; (iii)
the facility may affect districts, site buildings, structures, objects, or other
cultural resources listed, or eligible for listing, in the National Register of
Historic Places; (iv) the facility may affect Indian religious sites; (v) the
potential site is located within a 100-year floodplain; (vi) the construction of
the facility will involve a significant change in surface features (e.g.,
wetland fill, deforestation, or water diversion); (vii) the structure will be
equipped with high intensity white lights and be located in or near a
residential neighborhood; including any future modifications to the rules as
directed by the FCC. Vendor shall deliver the results of each such analysis to
SBCW upon completion of such analysis, together with a written certification to
the results thereof based on the consulting reports received by Vendor,
including Vendor's certification that there is no condition of the type
described in clauses (i); (ii); (iii); (iv); (v); (vi); or (vii). This data will
also include letters and/or other documentation from the governmental agencies
with responsibility for these matters, including but not limited to the State
Historical Preservation Officer, U.S. Fish and Wildlife, and the U.S. Army Corps
of Engineers. If it is found that any condition listed in this Section 8.03 is
present at any BTS Site, an Environmental Assessment must be prepared by the
Vendor and provided to SBCW. SBCW will be responsible for filing the
Environmental Assessment, upon approval of the data contained therein, with the
FCC. If any of conditions listed herein are present, no construction may be
commenced on a BTS Site until the required FCC applications have been granted
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and notice of such grant is provided to Vendor by SBCW's authorized
representative, and the applicable Site Schedule shall be adjusted accordingly.
All costs and expenses incurred by Vendor in connection with or relating to
Vendor's compliance with the requirements of this Section 8.03 shall be borne by
Vendor. If, notwithstanding anything to the contrary contained herein, Vendor
discovers that any of the conditions described in clauses (i)-(vii) of this
Section 8.03 exist and any of these conditions shall have a material adverse
effect on the construction, operation or value of such Site, Vendor shall not be
obligated to construct or complete such Site.
Section 8.04. FAA/FCC Compliance.
Vendor hereby expressly agrees to comply with any and all rules,
policies, regulations and interpretations of SBCW relating to or in connection
with SBCW's compliance with the applicable FAA and FCC regulations, as such
rules, policies, regulations and interpretations are described in Schedule 8.04.
Article IX
Agreement To Sublease
Section 9.01. Execution of the Site Designation Supplement.
Upon the Commencement Event (as hereinafter defined) with respect to a
site, SBCW shall sublease the Leased Space of such BTS Site or TowerCo Existing
Site from the applicable Sublessor under the BTS Sublease pursuant to the BTS
Sublease and SBCW and the applicable Sublessor Entity under the BTS Sublease
shall execute a Site Designation Supplement for such BTS Site or TowerCo
Existing Site, thereby supplementing the BTS Sublease so as to cause such BTS
Site or TowerCo Existing Site to be covered thereby. SBCW shall designate the
specific location of the Leased Space on each BTS Site or TowerCo Existing Site
to be initially occupied by SBCW or its Affiliate and the Site Designation
Supplement shall reflect such location. As used herein, the term "Commencement
Event" shall mean: (i) in the case of a BTS Site, the earlier to occur of (A)
(i) if SBCW fails to either countersign the Completion Certificate or issue the
Punch List within twenty (20) days after SBCW's receipt of the Completion
Certificate, upon expiration of such 20-day period; (ii) if SBCW countersigns
the Completion Certificate within such 20-day period, when SBCW countersigns the
Completion Certificate; (iii) if SBCW issues the Punch List within such 20-day
period and the site is Substantially Complete, when SBCW issues the Punch List;
or (iv) if SBCW issues the Punch List within such 20-day period and the site is
not Substantially Complete, when the site is Substantially Complete and (B) the
date on which SBCW begins installing its Communications Equipment or
Improvements on such BTS Site; (ii) in the case of a TowerCo Existing Site, the
earlier of (A) the date agreed to by SBCW and Vendor and (B) the date on which
SBCW begins installing its Communications Equipment or Improvements on such
TowerCo Existing Site; or (iii) in the case of a site on which a Tower is
developed by SBCW or an SBCW Party pursuant to Section 3.10(c), the date on
which Completion of such Tower on such site (or the interest of SBCW or an SBCW
Party therein) has occurred and such Tower has been transferred to Vendor or
SpectraSite Wireless Towers, Inc.
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Section 9.02. Effect of Sublease and Site Designation Supplement.
The parties acknowledge and agree that upon the Completion of a BTS
Site or the final acceptance of an TowerCo Existing Site by SBCW, in addition to
any obligations of Vendor hereunder that survive, the respective duties and
responsibilities of the parties pertaining to the sublease of such BTS Site or
TowerCo Existing Site by Vendor (or by Southern Towers, Inc., an Affiliate of
Vendor) to SBCW shall be set forth and governed by the BTS Sublease and a Site
Designation Supplement for such BTS Site or TowerCo Existing Site.
Article X
Insurance
Section 10.01. Vendor's Insurance Requirements.
