<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 1, 1998
REGISTRATION NO. 333-57715
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 5
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
<TABLE>
<S> <C> <C>
TRITON PCS, INC. DELAWARE 4812
TRITON MANAGEMENT COMPANY, INC. DELAWARE 4812
TRITON PCS HOLDINGS COMPANY L.L.C. DELAWARE 4812
TRITON PCS PROPERTY COMPANY L.L.C. DELAWARE 4812
TRITON PCS EQUIPMENT COMPANY L.L.C. DELAWARE 4812
TRITON PCS OPERATING COMPANY L.L.C. DELAWARE 4812
TRITON PCS LICENSE COMPANY L.L.C. DELAWARE 4812
EXACT NAME OF REGISTRANT STATE OR OTHER JURISDICTON OF PRIMARY STANDARD
AS SPECIFIED IN ITS CHARTER INCORPORATION OR ORGANIZATION INDUSTRIAL CLASSIFICATION CODE
TRITON PCS, INC. 23-2930873
TRITON MANAGEMENT COMPANY, INC. 23-2940271
TRITON PCS HOLDINGS COMPANY L.L.C. 23-2941874
TRITON PCS PROPERTY COMPANY L.L.C. 23-2941874
TRITON PCS EQUIPMENT COMPANY L.L.C. 23-2941874
TRITON PCS OPERATING COMPANY L.L.C. 23-2941874
TRITON PCS LICENSE COMPANY L.L.C. 23-2941874
EXACT NAME OF REGISTRANT IRS EMPLOYER
AS SPECIFIED IN ITS CHARTER IDENTIFICATION NUMBER
</TABLE>
375 TECHNOLOGY DRIVE
MALVERN, PA 19355
(610) 651-5900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
MICHAEL E. KALOGRIS
CHIEF EXECUTIVE OFFICER
TRITON PCS, INC.
375 TECHNOLOGY DRIVE
MALVERN, PA 19355
(610) 651-5900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------
COPIES TO:
JAMES F. ROGERS, ESQ. DAVID CLARK
LATHAM & WATKINS TRITON PCS, INC.
1001 PENNSYLVANIA AVENUE, N.W. 375 TECHNOLOGY DRIVE
SUITE 1300 MALVERN, PA 19355
WASHINGTON, DC 20004 (610) 651-5900
(202) 637-2200
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF AMOUNT AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER NOTE OFFERING PRICE FEE
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
11% Senior Subordinated
Discount Notes due
2008................... $511,989,000 58.595% $300,000,000(2) $88,500
- ------------------------------------------------------------------------------------
Subsidiary Guarantees of
the 11% Senior
Subordinated Discount
Notes due 2008......... -- -- -- (3)
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) The "Amount to be Registered" with respect to the 11% Senior Subordinated
Discount Notes due 2008 represents the aggregate principal amount at
maturity of such notes.
(2) Represents gross proceeds from the initial private offering of the 11%
Senior Subordinated Discount Notes due 2008 by Triton. The net proceeds
from the Private Offering were approximately $290 million after deducting
the Initial Purchasers' discounts and estimated transaction fees payable
by the Company.
(3) Pursuant to Rule 457(n), no separate registration fee is payable with
respect to the subsidiary guarantees.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
No form of prospectus is filed with this Amendment No. 5 to the Registration
Statement (the "Amendment"). This Amendment is being filed solely to update
the Exhibit Index and to refile Exhibit 10.37.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13 (S-1). OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the Registration Statement are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee................ $ 88,500
Printing and Engraving Expenses.................................... 65,000
Legal Fees and Expenses............................................ 70,000
Accounting fees and Expenses....................................... 25,000
Fees of Trustee (including counsel fees)........................... 10,000
Miscellaneous...................................................... 11,500
--------
$270,000
========
</TABLE>
ITEM 14 (S-1) AND ITEM 20 (S-4). INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law authorizes corporations to limit or
eliminate the personal liability of directors to corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. The duty of care requires that, when acting on behalf of the
corporation, directors must exercise an informed business judgment based on
all material information reasonably available to them. In the absence of the
limitations authorized by the Delaware statute, directors could be accountable
to corporations and their stockholders for monetary damages for conduct that
does not satisfy their duty of care. Although the statute does not change
directors' duty of care, it enables corporations to limit available relief to
equitable remedies such as injunction or rescission. The Restated Certificate
of Incorporation limits the liability of Holdings' directors to Holdings or
its stockholders to the fullest extent permitted by the Delaware statute.
Specifically, the directors of Holdings will not be personably liable for
monetary damages for breach of a director's fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
Holdings or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law (which relates to
the unlawful payment of dividend or unlawful stock purchase or redemption by a
corporation) or (iv) for any transaction from which a director derived an
improper personal benefit. The inclusion of this provision in the Restated
Certificate of Incorporation may have the effect of reducing the likelihood of
derivative litigation against directors and may discourage or deter
stockholders or management from bringing a lawsuit against directors for
breach of their duty of care, even though such an action, if successful, might
otherwise have benefited Holdings and its stockholders. In addition, pursuant
to the terms of the Kalogris and the Skinner Employment Agreements, the
Company will purchase director's and officer's liability insurance coverage
for such executives in amounts customary for similarly situated companies.
ITEM 16. (S-1) AND ITEM 21. (S-4). EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
-------
<S> <C>
3.1 Certificate of Incorporation of Triton PCS, Inc.**
3.2 By-laws of Triton PCS, Inc.**
3.3 Articles of Incorporation of Triton Management Company, Inc.+
3.4 Bylaws of Triton Management Company, Inc.+
3.5 Certificate of Formation of Triton PCS Holdings Company L.L.C.+
3.6 Certificate of Formation of Triton PCS License Company L.L.C.+
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<S> <C>
3.7 L.L.C. Agreement of Triton PCS License Company L.L.C.+
3.8 L.L.C. Agreement of Triton PCS Holdings Company L.L.C.+
3.9 Certificate of Formation of Triton PCS Equipment Company L.L.C.+
3.10 L.L.C. Agreement of Triton PCS Equipment Company L.L.C.+
3.11 Certificate of Formation of Triton PCS Operating Company L.L.C.+
3.12 L.L.C. Agreement of Triton PCS Operating Company L.L.C.+
3.13 Certificate of Formation of Triton PCS Property Company L.L.C.+
3.14 L.L.C. Agreement of Triton PCS Property Company L.L.C.+
4.1 Indenture, dated as of May 4, 1998, between Triton PCS, Inc., the
Guarantors party thereto and PNC Bank, National Association.*
4.2 Form of 11% Senior Subordinated Discount Notes (the "Private Notes")
(included in Exhibit 4.1).*
4.3 Form of 11% Senior Subordinated Discount Notes (the "Exchange Notes")
(included in Exhibit 4.1).*
4.4 Registration Rights Agreement, dated as of May 4, 1998, by and among
Triton PCS, Inc., the subsidiaries of Triton PCS, Inc. listed on the
signature pages thereto, and J.P. Morgan Securities Inc., Chase
Securities Inc. and Lehman Brothers Inc.*
5.1 Opinion of Latham & Watkins regarding the validity of the Exchange
Notes.+
10.1 Credit Agreement, dated as of February 3, 1998, among Triton PCS,
Inc., Triton PCS Holdings, Inc., the Lenders (as defined therein)
party thereto, and The Chase Manhattan Bank, as administrative agent.*
10.2 First Amendment, Consent and Waiver, dated as of April 16, 1998, among
Triton PCS, Inc., Triton PCS Holdings, Inc., the several banks and
other financial institutions and entities from time to time parties
thereto, and The Chase Manhattan Bank, as administrative agent.*
10.2.1 Second Amendment, dated as of July 29, 1998, among Triton PCS, Inc.,
Triton PCS Holdings, Inc., the several banks and other financial
institutions and entities from time to time parties thereto, and The
Chase Manhattan Bank, as administrative agent.**
10.3 Securities Purchase Agreement, dated as of October 8, 1997, among AT&T
Wireless PCS, Inc., the cash equity investors listed on the signature
pages thereto, the management stockholders listed on the signature
pages thereto and Triton PCS, Inc.**
10.4 Amendment No. 1 to Securities Purchase Agreement and Consent
Agreement, dated as of March 10, 1998, by and among AT&T Wireless PCS,
Inc., the cash equity investors listed on the signature pages thereto,
the management stockholders listed on the signature pages thereto, and
Triton PCS Holdings, Inc. (f\k\a Triton PCS, Inc.).*
10.5 Closing Agreement, dated as of February 4, 1998, among AT&T Wireless
PCS, Inc., Triton PCS Holdings, Inc., CB Capital Investors, L.P., J.P.
Morgan Investment Corporation, Sixty Wall Street SBIC Fund, L.P.,
Private Equity Investors III, L.P., Equity-Linked Investors-II,
Toronto Dominion Capital (USA), Inc., First Union Capital Partners,
Inc., DAG-Triton PCS, Inc., Michael E. Kalogris and Steven R.
Skinner.*
10.6 Asset Purchase Agreement, dated as of March 10, 1998, between Triton
PCS, Inc. and Vanguard Cellular Systems of South Carolina, Inc.*
10.7 Preferred Stock Purchase Agreement by and among Cash Equity Investors,
Management Stockholders, Independent Directors, and Triton PCS
Holdings, Inc. dated as of June 29, 1998.**
10.8 AT&T Wireless Services Network Membership License Agreement, dated as
of February 4, 1998, between AT&T Corp. and Triton PCS Operating
Company L.L.C.*
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<S> <C>
10.9 Stockholders Agreement, dated as of February 4, 1998, among AT&T
Wireless PCS, Inc., Triton PCS Holdings, Inc., CB Capital Investors,
L.P., J.P. Morgan Investment Corporation, Sixty Wall Street SBIC Fund,
L.P., Private Equity Investors III, L.P., Equity-linked Investors-II,
Toronto Dominion Capital (USA), Inc., First Union Capital Partners,
Inc., DAG-Triton PCS, L.P., Michael E. Kalogris, Steven R. Skinner,
David D. Clark, Clyde Smith, Patricia Gallagher and David Standig.*
10.10 Investors Stockholders' Agreement, dated as of February 4, 1998, among
CB Capital Investors, L.P., J.P. Morgan Investment Corporation, Sixty
Wall Street SBIC Fund, L.P., Private Equity Investors III, L.P.,
Equity-Linked Investors-II, Toronto Dominion Capital (USA), Inc., DAG-
Triton PCS, L.P., First Union Capital Partners, Inc., and the
stockholders named therein.*
10.11 Intercarrier Roamer Service Agreement, dated as of February 4, 1998,
between AT&T Wireless Services, Inc. and Triton PCS Operating Company
L.L.C.*
10.12 Master Services Agreement, dated as of January 19, 1998, between
Triton PCS Operating Company, L.L.C., and Wireless Facilities Inc.+#
10.13 Site Acquisition, Zoning and A & E Supervision Agreement, dated as of
December 15, 1997, between Triton PCS, Inc. and Gearon & Co., Inc.**
10.14 Site Development Services Agreement, dated as of December 10, 1997,
between Triton PCS, Inc. and Entel Technologies, Inc.**
10.15 Ericsson Acquisition Agreement, dated as of March 11, 1998, between
Triton Equipment Company L.L.C. and Ericsson, Inc.+#
10.16 Employment Agreement, dated as of February 4, 1998, among Triton
Management Company, Inc., Triton PCS Holdings, Inc. and Michael E.