Throughout the term of this Agreement, Vendor shall carry and maintain
in force the following insurance:
(a) Commercial General Liability Insurance (including protective liability
coverage on operations of independent contractors engaged in construction,
blanket contractual liability coverage, products liability coverage, and
explosion, collapse and underground hazards coverage) for the benefit of Vendor,
against claims for personal injury, bodily injury and property damage, with a
limit of not less than $1,000,000 in the event of personal injury or bodily
injury to any number of persons or of damage to property arising out of any one
occurrence, and not less than $2,000,000 in the aggregate applicable to this
Project. Such insurance (which may be furnished under a primary policy or an
"umbrella" policy or policies with a limit of not less than $5,000,000) shall
also include coverage against liability for bodily injury or property damage
arising out of use by or on behalf of Vendor of any owned, non-owned or hired
automotive equipment for a limit not less than that specified above. Such
insurance shall include a cross-liability/severability of interest provision and
shall otherwise comply with the requirements applicable to such insurance.
(b) Worker's compensation and related insurance covering all employees of Vendor
employed in, on or about the Project in order to provide statutory benefits as
required by the applicable laws and otherwise in compliance with the
requirements applicable to such insurance, including employer's liability
insurance with limits of not less than $1,000,000 each accident/$1,000,000 each
employee by decease/1,000,000 policy limits and otherwise in compliance with the
requirements applicable to such insurance
(c) Comprehensive automobile liability insurance with limits of not less than
$1,000,000 per occurrence and in the aggregate for bodily injury, including
death and property damage and otherwise in compliance with the requirements
applicable to such insurance.
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(d) Vendor's all risk insurance policy with limits of not less than full
replacement cost of each Tower and the Improvements of each BTS Site and all
TowerCo Existing Sites on which SBCW or its Affiliates are a tenant. So long as
such self insurance is reasonable in light of the financial condition of Vendor
form time to time, SBCW agrees that Vendor may, at Vendor's option, self insure
with respect to all or a portion of the risks required to be insured against by
Vendor under this Section 10.01(d).
Section 10.02. Evidence of Insurance.
Promptly following SBCW's reasonable requests made from time to time,
Vendor shall furnish SBCW with appropriate certificates evidencing the insurance
required to be maintained by Vendor hereunder. If Vendor for any reason fails to
obtain and/or maintain in force any of the insurance required under Section
10.01, then Vendor shall, and Vendor does hereby agree to, indemnify each SBCW
Indemnitee against, and hold, save, and defend each SBCW Indemnitee harmless
from, any and all claims, demands, actions, causes of action, suits,
liabilities, damages, losses, costs and expenses of any kind or nature
whatsoever (including, without limitation, reasonable attorneys' fees and court
costs incurred in enforcing this indemnity and otherwise) which such SBCW
Indemnitee may suffer or incur, or which may be asserted against such SBCW
Indemnitee, whether meritorious or not, against which such SBCW Indemnitee would
or should have been insured under any required insurance which Vendor does not
for any reason obtain or maintain in force.
Section 10.03. Waiver of Subrogation.
Each insurance policy maintained by Vendor with respect to the Project
shall contain a waiver of subrogation clause, or shall name both SBCW and
against Vendor as insured parties thereunder, so that no insurer shall have any
claim over or against SBCW, by way of subrogation or otherwise, with respect to
any claims which are insured under any such policy, except for workers
compensation insurance.
Article XI
Liability; Indemnity
Section 11.01. Liquidated Damages.
(a) Except as expressly provided in this Agreement, if, as a result of an
Excusable Delay, Vendor delays in performing any of its obligations pursuant to
any Site Schedule, then SBCW shall adjust any Site Schedule pursuant to Section
6.04(b) so as to allow Vendor to perform the obligations which Vendor could not
perform due to such Excusable Delay. If Vendor delays in performing any of its
obligations pursuant to any Site Schedule for any reason other than an Excusable
Delay, then SBCW will have the option, exercisable in its sole discretion, to
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allow Vendor to perform the obligations which Vendor could not perform due to
such delay to a later time; provided, however, that no such adjustment shall be
effective unless evidenced by a writing executed by SBCW.
(b) If Vendor fails to meet its obligation to Substantially Complete any BTS
Site in accordance with the applicable Site Schedule, in addition to
constituting a breach by Vendor, SBCW will have the right to liquidated damages
in respect of each BTS Site that has not been Substantially Completed in an
amount equal to $7,500 per month (prorated for partial months), for each month
or partial month that such failure continues (the "Liquidated Damages"), not to
exceed $15,000 for any single BTS Site. If Vendor owes Liquidated Damages in
respect of any BTS Site, such Liquidated Damages shall be payable by Vendor in
cash, within thirty (30) days from the date of the written notice thereof. If
after sixty (60) days the BTS Site is still not Substantially Complete, SBCW
shall no longer be obligated to engage Vendor to perform the Services on such
BTS Site and SBCW shall be free to engage any Person to complete the Tower.
Improvements and Constructed Improvements on such BTS Site.
(c) The payment of the Liquidated Damages shall not relieve Vendor from its
obligations to construct and install the Towers and Improvements, and perform
its other obligations hereunder in accordance with the respective Site
Schedules. The parties hereto acknowledge that the amount of the Liquidated
Damages payable by Vendor to SBCW under this Section 11.01 constitute liquidated
damages and not penalties, that the injuries to SBCW caused by Vendor's delays
described above are difficult or impossible to estimate accurately, and that the
sums payable herein are reasonable estimates of the probable losses associated
with such injuries. The parties further acknowledge that SBCW may not assert
other damages separate from and in addition to the Liquidated Damages for losses
related to delay.
Section 11.02. Indemnity of SBCW.