Kalogris.*
10.16.1 Amendment No. 1 to Employment Agreement dated as of June 29, 1998
among Triton Management Company, Inc., Triton PCS Holdings, Inc., and
Michael E. Kalogris.**
10.17 Employment Agreement, dated as of January 8, 1998, between Triton
Management Company and Clyde Smith.*
10.18 Employment Agreement, dated as of February 4, 1998, between Triton
Management Company and Steven R. Skinner.*
10.18.1 Amendment No. 1 to Employment Agreement dated as of June 29, 1998
among Triton Management Company, Inc., Triton PCS Holdings, Inc., and
Steven R. Skinner.**
10.19 Amended and Restated Common Stock Trust Agreement for Management
Employees and Independent Directors dated as of June 26, 1998.**
10.20 Form of Pledge Agreement, dated as of February 4, 1998, between
certain shareholders and Triton PCS, Inc. Each of (a) Michael E.
Kalogris, (b) Steven R. Skinner, (c) Sixty Wall Street SBIC Fund,
L.P., (d) CB Capital Investors, L.P., (e) J.P. Morgan Investment
Corporation, (f) DAG-Triton PCS, L.P., (g) First Union Capital
Partners, Inc., (h) Toronto Dominion Capital (USA), Inc. and (i)
Private Equity Investors III, L.P., are party to separate Pledge
Agreements. The terms of each Pledge Agreement are identical other
than (1) the shareholder party thereto and (2) the number of shares of
stock held by such shareholder and, therefore, the number of shares
subject to the applicable Pledge Agreement.+
10.21 Master Tower Site Lease Agreement, dated as of February 13, 1998,
between Triton PCS Property Company L.L.C. and SCANA Communications,
Inc.**#
10.22 Master License Agreement, dated as of March 15, 1998, between Triton
PCS Property Company L.L.C. and BellSouth Communications, Inc.**#
10.23 Master Tower Site Lease Agreement, dated as of May 28, 1998, between
Triton PCS Property Company L.L.C. and AT&T Corp.**#
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<S> <C>
10.24 Independent Director Stock Award Plan adopted as of February 4,
1998.**
10.25 Letter Agreement, dated as of June 26, 1998 between Triton PCS
Holdings, Inc. and Scott Anderson.**
10.26 Amendment No. 1 to Letter Agreement dated as of June 29, 1998 between
Triton Management Company, Inc. and Scott Anderson.**
10.27 Letter Agreement, dated as of June 26, 1998 between Triton PCS
Holdings, Inc. and John Beletic.**
10.28 Amendment No. 1 to Letter Agreement dated as of June 29, 1998 between
Triton Management Company, Inc. and John Beletic.**
10.29 Asset Purchase Agreement dated as of August 20, 1998 between Triton
PCS Holdings, Inc. and AT&T Wireless PCS, Inc.**
10.30 Construction and Operating Agreement dated as of July 31, 1998 by and
between Triton PCS Operating Company L.L.C. and AT&T Wireless PCS,
Inc.**
10.31 Letter Agreement, dated as of February 1998, between Clyde Smith and
Triton Management Company, Inc.*
10.31.1 Amendment No. 1 to Letter Agreement dated as of June 29, 1998 between
Triton Management Company, Inc. and Clyde Smith.**
10.32 Letter Agreement, dated as of February 1998, between David A. Clark
and Triton Management Company, Inc.*
10.32.1 Amendment No. 1 to Letter Agreement dated as of June 29, 1998 between
Triton Management Company, Inc. and David D. Clark.**
10.33 Letter Agreement, dated as of February 1998, between David Standig and
Triton Management Company, Inc.*
10.33.1 Amendment No. 1 to Letter Agreement dated as of June 29, 1998 between
Triton Management Company, Inc. and David Standig.**
10.34 Letter Agreement, dated as of February 1998, between Michael Mears and
Triton Management Company, Inc.*
10.34.1 Amendment No. 1 to Letter Agreement dated as of June 29, 1998 between
Triton Management Company, Inc. and Michael Mears.**
10.35 Letter Agreement, dated as of February 1998, between Patricia
Gallagher and Triton Management Company, Inc.*
10.35.1 Amendment No. 1 to Letter Agreement dated as of June 29, 1998 between
Triton Management Company, Inc. and Patricia Gallagher.**
10.36 Shared Communications Facilities Master Agreement, dated as of June 3,
1998, between Triton PCS Property Company L.L.C. and The Commonwealth
of Virginia Department of Transportation.**#
10.37 Multiple Site Tower Attachment Lease Agreement, dated as of June 1,
1998, between Triton PCS Property Company L.L.C. and 360
Communications Company.***
10.38 Master Tower License Agreement, dated as of June 12, 1998, between
Triton PCS Property Company L.L.C. and Appalachian Power Company.**#
10.39 Master Site Agreement, dated as of April 17, 1998, between Triton PCS
Property Company L.L.C. and Nextel Communications, Inc.**#
10.40 Lease Agreement, dated as of April 9, 1998, between Triton PCS
Property Company L.L.C. and Virginia Electric and Power Company.**#
12.1 Statement of Computation of Deficiency of Earnings to Fixed Charges.**
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
-------
<S> <C>
21.1 Subsidiaries of Triton PCS, Inc.*
23.1 Consent of Latham & Watkins (included in their opinion filed as
Exhibit 5.1).+
23.2 Consent of KPMG Peat Marwick LLP.**
23.3 Consent of Arthur Andersen LLP.**
25.1 Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of 1939 of PNC Bank, National Association.**
27.1 Financial Data Schedule.**
99.1 Form of Letter of Transmittal and related documents to be used in
conjunction with the Exchange Offer.**
</TABLE>
- --------
* Filed with the original June 25, 1998 Registration Statement.
** Filed with the September 3, 1998 Amendment No. 1.
***Refiled with the October 1, 1998 Amendment No. 5.
+ Filed with the September 25, 1998 Amendment No. 2.
# Portions of this exhibit have been omitted pursuant to a request for
confidential treatment.
II-5
<PAGE>
SCHEDULES OMITTED
Schedules not listed above are omitted because of the absence of the
conditions under which they are required or because the information required
by such omitted schedules is set forth in the financial statements or the
notes thereto.
ITEM 17 (S-1) AND ITEM 22 (S-4). UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions described under Item 20 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim of indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted against
the Registrant by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into this Prospectus pursuant to
Items 4, 10(b), 11, or 13 of Form S-4, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This undertaking also includes documents filed
subsequent to the effective date of the Registration Statement through the
date of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in
the Registration Statement when it became effective.
II-6
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF MALVERN,
STATE OF PENNSYLVANIA ON OCTOBER 1, 1998.
Triton PCS, Inc.
/s/ Michael Kalogris
By: ______________________________________
Sole Director and Chief Executive
Officer
Triton Management Company, Inc.
/s/ Michael Kalogris
By: ______________________________________
Sole Director and Chief Executive
Officer
Triton PCS Holdings Company L.L.C.
By: Triton Management Company, Inc., its
manager
/s/ Michael Kalogris
By: ______________________________________
Sole Director and Chief Executive
Officer
Triton PCS Property Company L.L.C., Inc.
By: Triton Management Company, Inc., its
manager
/s/ Michael Kalogris
By: ______________________________________
Sole Director and Chief Executive
Officer
Triton PCS Equipment Company L.L.C.
By: Triton Management Company, Inc., its
manager
/s/ Michael Kalogris
By: ______________________________________
Sole Director and Chief Executive
Officer
Triton PCS Operating Company L.L.C.
By: Triton Management Company, Inc., its
manager
/s/ Michael Kalogris
By: ______________________________________
Sole Director and Chief Executive
Officer
Triton PCS License Company L.L.C.
By: Triton Management Company, Inc., its
manager
/s/ Michael Kalogris
By: ______________________________________
Sole Director and Chief Executive
Officer
II-7
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND AS OF
THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Michael Kalogris Sole Director and Chief
- ------------------------------- Executive Officer of Triton October 1,
MICHAEL KALOGRIS PCS, Inc. and Triton 1998
Management Company, Inc.
(Principal Executive
Officer), and principal
executive officer of each
of Triton PCS Holdings
Company L.L.C., Triton PCS
Property Company L.L.C.,
Triton PCS Equipment
Company L.L.C., Triton PCS
Operating Company L.L.C.
and Triton PCS License
Company L.L.C., by virtue
of being the Chief
Executive Officer of Triton
Management Company, the
manager of each such
entity.
/s/ David Clark Senior Vice President, Chief
- ------------------------------- Financial Officer and October 1,
DAVID CLARK Secretary of Triton PCS, 1998
Inc. and Triton Management
Company, Inc. (Principal
Financial and Accounting
Officer) and principal
financial and accounting
officer of each of Triton
PCS Holdings Company
L.L.C.,, Triton PCS
Property Company L.L.C.,
Triton PCS Equipment
Company L.L.C., Triton PCS
Operating Company L.L.C.
and Triton PCS License
Company L.L.C., by virtue
of being the Chief
Financial Officer of Triton
Management Company, the
manager of each such
entity.