(a) Vendor shall, and Vendor does hereby agree to, indemnify and hold harmless
each SBCW Indemnitee from and against any loss, damage, including without
limitation any direct or indirect, special, incidental or consequential damages,
liability, cost, expense, action or claim, including reasonable attorneys' fees
and amounts paid in settlement ("Claims"), by reason of or arising out of: (i)
personal injury, death, and damage to tangible property resulting from (A) the
intentional or negligent acts or omissions of Vendor's directors, officers,
employees, agents, consultants, contractors or subcontractors in connection with
the Completion of each BTS Site and performance of this Agreement, or (B) any
design or manufacturing defect in any Tower, the Improvements or any part
thereof, whether manufactured by Vendor hereunder or otherwise or any defects in
construction or installation of any Tower, Improvements or Constructed
Improvements; (ii) Vendor's breach of its obligations under this Agreement
including without limitation in respect of any Services; (iii) the termination
or removal of any employee or subcontractor of Vendor pursuant to Section
3.06(d); (iv) Vendor's breach of any representation or warranty in this
Agreement, including without limitation its warranty pursuant to Section 6.10;
or (v) failure of Vendor to comply with any obligation under this Agreement as
to Governmental Requirements.
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(b) SBCW shall, and SBCW does hereby agree to, indemnify and hold harmless
Vendor, Vendor's Affiliates, and the respective directors, officers, employees,
agents, contractors, subcontractors, advisors and consultants of Vendor and
Vendor's Affiliates (each, a "Vendor Indemnitee") from and against any Claim, by
reason of or arising out of personal injury, death and damage to tangible
property resulting from the intentional or negligent acts or omissions of SBCW,
but only to the extent (i) such injury, death or damage is caused by SBCW in
connection with (x) SBCW's installation of any Constructed Improvements or any
of SBCW Communications Equipment, (y) inspections pursuant to Section 6.11 or
(z) the provisions of Section 6.12(d) relating to SBCW's operation of its
Communications Equipment prior to the execution of the Completion Certificate
and (ii) Vendor is not responsible therefor under the terms of this Agreement.
Section 11.03. Relationship to Insurance.
In no event shall the indemnification provisions of Section 11.02 above
diminish, affect impede or impair, in any manner whatsoever, the benefits to
which any SBCW Indemnitee may be entitled under any insurance policy required by
this Agreement or otherwise with respect to the Project or under the terms of
any waiver of any subrogation contained therein.
Section 11.04. No Third-Party Beneficiaries.
None of the duties and obligations of Vendor under this Agreement shall
in any way or in any manner be deemed to create any liability of Vendor to, or
any rights in, any person or entity other than the SBCW Indemnitees and the
Vendor Indemnitees.
Article XII
Additional Representations And Warranties
Section 12.01. SBCW's Representations and Warranties.
SBCW represents and warrants to Vendor that: (i) SBCW is a corporation,
duly organized, validly existing and in good standing under the laws of the
State of Delaware; and (ii) SBCW has the full and complete right, power and
authority to enter into this Agreement and perform its respective duties and
obligations under this Agreement in accordance with the terms and conditions of
this Agreement.
Section 12.02. Vendor's Representations and Warranties.
(a) Vendor represents and warrants that Vendor is a corporation, duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has the full and complete right, power and authority to enter into this
Agreement and perform Vendor's duties and obligations under this Agreement in
accordance with the terms and conditions of this Agreement.
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(b) Vendor represents and warrants to SBCW that at all times during the term of
this Agreement, Vendor shall have sufficient funds available to Complete the
Project in accordance with this Agreement, including, without limitation, the
Implementation Plan and Site Schedules.
Section 12.03. TowerCo Parent's Representations and Warranties.
TowerCo Parent represents and warrants that: TowerCo Parent is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Delaware; and (ii) TowerCo Parent has the full and complete
right, power and authority to enter into this Agreement and perform its
respective duties and obligations under this Agreement in accordance with the
terms and conditions of this Agreement.
Article XIII
Default And Termination
Section 13.01. Default by Vendor.
(a) The following events shall constitute events of default by Vendor:
(i) If Vendor, in any material respect: violates or breaches, or fails
fully and completely to observe, keep, satisfy, perform or comply with any
terms, covenants, conditions, requirements, provisions, duties and
obligations under this Agreement other than the breaches described in
clauses (ii), (iii) (iv), (v) and (vi) below, and does not cure or remedy
such failure to perform within ten (10) days after receipt of written
notice from SBCW with respect thereto (which notice shall describe with
reasonable particularity such failure); provided, however, that if such
failure to perform shall necessitate longer to cure than such ten (10) day
period, and SBCW does not unreasonably object to an extension, then such
cure period shall be extended for such period of time as is reasonably
necessary to cure such failure to perform, provided, further, that Vendor
commences such cure within ten (10) days after receipt of written notice
from SBCW and thereafter proceeds diligently and in good faith to cure the
default within thirty (30) days from the date of receipt of notice of such
default;
(ii) If, (x) in any consecutive twelve (12) month period, SBCW becomes
entitled to the Liquidated Damages pursuant to Section 11.01(b) in excess
of $200,000 in respect of any BTS Sites or (y) SBCW becomes entitled to
Liquidated Damages pursuant to Section 11.01(b) in the amount of $15,000 in
respect of any BTS Site;
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(iii) If any representation or warranty made by Vendor in this
Agreement or the BTS Sublease was false or misleading in any material
respect on the date as of which made (or deemed made);
(iv) if Vendor breaches the provisions of Section 5.01(a);
(v) if Vendor breaches the provisions of Section 5.02 hereof;
(vi) If (A) a trustee or receiver is appointed to take possession or
control of all or substantially all of Vendor's assets, and such receiver
or trustee shall fail, within sixty (60) days of appointment to affirm or
assume this Agreement, to provide adequate assurance as to its ability to
perform all of the terms and conditions of this Agreement as a receiver or
trustee of Vendor, to cure all other events of default and to pay all
damages incurred by SBCW as a result of all events of default; (B) Vendor
shall commence any voluntary proceeding under present or future Federal
bankruptcy laws or under any other bankruptcy, insolvency or other laws
respecting debtor's rights; or (C) an "order for relief" or other judgment
or decree by any court of competent jurisdiction is entered against Vendor
in any involuntary proceeding against Vendor under present or future
Federal bankruptcy laws or under any other bankruptcy, insolvency or other
laws respecting debtor's rights, or any such involuntary proceeding shall
be commenced against Vendor and shall continue for a period of forty-five
(45) days after commencement without dismissal.
(b) Upon the occurrence of any event of default by Vendor under this Agreement,
SBCW may pursue any and all rights and remedies available under applicable law
and any one or more of the following rights and remedies, separately or
concurrently or in any combination, without further notice or demand whatsoever:
(i) upon the occurrence of any event of default with respect to a BTS
Site under Sections 13.01(a)(i), (ii)(y), (iii), (iv) or (v), SBCW may, at
its option, either (x) suspend its obligations with respect to such BTS
Site until such default is cured by Vendor or terminate its obligations to
engage Vendor to perform Services in respect of such BTS Site pursuant to
Section 3.10, by giving Vendor written notice thereof, and thereafter SBCW
shall have the right to engage any Person to perform Services in respect of
such BTS Site or an alternative site within the applicable SARF or (y)
terminate this Agreement as to such BTS Site by giving Vendor written
notice of termination and, thereafter SBCW shall have the right to engage
any Person to perform Services in respect to such BTS Site or an
alternative site within the applicable SARF; or
(ii) upon the occurrence of any event of default: (A) under Sections
13.01 (a)(ii)(x) or (vi), or (B) with respect to more than ten percent
(10%) or more of the proposed cell sites accepted by SBCW pursuant to
Section 5.01 during any twelve (12) consecutive month period under Sections
13.01(a)(i), (ii)(y), (iii), (iv) or (v), SBCW may, at its option, either:
(x) suspend its obligations until such default is cured by Vendor or
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terminate its obligations to engage Vendor to perform Services (including,
without limitation, with respect to any or all BTS Sites) pursuant to
Section 3.10, by giving Vendor written notice thereof, and thereafter SBCW
shall have the right to engage any Person to perform Services on any or all
BTS Sites or (y) terminate this Agreement in its entirety by giving Vendor
written notice of termination, and this Agreement shall be terminated as to
all BTS Sites at the time designated by SBCW in its notice of termination
to Vendor.
(c) SBCW will have the right to recover from Vendor all costs and expenses
incurred by SBCW in enforcing its rights and remedies hereunder, including
attorneys' fees and expenses paid or incurred by SBCW in connection with
enforcement measures, including the filing of any action at law or in equity or
the filing of any appeal of any decision or judgment with respect to any such
action. Notwithstanding anything to the contrary contained herein, no party
shall be liable to the others for indirect, incidental, special or consequential
damages, including but not limited to lost profits, however arising, even if a
party has been advised of the possibility of such damages.
(d) The termination of this Agreement by SBCW by reason of default by Vendor
shall not relieve Vendor of any of its duties and obligations theretofore
accrued under this Agreement prior to the effective date of such termination or
any representations or warranties theretofore made by Vendor.
Section 13.02. Obligations upon Termination.
Upon the termination of this Agreement, Vendor shall promptly:
(a) Upon request by SBCW, deliver to SBCW or such other person as SBCW may
designate all materials, supplies, equipment keys, contracts and documents, all
books of account and records maintained pursuant to this Agreement pertaining to
this Agreement and the Project.
(b) Upon SBCW's request, assign all existing contracts relating to the Project
to SBCW or such other person or entity as SBCW shall designate.
(c) Furnish all such information, take all such other action, and cooperate with
SBCW as SBCW shall reasonably require in order to effectuate an orderly and
systematic termination of Services and Vendor's other, duties, obligations and
activities hereunder.
Section 13.03. Termination of Agreement by Vendor in Respect of SBCW's
Bankruptcy.
Vendor may terminate this Agreement with respect to all BTS Sites for
cause in the event of occurrence of any of the following, after which Vendor
shall continue performing its duties and obligations hereunder accrued prior to
the effective date of such termination, but shall cease searching for or
attempting to acquire any additional cell sites:
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45
(a) A trustee or receiver is appointed to take possession or control of all or
substantially all of SBCW's assets, and such receiver or trustee shall fail,
within sixty (60) days of appointment, to affirm or assume this Agreement to
provide adequate assurance as to its ability to perform all of the terms and
conditions of this Agreement as a receiver or trustee of SBCW, to cure all other
events of default, and to pay all damages incurred by Vendor as a result of all
events of default.