</TABLE>
II-8
<PAGE>
EXHIBIT 10.37
MULTIPLE SITE TOWER ATTACHMENT LEASE AGREEMENT
----------------------------------------------
THIS MULTIPLE SITE TOWER ATTACHMENT LEASE AGREEMENT (the Multiple Site
Lease) is made this day of June 1, 1998, by and between 360" COMMUNICATIONS
COMPANY (ON BEHALF OF ITSELF AND OF THOSE SUBSIDIARIES OR AFFILIATES NOW IN
EXISTENCE OR TO BE FORMED HEREAFTER EXECUTING ANY ADDENDUM HERETO, AND THEIR
SUCCESSORS AND ASSIGNS), whose address is 360' Communications Company, 8725
Higgins Road, Chicago, IL 60631-2702 (Lessor), and TRITON PCS PROPERTY COMPANY,
LLC (ON BEHALF OF ITSELF AND OF ITS SUBSIDIARIES OR AFFILIATES NOW IN EXISTENCE
OR TO BE FORMED HEREAFTER EXECUTING ANY ADDENDUM HERETO, AND THEIR SUCCESSORS
AND ASSIGNS), whose address is 9211 Arboretum Parkway, Suite 200, Richmond, VA
23236 (Lessee).
WHEREAS, Lessor owns towers, and owns or leases ground space at the
base of such towers;
WHEREAS, Lessee desires to lease tower space on certain of Lessor's
towers for the installation, maintenance, operation and replacement of Lessee's
Facilities (as defined below); and
WHEREAS, the parties desire to enter into this Lease (as defined
below) to define their general rights and responsibilities with respect to the
leased space on each tower, and desire to execute an Addendum (as defined below)
for each specific Site (as defined below);
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree this Lease (as defined
below) shall define their rights and responsibilities for each Site (as defined
below) as follows:
AGREEMENT
---------
1. TERMS AND DEFINITIONS. For purposes of this Lease, the following
---------------------
terms shall have the following definitions and meanings
(capitalized terms are defined in alphabetical order):
(a) Addendum. The document, a form of which is attached
--------
hereto as Exhibit A, which, when completed and executed by the
parties, will, together with this Multiple Site Lease, constitute
the entire Lease for a Site.
(b) As Built Survey. A survey completed after the
----------------
construction of Lessee's Facilities locating the Premises to a
monument or the Tower.
(c) Base Rent. The annual rent amount paid by Lessee to
----------
Lessor for a Site, as further described in the applicable
Addendum.
(d) Execution Date. The date on which a specific Addendum
--------------
is fully executed.
(e) Facilities. A party's antenna arrays and related
-----------
equipment for its communications systems, including, without
limitation, antennas, microwave dishes, cables, wires, equipment
buildings and shelters, concrete pads, generators, accessories,
and all replacements, enhancements and modifications
<PAGE>
thereto, as further described in the applicable Addendum. A
party's Facilities shall be the personal property and fixtures of
that party.
(f) FAA. Federal Aviation Administration.
----
(g) FCC. Federal Communications Commission.
----
(h) Ground Space. A parcel of land leased to Lessee at a
-------------
Site for the purpose of installing, maintaining, operating and
replacing its Facilities, as further described in the applicable
Addendum.
(i) Initial Term. The initial term as further described in
--------------
the applicable Addendum, subject to the earlier termination of
the Lease or the Multiple Site Lease, and the earlier termination
or expiration of any applicable Master Lease.
(j) Interference Contractor. An independent radio frequency
-------------------------
interference contractor appointed by Lessor and Lessee to
determine the cause of radio frequency interference affecting a
party's Facilities.
(k) Lease. For each Site, this Multiple Site Lease and the
-------
fully executed Addendum applicable to each Site.
(l) Lease Commencement Date. The date on which the Lease
-------------------------
commences with respect to an Addendum for a Site as further
described it the applicable Addendum.
(m) Lease Term. The Initial Term and all properly exercised
------------
Renewal Term(s), if any, of a specific Addendum, as further
described in the applicable Addendum.
(n) Master Landlord. If applicable, the person or entity
-----------------
from whom the Lessor leases the Property.
(o) Master Lease. If applicable, the lease agreement
--------------
between Lessor and Master Landlord with respect to the Property.
(p) Multiple Site Lease Commencement Date. The term
---------------------------------------
Multiple Site Lease Commencement Date shall have the meaning
given to it in Section 5 herein.
(q) Multiple Site Lease Term. The term Multiple Site Lease
--------------------------
Term shall have the meaning given to it in Section 5 herein.
(r) NEPA. National Environmental Policy Act, as codified in
------
the FCC's Rules at 47 C.F.R. (S) 1. 1301 et seq.
(s) Premises. The term Premises shall have the meaning
---------
given to it in Section 4 herein.
<PAGE>
(t) Prior Lessee. A third party who has installed or has
--------------
the right to install equipment on the Tower prior to the
installation of Lessee's Facilities on the Tower.
(u) Property. The parcel of land which Lessor owns or
--------
leases, as further described in the applicable Addendum, on which
a particular Site is located.
(v) Renewal Term. A rental term in addition to and
------------
subsequent to the Initial Term, as further described in the
applicable Addendum.
(w) Secured Party. A bona fide third-party financing
-------------
entity.
(x) Site. A specific Tower Space and Ground Space (if
------
applicable) leased by Lessor to Lessee, and the property
encumbered by easements granted by Lessor to Lessee, pursuant
to this Lease.
(y) Subsequent Lessee. A third party who installs or has
-------------------
the right to install equipment on the Tower after the
installation of Lessee's Facilities on the Tower.
(z) Tower. The tower owned by Lessor on which Lessee leases
-------
space to locate its Facilities, as further described in the
applicable Addendum.
(aa) Tower Space. Space on the Tower leased to Lessee for
-------------
the purpose of installing, maintaining, operating and replacing
Lessee's Facilities, as further described in the applicable
Addendum.
2. COLOCATION PROJECTS BY ADDENDUM. Lessee shall execute an Addendum
--------------------------------
in the form attached as Exhibit A for each Site Lessor and Lessee
agree upon for colocation. Upon execution of an Addendum, this
Multiple Site Lease and the Addendum together will constitute the
Lease governing the Site contemplated in the Addendum.
3. LEASE SUBJECT TO MASTER LEASE. This Lease is subject and
------------------------------
subordinate to any Master Lease, which, if it exists, is
incorporated herein by reference and attached to the applicable
addendum( Subject to withholding and redaction as required by
confidentiality and non-disclosure provisions in the Master
Lease).
4. LEASE. Lessor hereby leases to Lessee and Lessee hereby lease
-----
from Lessor the Following:
(a) Tower Space. Subject to the terms herein, Lessor hereby
------------
lease to Lessee, and Lessee hereby lease from Lessor Tower Space
on the Tower as set forth in the applicable Addendum; however,
Lessor retains the right to locate cables, lines, wires, and
other communication accessories within the Tower Space; and
<PAGE>
(b) Ground Space. Subject to the terms herein, Lessor
-------------
hereby leases to Lessee, and Lessee hereby leases from Lessor
Ground Space, if such Ground Space is provided for in the
applicable Addendum.
(c) Premises Defined The Tower Space and the Ground Space
----------------
(if any) leased by Lessor to Lessee is referred to collectively
herein as the "Premises." In the event Lessee does not lease
Ground Space from Lessor, only the Tower Space shall constitute
the Premises. The Premises are leased for the sole purpose of
installing, maintaining, operating, and replacing Lessee's
Facilities for its intended use.
5. TERM
----
(a) Multiple Site Lease Commencement Date and Term. The
-----------------------------------------------
Multiple Site Lease is fully executed. The multiple Site term
shall begin on the Multiple Site Lease Commencement date and end
after the expiration or termination of the last existing
Addendum.
(b) Lease Commencement Date and Initial Term The
----------------------------------------
Commencement Date and Initial Term of a particular Lease shall be
as set forth in the Addendum applicable to such Lease.
(c) Lease Renewal Terms. The Renewal Terms, if any, of a
--------------------
particular Lease shall be as set forth in the Addendum applicable
to such Lease. Lessee may renew a Lease pursuant to the terms of
the applicable addendum by giving written notice address shown
below six (6) months prior to the expiration date of the then
current term of the applicable Lease. Lessee shall not have the
option to renew a Lease if Lessee is, at the time of giving such
notice, or on the effective date of such Renewal Term, in default
of any provision or term of this Lease with respect to such
Addendum.
(d) Lease Term Subject to Master Lease Notwithstanding any
----------------------------------
provisions herein to the contrary, the term of each Lease shall
be subject to and co- terminus with the corresponding Master
Lease
(e) Termination. A Lease may be terminated as provided
-----------
herein, and shall automatically terminate upon the termination or
expiration of the corresponding Master Lease, if any.
6. INITIAL ATTACHMENT FEE AND BASE RENT.
------------------------------------
(a) Initial Attachment Fee. On the Lease Commencement Date,
----------------------
Lessee shall pay to Lessor the non-refundable initial attachment
fee as set forth in the applicable Addendum.
(b) Base Rent. During the Initial Term, Lessee shall pay to
---------
Lessor the Base Rent as set forth in the applicable Addendum.
(c) Rent Adjustments Beginning in the first year of each
----------------
Renewal Term, the then current Base Rent shall be adjusted by
multiplying it by the
<PAGE>
change in the Consumer Price Index (CPI) for the immediately
preceding term for which Base Rent has remained constant. For
purposes of calculation, the CPI used shall be the Consumer Price
Index-U.S. City Averages for Urban Wage Earners and Clerical
Workers, All Items (1982-84=100) published by the United States
Department of Labor, Bureau of Labor Statistics.
(d) Payment Address. All payments of Base Rent and/or other
---------------
charges hereunder shall be remitted to the address set forth in
the applicable Addendum (or such other addressees) as Lessor may
designate from time to time).
7. INSTALLATION OF FACILITIES. Lessee shall have the right, subject
--------------------------
to the requirements herein, and at Lessee's sole expense, to
install, maintain, operate and replace its Facilities on the
Premises.
(a) Master Landlord's Consent. In the event a Master Lease
-------------------------
exists, Lessee shall not commence construction until the required
consent and/or certification required pursuant to the Master
Lease has been obtained.