(b) SBCW shall commence any voluntary proceeding under present or future Federal
bankruptcy laws or under any other bankruptcy, insolvency or other laws
respecting debtor's rights.
(c) An "order for relief" or other judgment or decree by any court of competent
jurisdiction is entered against SBCW in any involuntary proceeding against SBCW
under present or future Federal bankruptcy laws or under any other bankruptcy,
insolvency or other laws respecting debtor's rights, or any such involuntary
proceeding shall be commenced against SBCW and shall continue for a period of
forty-five (45) days after commencement without dismissal.
Article XIV
Force Majeure
Section 14.01. Force Majeure.
An event of "Force Majeure" shall mean the following events or
circumstances, to the extent that they delay the Completion of any BTS Site or
the performance of Vendor of its other duties and obligations under this
Agreement in respect of a BTS Site:
(a) Condemnation or other exercise of the power of eminent domain;
(b) Material changes in Governmental Requirements applicable to the construction
of the Towers and Improvements and Completion of the BTS Site effective after
the Effective Date, and the material orders of any Governmental Authority having
jurisdiction over a party;
(c) acts of God, including, without limitation, tornadoes, hurricanes,
floods, sinkholes, landslides, earthquakes, epidemics, quarantine and
pestilence;
(d) fire and other casualties, such as explosions and accidents;
(e) acts of a public enemy, acts of war, terrorism, effects of nuclear
radiation, blockades, insurrections, riots, civil disturbances or national or
international calamities; and
(f) strikes, walkouts, labor disputes or other third party events or conditions
to the extent there is no alternative available to comply with the obligations
of this Agreement; provided that Vendor is using commercially reasonable efforts
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to mitigate the effect of such event or condition, and, provided, further that
if such event or condition causes a delay in performance for a period greater
than forty five (45) days, then SBCW shall have the right to terminate this
Agreement as to the affected BTS Site.
Section 14.02. Effect of Force Majeure.
Vendor shall be entitled to an adjustment of the Site Schedule for
Force Majeure, but only for the number of days due to such causes and only to
the extent that such occurrences actually delay the Completion of such BTS Site.
The extent of any such adjustment is subject to the prior written approval of
SBCW, not to be unreasonably withheld or delayed. Under no circumstances shall a
Force Majeure event result in any extension of the Term.
Article XV
Fire or Other Casualty; Condemnation
Section 15.01. Obligation to Reconstruct; Use of Insurance Proceeds.
In the event of destruction or damage to any Tower or other
Improvements by fire or other casualty prior to Completion, Vendor shall
restore, reconstruct and repair any such destruction or damage by fire or other
casualty such that the Tower and the Improvements shall be in accordance with
the Specifications. Vendor shall use all available insurance proceeds for
restoration, reconstruction or repair, as required by this Agreement, and SBCW
shall consent to such use of insurance proceeds as required. The parties agree
to adjust the Site Schedule in order to extend the timetable for the Completion
of Work with respect to any destroyed or damaged Towers or Improvements.
Section 15.02. Condemnation of the Tower or Site; Application of Compensation.
In the event that a Tower or a BTS Site, or both, or any part thereof,
is damaged or taken by the exercise of the power of eminent domain at any time
prior to the Completion Date, Vendor shall apply the compensation awarded to and
received by it to restoration, reconstruction and repair of the Tower; provided,
however, that the Tower can (i) be restored, reconstructed or repaired, and (ii)
be commercially feasible for its Permitted Use as contemplated by the BTS
Sublease after the Taking (as defined in the BTS Sublease). The parties agree to
adjust the Site Schedule in order to extend the timetable for the Completion of
Work with respect to the taken Tower or BTS Site.
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Article XVI
Miscellaneous
Section 16.01. Notices
Whenever any notice, demand, request, advice or other communication is
required or permitted under this Agreement such notice, demand or request shall
be in writing and shall be sent by registered or certified mail, postage
prepaid, return receipt requested, or be sent by nationally recognized
commercial courier for next Business Day delivery so long as such commercial
courier requires the recipient to sign a receipt evidencing delivery, to the
addresses set forth below or to such other addresses as are specified by written
notice given in accordance herewith:
SBCW or SBCW Party: SBC Wireless, LLC
c/o SBC Wireless, Inc.
17330 Preston, #100A
Dallas, Texas 75252
Attention: General Counsel
Facsimile No.: (972) 733-2021
with a copy to:
SBC Communications Inc.
175 E. Houston
San Antonio, Texas 78205
Attention: Vice President and Assistant
General Counsel
Facsimile No.: (210) 351-3488
TowerCo Parent: SpectraSite Holdings, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: General Counsel
Facsimile No.: (919) 468-8522
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Mitchell L. Berg, Bruce A
Gutenplan
Facsimile No.: (212) 757-3990
Vendor: SpectraSite Communications, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: General Counsel
Facsimile No.: (919) 468-8522
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with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Mitchell L. Berg, Bruce A
Gutenplan
Telephone No.: (212) 373-3000
Facsimile No.: (212) 757-3990
All notices, demands, requests, advice or communications given by mailing shall
be deemed given on the date of receipt in the United States Mail; those given by
commercial courier shall be deemed given on the date such notice, demand,
request, advice or communication is delivered to the recipients address set
forth above or to such other address as is specified by written notice given in
accordance herewith. Any notice, demand, request, advice or communication not
received because of changed address or facsimile number of which no notice was
given or because of refusal to accept delivery shall be deemed received by the
party to whom addressed on the date of hand delivery, on the date of facsimile
transmittal, on the first calendar day after deposit with commercial courier, or
on the third calendar day following deposit in the United States Mail, as the
case may be.