(b) Approvals and Permits. Lessee shall not commence
---------------------
construction until it has obtained all the necessary federal,
state and local approvals and permits, copies of which shall be
provided to Lessor at Lessor's request.
(c) Tower Analysis. Prior to any work on or attachment to
--------------
the Tower, Lessee shall submit to Lessor a completed Tower
analysis prepared by the Tower manufacturer or other firm
approved by Lessor:
(i) taking into account all of Lessee's Facilities
identified in the applicable Addendum, whether or not all
such Facilities will be installed initially, and
(ii) describing all installations, modifications,
replacements or relocations of all antennas, dishes, cables
or other equipment on the Tower. Upon Lessee's request,
Lessor shall provide information to Lessee regarding current
and proposed attachments on the Tower;
(iii) including information demonstrating continued
compliance with the Tower manufacturer's warranty
requirements, current EIA/TIA standards, other legal
requirements for the Tower, and any other information
reasonably requested by Lessor; and
(iv) certifying the proposed installation,
modification, or relocation will not exceed the load
capacity of the Tower.
(d) Plans and Specifications; Contractor Approval. Prior to
-----------------------------------------------
construction, Lessee shall submit to Lessor (i) the plans and
specifications, a detailed site plan and any other construction
documents setting forth the proposed construction, installation
and other work to be performed on the Premises and Property, and
(ii) the names of the proposed contractors and
<PAGE>
subcontractors performing any such construction, installation or
other work, all of which are subject to Lessor's approval prior
to construction.
(e) Separation Distance. Except as otherwise agreed by the
---------------------
parties hereto, Lessee's antennas or dishes shall be located no
less than twenty (20) feet from Lessor's or any other lessee's
antennas or dishes on the Tower, measured from both (i) the top
of Lessee's proposed antennas or dishes to the bottom of Lessor's
or any other lessee's antennas or dishes or (ii) the bottom of
Lessee's proposed antennas or dishes to the top of Lessor's or
any other lessee's antennas or dishes.
(f) Pre-Construction Meeting. Prior to commencing any
--------------------------
installation and/or construction, a duly authorized
representative of Lessee shall meet with a duly authorized
representative of Lessor at the Tower Site to mutually approve
the construction schedule, such approval not to be unreasonably
withheld or delayed by either party. Lessor and Lessee agree to
cooperate with one another in scheduling such pre-construction
meeting.
(g) Portal Drilling. If the Tower is a monopole, Lessee, at
-----------------
its sole cost, shall be responsible for installing any platforms
and cutting any portals required to accommodate Lessee's
Facilities; provided, however, Lessee shall not cut any portal in
the Tower if the cutting of such portal would adversely affect
Lessor's operations, any manufacturer's warranty, or the
integrity of the Tower.
(h) As-Built Drawings. Following the completion of any
------------------
installation, modification or relocation (other than a relocation
under Section 10), Lessee shall provide to Lessor, at Lessee's
expense, updated as-built drawings, initialed by Lessee,
documenting that all installed Facilities on the Premises and
Property conform to the plans and specifications, Site plan, and
other construction documents previously approved by Lessor. The
as-built drawings shall include an As-Built Survey. Upon receipt,
provided the As-Built Survey conforms to the plans and
specifications, Site plan and other construction documents
previously approved by Lessor, Lessor shall initial the As-Built
Survey, and the As-Built Survey will be Schedule 2 to the
applicable Addendum.
(i) Third-Party Inspection. Following the completion of any
------------------------
installation, modification or relocation but prior to the
activation of any Lessee Facilities affected thereby, Lessee, at
Lessee's expense, shall engage an approved, independent third-
party inspector to perform an inspection of the Tower and to
certify in writing to Lessor that all such work has been properly
performed and done in compliance with all applicable plans,
specifications, drawings and/or other requirements.
(j) Later Installation of Facilities. Lessee is not
----------------------------------
required to install all of its Facilities initially. Lessee's
later installation of additional antennas and cables which are
identified as part of the Facilities in the applicable Addendum
shall be treated as an initial installation, and Lessee shall not
be required to comply again with the provisions of Section 7(c)
(unless additional antennas and
<PAGE>
equipment have been attached to the Tower since the date of
Lessee's initial tower analysis), or Section 7(d) (unless a
contractor different from the one previously approved will
perform the work); provided, however, Lessee shall deliver to
Lessor a revised As-Built Survey to Lessor, and comply with the
other provisions of this Section 7.
8. TOWER MODIFICATION OR REPLACEMENT. If the parties so agree
----------------------------------
pursuant to a separate agreement prepared by Lessor, Lessee
may, at its sole cost, structurally enhance or replace the
Tower to accommodate Lessee's proposed Facilities; provided,
however, such enhancement or replacement must comply with all
applicable laws, regulations and requirements of any federal,
state or local authority, and must not interfere with the
operation of Lessor's or other lessees' Facilities located on
the Tower and/or Property. Lessee shall pay all costs incurred
by Lessor and other lessees on the Tower to relocate their
Facilities on the enhanced or new tower. Upon completion of
and payment by Lessee for the structural enhancements or new
Tower, such structural enhancements and/or new Tower shall be
Lessor's property, and Lessee hereby conveys, transfers and
assigns to Lessor such enhancements and/or new Tower free of
all liens and encumbrances except for the rights of Lessee and
other lessees to locate on the Tower. Lessee's replacement or
modification of the Tower shall comply with the provisions of
Section 7.
9. TOWER COMPLIANCE.
----------------
(a) Lessor's Representations and Duties. Lessor represents
-------------------------------------
and warrants that the Tower, its lighting system and markings are
in compliance with all relevant and material government
regulations, including all applicable FCC and FAA rules and
regulations. Lessor shall maintain, repair and operate, at its
sole cost and expense, the Tower and its Facilities in compliance
with such government regulations.
(b) Lessee's Right to Monitor and Assess Condition of
-------------------------------------------------
Tower . Lessor consents to Lessee's installation, at Lessee's
------
sole cost, of equipment required to monitor the Tower for
compliance with government regulations, provided such equipment
does not interfere with the operation of Lessor's Facilities or
those of another lessee. Lessor further agrees to permit Lessee,
at Lessee's sole cost, to assess the condition of the Tower
annually, including, but not limited to, its structural integrity
and compliance with all applicable governmental regulations.
<PAGE>
10. FACILITIES RELOCATION AND MODIFICATION. Lessor may require the
--------------------------------------
relocation of Lessee's Facilities to a different space on the
Tower and/or Property to accommodate the installation,
replacement, modification and enhancement of Lessor's
Facilities, but not those of a Subsequent Lessee. Within one
hundred and eighty (180) days of receiving notice from Lessor,
Lessee shall relocate its Facilities, at Lessor's expense, to
the new space on the Tower and/or Property designated by Lessor;
provided, however, that Lessor shall use good faith efforts to
relocate Lessee's Facilities to comparable space on the Tower
and/or Property and, if the relocated space is unacceptable to
Lessee in Lessee's reasonable discretion, Lessee may terminate
the applicable Addendum as provided in Section 27(f). In the
event that Lessor requires Lessee to relocate its Facilities
pursuant to this Section, Lessor agrees not to require Lessee to
relocate its Facilities again for a period of twelve (12) months
from the date the previous relocation was effected. Lessor shall
have no obligation hereunder to pay for any modification or
enhancement of Lessee's Facilities or the Tower, including,
without limitation, any rebuilds.
11. EASEMENTS.
----------
(a) Ingress and Egress: Advance Notice. Lessor hereby
----------------------------------
grants to Lessee during the Lease Term (i) the non-exclusive
right of ingress, egress, and access over the Property and the
Tower to the Tower Space as depicted in Schedule 3 of the
applicable Addendum; and (ii) if the Premises include the Ground
Space, a non-exclusive easement during the Lease Term for
ingress, egress and access to the Premises as depicted in
Schedule 1 of the applicable Addendum across (1) the Property;
(2) the property of the Master Landlord to the extent and in the
locations the Master Landlord granted ingress, egress and access
easements to Lessor in the Master Lease, so long as such rights
may be subleased or assigned by Lessor under the Master Lease,
and (3) the property of a third party to the extent and in the
locations the third party granted ingress, egress and access
easements to Lessor in a deed of easement, so long as such
rights may be subleased or assigned under such deed of easement.
Lessee or Lessee's qualified, insured contractors under Lessee's
direct supervision shall have access to the Premises and
Lessee's Facilities upon twenty-four (24) hours notice to
Lessor. The foregoing notwithstanding, Lessee shall have access
to the Premises and Lessee's Facilities immediately and without
notice in the event of an emergency, and Lessee shall notify
Lessor as soon thereafter as practicable of Lessee's access
during such emergency.
(b) Utilities, Cable Runs. Lessor hereby grants to Lessee
---------------------
the non-exclusive right during the Lease Term to place utilities
and cable runs to and on the Tower, at locations satisfactory to
Lessor, reasonably necessary to operate Lessee's Facilities. If
the Premises include the Ground Space, Lessor hereby grants to
Lessee a non-exclusive easement during the Lease Term to place
utilities or cable runs on or bring utilities reasonably
necessary to operate Lessee's Facilities across the (i)
Property; and (ii) the property of the Master Landlord to the
extent and in the locations the Master Landlord granted utility
and cable run easements to Lessor, so long as such rights may be
subleased or assigned; and (iii) the property of a third party
to the extent and in the locations
<PAGE>
the third party granted utility and cable run easements to
Lessor in a deed of easement, so long as such rights may be
subleased or assigned under such deed of easement. Lessee shall
pay the cost of all utility service necessary to install,
maintain and operate Lessee's Facilities. Where practicable,
Lessee shall install a separate meter for Lessee's use. Lessee
shall obtain and pay the cost of telephone connections.
Subject to the terms of the Master Lease and this Lease, Lessee has
the right, but not the obligation, to improve at its sole cost the easements
granted herein; provided, however, no improvements shall be made without
Lessor's prior written approval.
12. INSURANCE
---------
For each Site, Lessee shall maintain the following minimum
insurance coverages and limits (written by insurance companies
with a Best's rating of at least an "A-") to protect Lessee and
Lessor from any and all claims against Lessee and/or Lessor for
damages for personal injury, property damage or death which may
be sustained by Lessee, Lessor, their respective officers,
employees and agents, or by any third parties:
Worker's Compensation and Employer's Liability
(1) Coverage A -- Statutory Benefits. Statutory
coverage, including exempt employments.
(2) Coverage B -- Employer's Liability. Limits of
at least $500,000.
(3) Extensions of coverage. Proprietors, partners
and executive officers coverage.
Commercial General Liability.
----------------------------
(1) Extension of Coverage. Contractual liability
and punitive damages coverage.
(2) Minimum Limits.
$1,000,000 combined single limit each
occurrence of bodily injury and/or property
damage.
$2,000,000 general aggregate per Site
$2,000,000 products/completed operations
aggregate
Commercial Automobile Coverage.
(1) Extension of Coverage. Coverage for all owned,
hired and non-owned autos.
<PAGE>
(2) Minimum Limits. $ 1,000,000 combined single
limit each accident for bodily injury and/or
property damage.
(iv) Umbrella/Excess Liability.
-------------------------
(1) Coverage. Excess of employer's liability,
commercial general liability and commercial
automobile liability insurance policies,
including all extensions of coverage.
(2) Minimum Limits. $4,000,000 each occurrence.
The minimum amounts of insurance required in this Section may be
satisfied by Lessee purchasing primary coverage in the amounts specified or by
Lessee buying a separate umbrella and/or excess policy together with lower limit
primary underlying coverage.
(b) Any deductibles, self-insured retentions (SIR), loss
limits, retentions, etc., shall be the responsibility of
Lessee.
(c) Lessor, its directors, officers and employees shall
be named as additional insureds under all General Liability,
Automobile Liability and Umbrella/Excess Liability Policies
obtained by Lessee with respect to each Addendum. Such
additional insured endorsement shall cover Lessor for all
claims arising out of work or operations performed by or on
behalf of Lessee with respect to the applicable Addendum,
shall provide coverage regardless of whether a claim arises
out of the alleged negligence of Lessor, shall not exclude
liability for negligence of Lessor, and shall provide that
such additional insurance is primary insurance and shall not
contribute with any insurance or self-insurance that Lessor
has procured to protect itself. All of the insurance afforded
by Lessee shall be exhausted before Lessor becomes involved,
including Lessor's coverage as an additional insured under
Lessee's Umbrella/Excess Liability insurance policy(ies).
Lessor's insurance coverages shall be excess over any
insurance afforded by Lessee.
(d) Before entering any Site, Lessee agrees to submit to
Lessor's designated representative a certificate of insurance,
such certificate to be signed by a duly authorized officer or
agent of the insurer, certifying that the minimum insurance,
coverages and limits set forth in subsection (a) above are in
effect, that Lessee has complied with the provisions of
subsections (b) and (c) above, and that Lessor will receive at
least thirty (3 0) days' prior written notice of policy
cancellation or non-renewal. At least thirty (30) days prior
to the expiration of the policy, Lessor must be furnished
satisfactory evidence that such policy has been renewed or
replaced by another policy.
At Lessor's request, Lessee shall provide copies of the appropriate
insurance provisions or endorsements as evidence that the required insurance has
been procured, and that Lessor has been named as an additional insured. In no
event shall permitting Lessee to enter the Site be construed as a waiver of the
right of Lessor to assert a claim against Lessee for breach of the obligations
established herein.
<PAGE>
(e) Lessee shall require all of its agents and contractors to
comply with each of the provisions of this insurance Section. This
includes, but is not limited to, naming Lessor as an additional
insured under all liability insurance policies. Prior to Lessee's
agents and contractors entering any Site, Lessee shall require and
maintain certificates of insurance from each such agent or contractor
evidencing the required coverages. At Lessor's request, Lessee shall
timely supply to Lessor copies of such certificates of insurance.
13. SAFETY. Lessee, for itself and its agents and contractors, agrees to
-------
observe the highest safety standards at the Property, which standards
shall, at a minimum, meet the following guidelines:
(a) Lessee shall take necessary safety and other precautions to
protect property and persons from damage, injury or illness arising
out of Lessee's presence at the Site. Lessee shall comply strictly
with local, municipal, state and national laws, orders, and
regulations pertaining to health or safety which are applicable to
Lessee or to the Site, including without limitation the Occupational
Safety and Health Act of 1970 (84 U.S.C. Section 1590), as amended,
and any state plans approved thereunder, and regulations thereunder,
to the extent applicable, and Lessee warrants the materials, equipment
and facilities, whether temporary or permanent, used or furnished by
Lessee in connection with its presence on the Site shall comply
therewith. At all times Lessee shall be responsible for providing its
employees or agents on the Site with a safe place of employment;
(b) Accidents, injuries and illness requiring professional
medical attention, damage to Lessor's property and fires which occur
on the Property shall be orally reported to Lessor at the time of the
incident, with a written report following within forty-eight (48)
hours of the incident;
(c) When the possibility of injury to persons or damage to
property is ascertained, Lessee shall take immediate remedial action,
including the stoppage of work where necessary, to prevent such injury
or damage. If such possibility of injury or damage has been caused, or
is claimed to have been caused by Lessor or its employees, Lessee
shall give Lessor written notice thereof, and shall not resume work
until Lessor gives written permission to do so; and
(d) Lessee shall take particular care to avoid coming in contact
with, or causing damage to, any water, sewer, steam, gas, fuel, other
pipe lines, mains or service pipes, conduits, cables, wires, or
service connections, other private, utility, or governmental
facilities, and any hazardous condition or thing, whether they are
located upon, below, or above the ground surface. The costs of
repairing any such damage, if sustained, will be borne solely by
Lessee. Lessee shall take proper measures to determine the presence of
noxious, combustible, or explosive gases and to prevent all manner of
ignition in and around manholes, excavations, and other openings.
Lessee shall take all necessary and customary precautions to prevent
injury to persons or property from open manholes, excavations, ditches
created or caused by Lessee's activities on the Site, and from
materials or
<PAGE>
equipment left by Lessee on the Site, by placing signs and lights,
erecting barricades, or doing other things as prudence may require.
14. LESSEE'S COVENANTS. Lessee covenants, warrants and represents it has
-------------------
full authority to enter into, execute and perform this Lease.
In addition to Lessee's duties set forth herein, Lessee
further covenants that during the Lease Term:
(a) Damage. The installation, operation, modification,
-------
relocation and maintenance of its Facilities will in no way
damage the Tower, the Tower lighting system, Lessor's
Facilities, the Property, any other structure or accessories
thereto, any other lessee's equipment or facilities'. normal
wear and tear excepted, or interfere with the maintenance
thereof. If such damage, other than normal wear and tear
occurs, Lessee shall report such damage immediately (with
written notification within twenty-four (24) hours) to Lessor,
and shall be liable for the cost of repair for such damages;
(b) Radio Frequency Interference. The installation,
-----------------------------
operation, and maintenance of its Facilities will not
interfere with the radio frequency operation of Lessor's
Facilities or those of a Prior Lessee. In the event there is
such interference, Lessor and Lessee shall mutually appoint,
within two (2) business days of Lessee's receipt of notice of
such interference, an Interference Contractor to evaluate such
interference problems. If Lessor and Lessee cannot agree upon
an Interference Contractor within the two (2) business day
period, the Interference Contractor shall be Denny &
Associates, P.C., 1901 Pennsylvania Ave., N.W., Suite 402,
P.O. Box 19329 (20036-9329), Washington, D.C. 20006-3405. The
Interference Contractor shall determine the cause of such
interference within three (3) business days of being
appointed. In the event the Interference Contractor
determines, in its sole discretion, that Lessee's Facilities
are interfering with the operation of Lessor's or a Prior
Lessee's Facilities, Lessee shall (i) immediately take, at its
sole expense, all steps recommended by the Interference
Contractor necessary to eliminate the interference including,
if required, cutting off power to Lessee's objectionable
Facilities and (ii) pay the fees and expenses of the
Interference Contractor. If Lessee cannot immediately
eliminate the interference, Lessee will remove or cease
operation of its objectionable Facilities;
(c) Maintenance. Its Facilities will be maintained in a
------------
state of repair acceptable to Lessor in Lessor's reasonable
discretion;
(d) Identification. It will identify its Tower
---------------
Facilities with metal tags fastened securely to its bracket on
the Tower and to each transmission and receive cable line;
(e) Liens. Any lien for labor, materials or otherwise
------
will be discharged within thirty (30) days of filing of the
same; and
(f) Removal of Facilities. By the date of termination
----------------------
or expiration of the applicable Addendum it will remove its
Facilities, including permanent
<PAGE>
improvements such as foundations, footings, concrete, paving,
gravel, vegetation and utilities, and restore the Premises as
near as practicable to their original condition, unless
instructed otherwise in writing by Lessor; provided, however,
Lessee need not remove nor restore changes to the Premises not
caused by Lessee, its agents, employees, licensees or invitees,
or resulting from normal wear and tear. In the event Lessee has
not removed its Facilities by the time of expiration or
termination of the applicable Addendum: (i) Lessee shall pay rent
at the rate of two hundred percent (200%) the monthly rent in
effect on the date of such expiration or termination prorated to
the date Lessee's Facilities are removed and the Premises have
been restored to Lessor's reasonable satisfaction; and (ii)
Lessor shall have the right to remove and store Lessee's
Facilities, at Lessee's sole expense, and Lessee shall reimburse
Lessor for such expenses upon demand. If Lessor removes Lessee's
Facilities, Lessor shall not be responsible for any damage to
Lessee's Facilities caused during the removal and storage thereof
unless caused by Lessor's gross negligence.