Section 16.02. Assignment, Binding Effect.
The rights of the parties under this Agreement are personal to the
parties and, subject to the provisions of Section 3.12, may not be assigned
without the prior written consent of the other party, except that (i) Vendor may
retain third party contractors to perform its obligations hereunder and may
delegate any of its obligations hereunder to wholly-owned direct or indirect
subsidiaries of TowerCo Parent and assign any rights relating thereto to such
subsidiaries, provided that the retaining of such third parties or such
delegation or assignment shall not relieve or release Vendor from its
obligations hereunder and (ii) TowerCo Parent and Vendor may collaterally
assign, mortgage, pledge, hypothecate or otherwise collaterally transfer their
interest in this Agreement to any Permitted Subleasehold Collateral Assignee (as
defined in that certain Lease and Sublease, dated the date hereof, by and
between SBC Tower Holdings LLC and Southern Towers, Inc. (the "SBCW Sublease")),
and any such Permitted Subleasehold Collateral Assignee (as defined in the SBCW
Sublease) shall have the right to exercise remedies under any such mortgage,
pledge, hypothecation or other collateral transfer in the manner consistent with
the provisions of this and every other agreement between TowerCo Parent, Vendor
and SBCW made in connection with this transaction. This Agreement shall be
binding upon and enforceable against, and shall inure to the benefit of, the
parties hereto and their respective legal representatives, successors and
permitted assigns.
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Section 16.03. Authorized Representatives.
Any consent, approval, authorization or other action required or
permitted to be given or taken under this Agreement by SBCW or Vendor, as the
case may be, shall be given or taken by one or more of the Contract Managers or
other authorized representatives of each party. The written statements and
representations of the Contract Managers or any other authorized representative
of SBCW or Vendor shall be binding upon the party for whom the applicable
Contract Managers or such other person is an authorized representative, and the
other party hereto shall have no obligation or duty whatsoever to inquire into
the authority of any Contract Managers or such other authorized representative
to take any action which he proposes to take.
Section 16.04. Headings.
The use of headings, captions and numbers in this Agreement is solely
for the convenience of identifying and indexing the various provisions in this
Agreement and shall in no event be considered otherwise in construing or
interpreting any provision in this Agreement
Section 16.05. Annexes, Exhibits and Schedules.
Each and every annex, exhibit and schedule referred to or otherwise
mentioned in this Agreement is attached to this Agreement and is and shall be
construed to be made a part of this Agreement by such reference or other mention
at each point at which such reference or other mention occurs, in the same
manner and with the same effect as if each annex and exhibit were set forth in
full and at length every time it is referred to or otherwise mentioned.
Section 16.06. Publicity.
Neither party will advertise or publish any information related to this
Agreement without the prior written approval of the other party, except to the
extent previously disclosed by a party in accordance with the then existing
agreements of the parties.
Section 16.07. Severability.
If any term, covenant, condition or provision of this Agreement, or the
application thereof to any person or circumstance, shall be held to be invalid
or unenforceable, then in each such event the remainder of this Agreement or the
application of such term, covenant, condition or provision to any other person
or any other circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each term, covenant, condition
and provision hereof shall remain valid and enforceable to the fullest extent
permitted by law.
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Section 16.08. Waiver.
Failure by either party to complain of any action, non-action or
default of the other party shall not constitute a waiver of any aggrieved
party's rights hereunder. Waiver by either party of any right arising from any
default of the other party shall not constitute a waiver of any other right
arising from a subsequent default of the same obligation or for any other
default, past, present or future.
Section 16.09. Rights Cumulative.
All rights, remedies, powers and privileges conferred under this
Agreement on the parties shall be cumulative of and in addition to, but not
restrictive of or in lieu of, those conferred by law or equity.
Section 16.10. Time of Essence, Prompt Responses.
Time is of the essence of this Agreement. Anywhere a day certain is
stated for payment or for performance of any obligation, the day certain so
stated enters into and becomes a part of the consideration for this Agreement.
The parties recognize and agree that the time limits and time periods provided
herein are of the essence of this Agreement. The parties mutually agree to
exercise their mutual and separate good faith reasonable efforts to consider and
respond promptly and as expeditiously as is reasonably possible notwithstanding
any time period provided in this Agreement.
Section 16.11. Applicable Law.
This Agreement shall be governed by, construed under and interpreted
and enforced in accordance with the laws of the State of New York, without
regard to its conflicts of laws provisions.
Section 16.12. Waiver of Jury Trial.
To the maximum extent permitted by law, the parties hereby knowingly,
voluntarily and intentionally waive the right to a trial by jury in respect of
any litigation based hereon, arising out of, under or in connection with this
Agreement, or any course of conduct, course of dealing, statement (whether
verbal or written) or action of either party or any exercise by any party of
their respective rights under this Agreement (including, without limitation, any
action to terminate this Agreement, and any claim or defense asserting that this
Agreement was fraudulently induced or is otherwise void or voidable). This
waiver is a material inducement for the parties to enter into this Agreement.
Section 16.13. Entire Agreement.