15. LESSOR'S COVENANTS. Lessor covenants, warrants and represents
------------------
that it has full authority to enter into, execute and perform
this Lease. In addition to Lessor's duties set forth herein,
Lessor further covenants that during the Lease Term:
(a) Tower and Property Maintenance. It will adequately
--------------------------------
maintain the Tower, including, without limitation, the Tower's
structural integrity, lighting system and markings, and the
Property;
(b) Quiet Enjoyment. Upon Lessee's payment of rent and
-----------------
performance of its covenants, but subject to the terms of the
Master Lease and subject to any prior lien or encumbrance on the
Property, it will ensure Lessee's quiet use and enjoyment of the
Premises;
(c) Radio Frequency Interference. It will not permit a
------------------------------
Subsequent Lessee to interfere with the radio frequency operation
of Lessee's Facilities. In the event there is such interference,
Lessor shall ensure that the Subsequent Lessee immediately takes
all steps necessary to eliminate the interference including, if
required, cutting off power to the Subsequent Lessee's
objectionable Facilities. If the Subsequent Lessee cannot
immediately eliminate the interference, Lessor shall cause the
Subsequent Lessee to either remove or cease operation of its
Facilities.
Notwithstanding the foregoing, if the Subsequent Lessee is a
governmental entity, Lessor shall have the right to give the governmental entity
five (5) business days' notice prior to Lessor being required to take any
actions required under this Section. Lessor shall give such governmental entity
written notice of the interference within two (2) business days of Lessor's
receipt of the Interference Contractor's determination. Lessor's notice to the
governmental entity shall be deemed given on the day it is delivered by hand or
on the day it is deposited with an overnight courier or the United States mail;
and,
(d) Insurance. It will maintain in force during the Lease
Term a combined single limit policy of bodily injury and property
damage insurance,
<PAGE>
with a limit of not less than $5,000,000.00 insuring against
liability arising out of Lessor's use, occupancy, and maintenance
of the Tower, Property and its Facilities.
16. ENVIRONMENTAL MATTERS. Lessee represents and warrants that it
---------------------
will not cause or permit any solid or liquid waste which is
classified as toxic or hazardous under any federal, state or
local law or regulation in effect as of the Lease Commencement
Date, to be used, generated, stored or disposed of, in, on or
under, or transported to or from the Premises or to otherwise
contaminate the Premises, except where the use and storage of
such substances is in compliance with applicable law. Lessee
shall indemnify Lessor and its parent, subsidiary and affiliated
companies and their officers, agents and employees, and hold them
harmless from all claims, demands, causes, losses, damages and
expenses, including attorneys' fees, arising directly or
indirectly from a breach of this covenant.
Lessor represents and warrants that it will not cause or permit any
solid or liquid waste which is classified as toxic or hazardous under any
federal, state or local law or regulation in effect as of the Lease Commencement
Date, to be used, generated, stored, disposed of, in, on or under, or
transported to or from the Premises or to otherwise contaminate the Premises,
except where the use and storage of such substances is in compliance with
applicable law. Lessor further represents that there are no environmental
hazards caused by Lessor located on or under the Premises and agrees to hold
Lessee harmless from any and all environmental claims caused by Lessor asserted
against Lessee.
The covenants of this Section shall survive and be enforceable and
shall continue in full force and effect for the benefit of Lessor and its
subsequent transferees, successors and assigns and shall survive both the
expiration of the Multiple Site Lease Term or the expiration or earlier
termination of any applicable Addendum. In no event, however, shall Lessee be
liable to Lessor for lost profits, lost market share or other consequential
damages resulting from the breach of this Section.
17. NATIONAL ENVIRONMENTAL POLICY ACT COMPLIANCE. Lessor represents
--------------------------------------------
that the Tower and Property comply with the applicable provisions
of NEPA. Lessor acknowledges that it, and not the Lessee, shall
be responsible for compliance with applicable provisions of NEPA
with respect to the Tower and Property; provided, however, Lessee
shall be responsible for compliance with the applicable
provisions of NEPA with respect to Lessee's Facilities at the
Site. Prior to conducting any investigation, including, without
limitation, contacting any outside agency, or submitting any
filing relating to NEPA, Lessee shall obtain the written consent
of Lessor. Should Lessee be cited for noncompliance with NEPA and
fail to bring its Facilities into compliance in the time period
set forth in Section 25(a)(iii), Lessee shall be in default, and
all the rights and remedies set forth in Section 25(b) shall be
available to Lessor.
The covenants of this Section shall survive and be enforceable and
shall continue in full force and effect for the benefit of Lessor and its
subsequent transferees, successors and assigns and shall survive both the
expiration of the Multiple Site Lease Term or the expiration or earlier
termination of any applicable Addendum. In no event, however, shall Lessee be
liable to Lessor for lost profits, lost market share or other consequential
damages resulting from the breach of this Section.
<PAGE>
18. SUBORDINATION, ATTORNMENT, AND NONDISTURBANCF,. Lessee agrees
----------------------------------------------
that this Lease shall be subject and subordinate to any mortgages
or deeds of trust now or hereafter placed upon the Premises or
Property and to all modifications thereto, and to all present and
future advances made with respect to any such mortgage or deed of
trust. Lessee agrees to attorn to the mortgagee, trustee, or
beneficiary under any such mortgage or deed of trust, and to the
purchaser in a sale pursuant to the foreclosure thereof.
19. GOVERNMENTAL APPROVALS AND COMPLIANCE. During the Lease Term,
-------------------------------------
Lessor and Lessee agree to comply with all applicable laws,
regulations and zoning ordinances, including all environmental
laws and regulations, affecting the Tower, Premises and Property,
and the operation of their respective Facilities thereon, the
breach of which might result in a penalty to either party, or in
the event a Master Lease exists, a penalty to the Master Landlord
or forfeiture of the Master Landlord's title to the Property.
Lessor agrees to indemnify and hold Lessee harmless from any
liability for damages to any person or property, and liability
for fines imposed or corrective action ordered, caused by
Lessor's failure to comply with this Section. Lessee agrees to
indemnify and hold Lessor harmless from any liability for damages
to any person or property, and liability for fines imposed or
corrective action ordered, caused by Lessee's failure to comply
with this Section. In no event, however, shall either party be
liable to the other for lost profits, lost market share or other
consequential damages resulting from the breach of this Section.
20. ASSIGNMENT AND SUBLEASING.
(a) Lessor may, without Lessee's consent, assign or
otherwise transfer all or any portion of its right, title and
interest under this Multiple Site Lease (and all or any portion
of its right, title and interest in each individual Lease created
under the Multiple Site Lease) including, without limitation, the
right to receive the Initial Attachment Fee(s), Base Rent(s) (as
adjusted) and all other amounts payable hereunder . In the event
of such assignment or other transfer, the payment and other
rights of the assignee or other transferee with respect to the
Multiple Site Lease, and the Leases so assigned or otherwise
transferred shall not be subject to any claim, defense, set-off,
counterclaim or right of recoupment which Lessee may have against
Lessor. Lessor shall give Lessee notice of such assignment or
transfer, and thereafter Lessee shall pay all amounts due
hereunder, without deduction, as such assignee or other
transferee may direct in writing. Following any such assignment
or transfer, the term "Lessor" shall be deemed to refer to
Lessor's assignee or other transferee, Lessor shall be released
from its obligations and duties of such assignment or other
transfer, and Lessee shall look only to such assignee or other
transferee for performance thereof. In connection with any
financing, Lessor or its assignee or other transferee may pledge,
hypothecate, grant a mortgage on, or a security interest in, this
Multiple Site Lease or any individual Lease.
(b) Lessee shall not sublet any Premises in whole or in
part. Lessee shall not assign or transfer this Multiple Site
Lease or any Lease or Addendum or any interest therein, without
the prior written consent of Lessor which shall
<PAGE>
not be unreasonably withheld, delayed or conditioned, and a
consent to an assignment shall not be deemed to be a consent to
any subsequent assignment. Notwithstanding the foregoing,
Lessor's consent shall not be required for Lessee to assign this
Multiple Site Lease or any Lease or any Addendum to any parent,
subsidiary or wholly-owned subsidiary of parent or to any
affiliate of Lessee in which Lessee has a greater than fifty
percent (50%) ownership interest or to any entity which succeeds
to substantially all of the assets, stock or business of Lessee
by sale, merger or consolidation provided that, in cases,
Lessee's assignee shall assume all of Lessee's obligations under
the Multiple Site Lease, any Lease or any Addendum, as
applicable.
21. NOTICES. All notices shall be in writing and shall be deemed
-------
validly given if delivered by hand, sent by overnight delivery
service, or sent by certified mail, return receipt requested to
the address set forth in the applicable Addendum (or to any other
address that the party to be notified may have designated to the
sender by like notice). Notice shall be deemed received upon
receipt when delivered by hand, the next day if sent by overnight
delivery service, or two (2) days after postmarking if sent by
mail.
22. OPERATING EXPENSES. Lessee shall fully and promptly pay for all
------------------
water, gas, heat, light, power, telephone service, and other
public utilities furnished to the Premises and used by Lessee
throughout the Lease Term, and for all other costs. and expenses
of every kind whatsoever in connection with Lessee's use,
operation, and maintenance of its Facilities and all activities
conducted on the Premises. Lessee shall supply its own back-up
power source.
23. TAXES. Lessee shall be responsible for the timely reporting and
-----
payment of any tax directly related to the ownership or operation
of Lessee's Facilities, and any sales or use taxes on any rents
paid by Lessee under this Lease. Lessee shall also pay Lessor for
any increase to Lessor's property taxes or Master Landlord's
property taxes assessed as a result of Lessee's Facilities. The
amount shall be deemed additional rent hereunder and shall be
paid within thirty (30) days of Lessee's receipt of documentation
indicating the amount due.
24. INDEMNITY.
----------
(a) Lessee agrees to defend, indemnify and hold Lessor
harness from any and all liability, loss, claims, damage, cost or
expense (including reasonable attorneys' fees) with respect to
any claims, including but not limited to claims for bodily injury
or wrongful death to any person (including employees of Lessee or
any of its agents or contractors), property damage, or otherwise,
made against Lessor or for any damages suffered by Lessor arising
out of Lessee's presence on the Site or claims, governmental
enforcement or regulatory actions arising out of any breaches of
any term of this Multiple Site Lease Agreement or any Addendum,
in proportion to the amount of contribution of any of its agents
or contractors, or anyone else acting on behalf of the Lessee to
the injury or damage which is the subject of the claim.
<PAGE>
(b) Lessee agrees to accept all responsibility and pay for
all loss which may result in any way from any conduct,
negligence, acts, or omissions of Lessee, any of its agents or
contractors, or anyone else acting on behalf of Lessee. This
includes responsibility for any loss or injury to any workman or
damages to any property on the Site or property encumbered by an
easement granted to Lessee herein.
(c) "Conduct, negligence, acts, or omissions" as used in the
preceding paragraphs shall include, but not be limited to,
conduct relating to taking necessary safety and other precautions
to protect persons and property from damage, injury or illness;
providing all workers with a safe place to work; and compliance
with all local, municipal, state and national laws, orders and
regulations. Nothing in this Section shall be construed as
imposing any obligation on Lessor to undertake any conduct or
activity with respect to Lessee's activities on the Site, except
as otherwise agreed herein.
(d) In the event Lessor seeks to obtain indemnification or
contribution from Lessee with respect to a certain action, suit
or proceeding, Lessee, through competent counsel reasonably
satisfactory to Lessor, shall assume the control and defense of
such action, suit, or proceeding; provided, however that Lessor
shall be entitled to participate in any such action, suit, or
proceeding with counsel of its own choice at its own expense. If
Lessee fails to assume the defense within reasonable time, Lessor
may assume such defense, and the reasonable attorneys' fees and
expenses so incurred will be covered by the indemnity obligation
provided herein. Notwithstanding anything in this Section to the
contrary, Lessee shall not, without the written consent of Lessor
(1) settle or compromise any claim, action, suit or proceeding,
or consent to the entry of any judgment which does not include as
an unconditional term thereof, the delivery by the claimant or
plaintiff to Lessor of a written release of Lessor's liability
with respect to any such claim, action, suit or proceeding; or
(2) settle or compromise any action, suit or proceeding in any
manner that may materially and adversely affect Lessor.
(e) The covenants of this Section shall survive and be
enforceable and shall continue in full force and effect for the
benefit of Lessor and its subsequent transferees, successors and
assigns and shall survive both the expiration of the Multiple
Site Lease Term or the expiration or earlier termination of any
applicable Addendum. In no event, however, shall Lessee be liable
to Lessor for lost profits, lost market share or other
consequential damages resulting from the breach of this Section.
25. DEFAULTS AND REMEDIES.
---------------------
(a) Lessee's Default. Lessee shall be in default under a
------------------
Lease with respect to a specific Addendum:
(i) Fifteen (15) days after the due date for the
payment of rent or other sums due under this Lease, if the
payment due is not received by Lessor within the fifteen
(15) day cure period; or
<PAGE>
(ii) Thirty (30) days after Lessee's receipt of written
notice from Lessor of any breach of this Lease by Lessee
other than the non-payment of rent or other sums, or
defaults addressed in Sections 25(a)(i), (iii) and (iv), if
the breach is not cured within the thirty (30) day cure
period; provided, however, if the breach cannot reasonably
be cured within thirty (30) days, Lessee shall not be deemed
to be in default under this Lease if Lessee commences to
cure the breach promptly after notice of breach and
thereafter diligently pursues such cure to completion; or
(iii) Three (3) days after Lessee's receipt of written
notice from Lessor of a breach of any provisions of Sections
14 or 16, if the breach is not cured within the three (3)
day cure period; provided, however, if the breach cannot
reasonably be cured within three (3) days, Lessee shall not
be deemed to be in default under this Lease if Lessee
commences to cure the breach promptly after notice of breach
and thereafter diligently pursues such cure to completion;
and, further provided, that the default and cure periods of
Sections 25(a)(iv) shall supersede this Section 25(a)(iii),
if applicable, in Lessor's sole and absolute discretion; or
(iv) Unless otherwise agreed in writing by the
authorized representatives of both parties, twenty-four (24)
hours after Lessee's receipt of written notice from Lessor
of a breach of Sections 14(a), 14(c), 17 or 19 when, in
Lessor's sole and absolute opinion, the breach creates a
safety hazard, if the breach is not cured within the twenty-
four (24) hour cure period as to the defaulted Lease(s).
(b) Lessor's Remedies. Upon default by Lessee, in addition
------------------
to all other remedies provided herein and at law or in equity,
Lessor may elect one or more of the following options:
(i) Cure Lessee's default and invoice Lessee for all
reasonable costs incurred; or
(ii) Terminate the applicable Addendum, remove all of
Lessee's Facilities from the Premises, without notice and
without being guilty or liable in any manner for trespass,
and store such Facilities at Lessee's expense, payable upon
demand from Lessor for a period of not more than thirty (30)
days' time after the date of notice of default and, at
expiration of such storage period, consider Lessee's
Facilities as abandoned property which may be sold by Lessor
and the proceeds therefrom applied to any outstanding
amounts owed to Lessor; or
(iii) Consider this Lease in full force and effect and
be entitled to collect the rent provided for hereunder
subject to Lessor's duty to mitigate.
In the event Lessor terminates an Addendum pursuant to this
subsection, Lessee shall not be entitled to a refund of any unaccrued rent paid
to Lessor prior to such termination.
<PAGE>
(c) Lessor's Default. Lessor shall be in default under this
------------------
Lease thirty (30) days after Lessor's receipt of written notice
from Lessee of any breach of this Lease by Lessor, if the breach
is not cured within the thirty (30) day cure period; provided,
however, if the breach cannot reasonably be cured within thirty
(30) days, Lessor shall not be deemed to be in default under this
Lease if Lessor commences to cure the breach promptly after
notice of breach and thereafter diligently pursues such cure to
completion.
(d) Lessee's Remedies. Upon default by Lessor, in addition
-------------------
to all other remedies provided herein and at law or in equity,
Lessee may terminate the applicable Addendum as of the date of
the default and recover from Lessor all prepaid, unaccrued rent
subject to Lessor's right of set-off.
(e) Effect of Termination . Except as otherwise provided
----------------------
herein, upon termination of this Lease pursuant to this Section,
the parties shall be released from all duties, obligations,
liabilities and responsibilities under this Lease except for
obligations to pay damages to the other party, if any, Lessee's
obligation to remove its Facilities as required herein, and in
the event of Lessor's default, Lessor's obligation to return to
Lessee any unaccrued rent paid to Lessor prior to termination,
subject to Lessor's right of set-off.
(f) Attorneys Fees. In the event either party initiates
----------------
proceedings relating to the enforcement or interpretation of this
Lease, the substantially prevailing party shall collect from the
other party the substantially prevailing party's reasonable costs
and expenses incurred in each proceeding, including attorneys'
fees and costs, the value of employees' time spent on such
proceedings, and expert and other witness costs and fees.
26. WAIVER. No course of dealing between the parties or any delay by
------
a party to exercise any right it may have under this Lease shall
operate as a waiver of any of the rights hereunder or of those
provided by law or equity; nor shall any waiver of any prior
default operate as the waiver of any subsequent default.
27. LESSEE'S RIGHT TO TERMINATE. Lessee may terminate an Addendum, at
----------------------------
its option, after giving not less than thirty (30) days' written
notice to Lessor, if:
(a) The approval of or issuance of a license or permit by
any agency, board, court, or other governmental authority
necessary for the construction and/or operation of Lessee's
Facilities as now or hereafter intended by Lessee cannot be
obtained, or is revoked through no fault of Lessee, or if Lessee
determines in its sole discretion that the cost of obtaining or
retaining any such permit or approval is unreasonable;
(b) Lessee determines that technical problems or radio
interference problems from other antennas on the Tower at the
Commencement Date or from nearby radio transmitting facilities,
which problems cannot reasonably be corrected, preclude Lessee
from using the Premises for its intended purpose;
<PAGE>
(c) Lessee determines it does not have acceptable and
legally enforceable means of ingress and egress to and from the
Premises;
(d) Utilities necessary for Lessee's use of the Premises
are not reasonably available;
(e) The Premises are damaged, destroyed, condemned or taken
by eminent domain, to an extent which prohibits or materially
interferes with Lessee's use of the Premises; or
(f) The relocation of Lessee's Facilities pursuant to
Section 10 is unacceptable to Lessee.
Except as otherwise provided herein, upon termination of this Lease
pursuant to this Section, the parties shall be released from all duties,
obligations, liabilities and responsibilities under this Lease except for
obligations to pay damages to the other party, if any, Lessee's obligation to
remove its Facilities as required herein, and in the event of Lessor's default,
Lessor's obligation to return to Lessee any unaccrued rent paid to Lessor prior
to termination, subject to Lessor's right of set-off.
28. CONDEMNATION. If the entire Premises are taken by the power of
------------
eminent domain, or if a partial taking of the Premises by the
power of eminent domain renders the Premises unsuitable for the
use contemplated herein, either party may terminate the
applicable Addendum, and any unaccrued rent paid to Lessor prior
to the effective date of the termination shall be returned to
Lessee. Except as otherwise provided herein, upon termination of
this Lease pursuant to this Section, the parties shall be
released from all duties, obligations, liabilities and
responsibilities under this Lease except for obligations to pay
damages to the other party, if any, Lessee's obligation to remove
its Facilities as required herein, and in the event of Lessor's
default, Lessor's obligation to return to Lessee any unaccrued
rent paid to Lessor prior to termination, subject to Lessor's
right of set-off.
29. SECURITY INTERESTS IN LESSEE'S PROPERTY.
---------------------------------------
(a) Subject to the Secured Party agreeing to the provisions
of this Section , Lessor covenants and agrees that, so long as
Lessee is not in default hereunder, Lessee may, upon at least
thirty (30) days prior written notice to Lessor, grant a security
interest to such Secured Party for the purpose of securing any
bona fide indebtedness in this Lease, the leasehold interest of
Lessee created hereby, and all of Lessee's right, title and
interest in and to its Facilities and any other equipment placed
on the Tower and Property, provided that no such security
interest shall impair or abridge the rights of Lessor as provided
herein. Lessor shall execute such consent to leasehold financing
as may be reasonably required by the Secured Party and approved
by Lessor, which approval shall not be unreasonably withheld,
delayed or conditioned. Lessor acknowledges that any lien it may
have against Lessee's Facilities located on the Tower and
Property shall be junior and subordinate to such financing.