This Agreement contains the entire agreement of SBCW and Vendor with
respect to the engagement of Vendor as the Vendor for the Project, and all
representations, warranties, inducements, promises or agreements, oral or
otherwise, between the parties not embodied in this Agreement shall be of no
force or effect.
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Section 16.14. Modifications.
This Agreement shall not be modified or amended in any respect except
by a written agreement executed by both parties.
Section 16.15. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and all of such counterparts together shall
constitute one and the same instrument.
Section 16.16. No Brokers.
(a) SBCW and Vendor hereby represent, agree and acknowledge that no real estate
broker or other person, except Goldman, Sachs & Co., which is an advisor to
SBCW's parent, SBC Communications Inc., is entitled to claim or to be paid a
commission as a result of the execution and delivery of this Agreement including
any of the Exhibits, or any proposed improvement use, disposition or lease of
any or all of the BTS Site.
(b) SBCW and Vendor warrant and represent to each other that there are no
broker's commissions or fees payable in connection with this Agreement by reason
of their respective dealings, negotiations or communications other than the
advisor's fee payable to Goldman, Sachs & Co. which shall be payable by SBC
Communications Inc. SBCW and Vendor shall, and do hereby indemnify, defend and
hold harmless each other from and against the Claims of any and all brokers,
agents and other intermediaries alleging a commission, fee or other payment to
be owing by reason of their respective dealings, negotiations or communications
in connection with this Agreement.
Section 16.17. Power of Attorney by SBCW Parties; Authorization.
(a) SBCW Parties and each of them, hereby irrevocably constitute and appoint
SBCW (the "Agent") as their agent to modify, amend or otherwise change this
Agreement or any of its terms or provisions, to take all actions and to execute
all documents necessary or desirable to effect the terms of this Agreement, and
to take all actions and to execute all documents which may be necessary or
desirable in connection therewith, to give and receive consents and all notices
hereunder, to negotiate and settle claims for identification, and to perform any
other act arising under or pertaining to the Agreement (including, without
limitation, issuing an SARF to Vendor and accepting or rejecting any BTS Site or
TowerCo Existing Site proposed by Vendor for use by such SBCW Party, the
issuance of a Completion Certificate with respect thereto or any other matter
pertaining to a BTS Site or the Project). SBCW Parties, and each of them, agree
that service of process upon the Agent in any action or proceeding arising under
or pertaining to the Agreement shall be deemed to be valid service of process
upon SBCW Parties.
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(b) Nothing contained herein shall be deemed to make the Agent liable to SBCW
Parties because of service in its capacity as agent. In performing any of its
duties hereunder, the Agent shall not incur any liability to SBCW Parties for
losses, damages, Liabilities or expenses, except for its willful default.
(c) It is expressly understood and agreed that this power of attorney and the
agency created hereby is coupled with an interest of the respective parties
hereto and shall be binding and enforceable on and against the respective
successors and assigns of SBCW Parties, and each of them, and this power of
attorney shall not be revoked or terminated and shall continue to be binding and
enforceable in the manner provided herein.
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S-1
SIGNATURE PAGE TO SPECTRASITE BUILD-TO-SUIT AGREEMENT
IN WITNESS WHEREOF, SBCW, TowerCo Parent and Vendor have caused their
respective duly authorized representatives to execute, seal and deliver this
Agreement all as of the day and year first above written.
SBCW:
SBC WIRELESS, LLC,
for itself and for certain of its Affiliates, some
of whose names appear below
By: /s/Kathy Rehmer
-----------------------------------
Kathy Rehmer, as attorney-in-fact
VENDOR:
SPECTRASITE COMMUNICATIONS, INC.
By:/s/Glen Spivak
-----------------------------------
Glen Spivak
Vice President
TOWERCO PARENT:
SPECTRASITE HOLDINGS, INC.
By: /s/Richard Byrne
-----------------------------------
Richard Byrne
Title: Executive Vice President
[Signatures continued on next page]
SIGNATURE PAGE TO SPECTRASITE BUILD-TO-SUIT AGREEMENT
59
S-2
SBCW PARTIES:
ABILENE SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
60
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AMARILLO SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
----------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
61
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AMCELL OF ATLANTIC CITY, LLC
By: AMERICAN CELLULAR NETWORK
LLC, its manager
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
62
S-5
AMERICAN CELLULAR NETWORK
COMPANY, LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
63
S-6
AMERITECH MOBILE COMMUNICATIONS,
LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
64
S-7
AMERITECH WIRELESS COMMUNICATIONS,
LLC
By: SBC WIRELESS, LLC, its manage
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
65
S-8
AURORA/ELGIN CELLULAR TELEPHONE,
LLC
By: AMERICAN CELLULAR NETWORK
LLC, its manager
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
66
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CELL SOUTH OF NEW JERSEY LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
67
S-10
CHAMPAIGN CELLTELCO
By: SOUTHWESTERN BELL MOBILE
SYSTEMS LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
68
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CINCINNATI SMSA LIMITED PARTNERSHIP
By: AMERITECH MOBILE
COMMUNICATIONS LLC, General
Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
69
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CORPUS CHRISTI SMSA LIMITED
PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, its General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
70
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C-SW CELLULAR PARTNERSHIP
By: SOUTHWESTERN BELL MOBILE
SYSTEMS, LLC, its General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
By: AMERICAN CELLULAR NETWORK LLC,
its General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
71
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DALLAS SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
72
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DECATUR CELLULAR TELEPHONE COMPANY LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
73
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DELAWARE VALLEY PCS COMMUNICATIONS, LLC
By: AMERICAN CELLULAR NETWORK
LLC, its manager
By: SBC WIRELESS, LLC,
its manager
By:/s/Kathy Rehmer
----------------------
Kathy Rehmer
as Attorney-in-Fact
by Power-of-Attorney
74
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DETROIT SMSA LIMITED PARTNERSHIP
By: AMERITECH MOBILE
COMMUNICATIONS LLC, Genera
Partner
By: SBC WIRELESS, LLC,
its manager
By:/s/Kathy Rehmer
--------------------
Kathy Rehmer
as Attorney-in-Fact
by Power-of-Attorney
75
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EASTERN MISSOURI CELLULAR LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC,
its manager
By:/s/Kathy Rehmer
---------------------
Kathy Rehmer
as Attorney-in-Fact
by Power-of-Attorney
76
S-19
GARY CELLULAR TELEPHONE COMPANY
By: SOUTHWESTERN BELL MOBILE
SYSTEMS LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
77
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HOUMA THIBADOUX CELLULAR PARTNERSHIP
By: SBC WIRELESS, LLC, its General
Partner
By:/s/Kathy Rehmer
-----------------------------------
Kathy Rehmer
as Attorney-in-Fact by Power-of-
Attorney
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S-21
JOLIET CELLULAR TELEPHONE, LLC
By: AMERICAN CELLULAR NETWORK
LLC, its manager
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
79
S-22
KANSAS CITY SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
80
S-23
LUBBOCK SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
81
S-24
MADISON SMSA LIMITED PARTNERSHIP
By: AMERICAN MOBILE
COMMUNICATIONS LLC, General
Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
82
S-25
MCALLEN-EDINBURG-MISSION SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
83
S-26
MIDLAND-ODESSA SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
84
S-27
MILWAUKEE SMSA LIMITED PARTNERSHIP
By: AMERITECH MOBILE
COMMUNICATIONS LLC, General
Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
85
S-28
MISSOURI RSA 8 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
86
S-29
MISSOURI RSA 9B1 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
87
S-30
MISSOURI RSA 11/12 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
88
S-31
NEHOLDINGS, LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------------
Kathy Rehmer
as Attorney-in-Fact by Power-of-
Attorney
89
S-32
OKLAHOMA CITY SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
90
S-33
OKLAHOMA RSA 3 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
91
S-34
OKLAHOMA RSA 9 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
92
S-35
PACIFIC TELESIS MOBILE SERVICES, LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
93
S-36
ST. JOSEPH SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
94
S-37
SAN ANTONIO SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS LLC,
its General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
95
S-38
SBMS CELLULAR TELECOMMUNICATIONS BLOOMINGTON LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
96
S-39
SBMS CELLULAR TELECOMMUNICATIONS SPRINGFIELD LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
97
S-40
SNET CELLULAR LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
98
S-41
SOUTHWESTERN BELL MOBILE SYSTEMS LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
99
S-42
SOUTHWESTERN BELL WIRELESS, LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
100
S-43
SPRINGWICH CELLULAR LIMITED PARTNERSHIP
By: SNET CELLULAR LLC, General
Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
101
S-44
TEXAS RSA 6 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
102
S-45
TEXAS RSA 7B 1 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
103
S-46
TEXAS RSA 9B 1 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
104
S-47
TEXAS RSA 9B4 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
105
S-48
TEXAS RSA 10B1 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
106
S-49
TEXAS RSA 18 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
107
S-50
TEXAS RSA 19 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
----------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
108
S-51
TEXAS RSA 20B1 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
109
S-52
OPEKA SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
110
S-53
VINELAND CELLULAR TELEPHONE
COMPANY LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
-------------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
111
S-54
WASHINGTON/BALTIMORE CELLULAR LIMITED PARTNERSHIP
By: WASHINGTON/BALTIMORE
CELLULAR HOLDCO LLC, General
Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
--------------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
112
S-55
WICHITA SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
113
S-56
WORCESTER TELEPHONE COMPANY
By: SOUTHWESTERN BELL MOBILE
SYSTEMS LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
---------------------------
Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
114
S-57
CCPR OF THE VIRGIN ISLANDS, INC.
By:/s/Paul R. Driscoll
-----------------------------
Paul R. Driscoll
Vice President
115
S-58
CCPR SERVICES, INC.
By:/s/Paul R. Driscoll
------------------------------
Paul R. Driscoll
Vice President
116
S-59
PINE BLUFF CELLULAR, INC.
By:/s/Paul R. Driscoll
------------------------------
Paul R. Driscoll
Vice President
117
S-60
PINNACLE CELLULAR LIMITED PARTNERSHIP
By: OZARK CELLULAR
CORPORATION, as general partner
By:/s/Paul R. Driscoll
------------------------------------
Paul R. Driscoll
Vice President
118
S-61
RADIOFONE HOLDINGS, INC.
By:/s/Paul R. Driscoll
------------------------------
Paul R. Driscoll
Vice President
119
S-62
SAN JUAN CELLULAR TELEPHONE COMPANY
By: CCPR, INC., General Partner
By:/s/Paul R. Driscoll
------------------------------
Paul R. Driscoll
Vice President
120
S-63
USVI CELLULAR TELEPHONE
CORPORATION
By:/s/Paul R. Driscoll
------------------------------
Paul R. Driscoll
Vice President