<PAGE>
(b) In the event Lessee grants such a security interest,
Lessee shall notify Lessor of the name and address of the Secured
Party. Lessor agrees to notify the Secured Party of any default
by Lessee under this Lease on the same date that notice is
forwarded to the Lessee. Secured Party shall have the same right
to cure any default as Lessee during the same cure periods
granted to Lessee in herein. If a termination, disaffirmance or
rejection of this Lease pursuant to any laws (bankruptcy or
insolvency laws) by Lessee shall occur, or if Lessor shall
terminate this Lease for any reason, Lessor will give Secured
Party prompt written notice thereof. Lessor will then give
Secured Party the right to enter upon the Property for a thirty
(30) day period commencing on the date of the aforesaid notice
from Lessor for the sole purpose of removing Lessee's Facilities
subject, however, to the following conditions :
(i) Secured Party may not enter upon the Property
without giving Lessor at least ten (10) days prior written
notice thereof '. Lessor may, in its discretion, refuse the
Secured Party unescorted access to the Property and Tower;
(ii) Lessee's Facilities may not be removed by anyone
other than a qualified, licensed, bonded contractor approved
by Lessor in writing prior to the commencement of such
removal;
(iii) Secured Party shall provide Lessor with proper
proof of liability insurance (in an amount reasonably
acceptable to Lessor). From the applicable contractor and/or
Secured Party in connection with the removal of Lessee's
Facilities;
(iv) Lessee's Facilities shall be removed by Secured
Party's contractor in a commercially reasonable manner. Any
damage to the Tower and/or any equipment located thereon
resulting from or arising out of the removal of Lessee's
Facilities shall be immediately repaired at Secured Party's
expense by a contractor approved by Lessor; and
(v) Secured Party shall indemnify and hold Lessor
harmless from all claims (including attorneys' fees, costs
and expenses of defending any such claims) arising from the
acts or omissions of Secured Party and/or its agents,
employees, engineers, contractors, subcontractors, licensees
or invitees in connection with its entry onto the Property
and Tower in connection with the removal of Lessee's
Facilities therefrom.
Notwithstanding the above described right of Lessee to assign its
leasehold interest in this Lease and/or its Facilities to Secured Party, its
successors and assigns, Lessee expressly acknowledges and agrees that: (a) such
secured interest shall not be subsequently transferred by Secured Party to
another party by merger, consolidation, voluntary or involuntary transfer or
otherwise without Lessor's prior written consent; and (b) neither Secured Party
nor its successors and assigns, may assume Lessee's leasehold interest in this
Lease and/or operate Lessee's Facilities on the Property and Tower without
Lessor's prior written consent.
<PAGE>
30. MISCELLANEOUS.
--------------
(a) Binding on Successors. This Lease and all Addenda are
---------------------
binding on and will inure to the benefit of the heirs,
successors, executors, administrators and permitted assigns of
the parties.
(b) Governing Law. This Lease and the relationship of the
-------------
parties shall be governed by the laws of the state in which the
Premises are located.
(c) Entire Agreement. All of the representations and
----------------
obligations of the parties are contained herein, and no
modification, waiver or amendment of this Lease or of any of its
conditions or provisions shall be binding upon a party unless in
writing signed by both parties or duly authorized agents of the
parties empowered by written authority signed by the respective
party.
(d) Headings. The headings of sections and subsections are
--------
for convenient reference only and shall not be deemed to limit,
construe, affect, modify or after the meaning of such sections or
subsections.
(e) Time of Essence. Time is of the essence for Lessor's
---------------
and Lessee's obligations under this Lease
(f) Severability. If any section, subsection, term or
------------
provision of this Lease or the application thereof to any party
or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of the section, subsection, term or
provision of this Lease or the application of same to parties or
circumstances other than those to which it was held invalid or
unenforceable, shall not be affected thereby and each remaining
section, subsection, term or provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
(g) Further Assurances. Each of the parties agree to do
------------------
such further acts and things and to execute and deliver such
additional agreements and instruments as the other may reasonably
require to consummate, evidence, confirm or carry out the
intention of this Lease.
(h) Right to Register or Record. Upon the request and at
---------------------------
the expense of Lessee, Lessor agrees to promptly execute, have
notarized and deliver to Lessee a Memorandum of Lease prepared by
Lessee in recordable or registerable form setting forth the
general terms of this Lease.
(i) Interpretation. Each party to this Lease and its
--------------
counsel have reviewed this Lease. The normal rule of construction
to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of
this Lease or of any amendments or exhibits hereto.
(j) Brokerage. Each party shall indemnify and hold the
---------
other party harmless against all claims by any real estate agent
or broker claiming a commission through or as a result of any
action by the indemnifying party. The indemnification obligations
of each party contained in this subsection shall survive the
termination or expiration of this Lease.
<PAGE>
(k) Deed of Lease. In the event the jurisdiction in which
--------------
the Premises are located , requires that the interests conveyed
herein be conveyed by deed, this Lease shall be deemed to be a
Lease Agreement and Deed of Lease, and the interests herein shall
be deemed to be conveyed by such Deed of Lease.
(l) Confidential. The parties agree the terms of this Lease
------------
are confidential, and except for the general terms set forth in a
Memorandum of Lease Agreement, Lessee agrees not to disclose any
terms or conditions of this Lease to any third party except its
attorneys and accountants, or as otherwise required by law.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
day and year first above written.
LESSOR: LESSEE:
360 COMMUNICATIONS COMPANY TRITON PCS COMPANY L.L.C.
By TRITON MANAGEMENT COMPANY
By: By:
Title: Title:
Date: Date:
LESSOR NOTARY
STATE/COMMONWEALTH OF
CITY/COUNTY OF ______________, to wit:
Acknowledged before me, a notary public in and for the jurisdiction
aforesaid, this ___________ day of ________________, by ___________________.
My commission expires:
LESSEE NOTARY
STATE/COMMONWEALTH OF
CITY/COUNTY OF _________________, to wit:
<PAGE>
EXHIBIT A
ADDENDUM TO
360" COMMUNICATIONS COMPANY
AND
MULTIPLE SITE TOWER ATTACHMENT LEASE AGREEMENT
SITE NAME: (Site)
LOCATION:
SITE NUMBER:
This Addendum (the Addendum) to the Multiple Site Tower Attachment Lease
Agreement between the parties dated as of , (Multiple Site Lease) is
made as of the day of , 19 , between
(Lessor) and
(Lessee).
In consideration of the mutual promises, the parties agree as
follows:
1. DEFINITIONS. Except as otherwise defined herein,
-----------
capitalized terms are DEFINED as set forth in the Multiple Site
Lease.
2. PURPOSE. This Addendum supplements and incorporates by
-------
reference the Multiple Site Lease, and makes the terms of the
Multiple Site Lease applicable to the Site.
3. PROPERTY AND TOWER.
------------------
(a) The Property is a x parcel of land located at
(b) The Tower is a tower located on the Property.
4. PREMISES. The Premises are described as follows:
(a) The Tower Space consisting of space on the Tower at the
to level; [and]
[INSERT IF LESSEE WILL LEASE GROUND SPACE FROM LESSOR]
(b) The Ground Space consisting of a x parcel of land near
the base of the Tower.
<PAGE>
A more particular description of the Premises and the easements granted to
Lessee in the Multiple Site Lease is contained on the legal description and
site plan prepared by and dated attached as a Schedule1.
The As-Built Survey to be prepared and delivered to Lessor pursuant to the
Multiple Site Lease shall become Schedule 2.
5. LESSEE'S FACILITIES. The Premises shall be used by Lessee
-------------------
solely for the installation, operation, maintenance and replacement of
Lessee's Facilities.
6. TERM
----
(a) Execution Date. The Execution Date of this Addendum is the date
----------------
upon which this Addendum has been duly executed by Lessor or Lessee
whichever is the later to so execute this Addendum.
(b) Lease Commencement Date. The Lease Commencement Date for this
-----------------------
Site shall be
(c) Initial Term. The Initial Term of this Lease shall begin on the
--------------
Lease Commencement Date and shall end at midnight on the earlier
of . or the date of expiration or earlier termination of the
Master Lease, if any.
(d) Renewal Terms. Lessee shall have the option to renew this Lease
-------------
for
(__) additional terms of . (..) years each, on the same terms and
conditions set forth herein and in the Lease. Each additional term shall be
referred to as a "Renewal Term."
7. INITIAL ATTACHMENT FEE AND BASE RENT.
------------------------------------
(a) Initial Attachment Fee. On the Lease Commencement Date, Lessee
------------------------
shall pay to Lessor a non-refundable initial attachment fee of
[$_____________] dollars.
(b) Base Rent During the Initial Term, Lessee shall pay Base Rent in
---------
the amount of Dollars [$____________] per year, paid annually in
advance to Lessor at Lessor's notice address or such other place
Lessor designates to Lessee in writing, beginning on the Lease
Commencement Date and on each anniversary thereafter.
(c) Rent Adjustments. Beginning in the first year of each Renewal
------------------
Term, the then current Base Rent shall be adjusted as set forth in the
Multiple Site Lease.
(d) Payment Address. Except as otherwise specified by Lessor, all
-----------------
payments of Base Rent and/or other remittances shall be sent to:
360' Communications Company
Attn: Revenue Department
Box 60273
Charlotte, NC 28260-0273
<PAGE>
8. MASTER LEASE. A copy of the Master Lease, if any, is attached
-------------
hereto as Schedule 4 (subject to withholding and redaction as required
by confidentiality and nondisclosure provisions of the Master Lease).
If the Master Lease does not contain a plat and legal description of
the Property, a separate plat and legal description for the Property
shall also be attached as Schedule 4. In the event Lessor owns the
Property, Lessor's legal description of the Property shall be attached
as Schedule 4. The consent of Master Landlord to this Addendum, if
required, shall be attached as Schedule 5.
9. SITE COORDINATOR. Each party agrees to designate a site
------------------
coordinator for Site who will have authority to deal with his or her
counterpart on matters within the scope of this Addendum. The identity
and contact information for such site coordinator designated by Lessor
------
is as follows:
Name: __________________________
Office Phone: __________________________
Portable Phone: __________________________
The identity and contact information for the site coordinator
designated by Lessee is as follows:
-------
Name: __________________________
Office Phone: __________________________
Portable Phone: __________________________
Lessee agrees to keep Lessor informed of the progress of construction
at this Site.
(A) NOTICES. Notices given pursuant to the Multiple Site Lease shall
---------
be delivered to Lessor and Lessee at the following addresses:
Lessor: __________________________
__________________________
__________________________
__________________________
Attn:_____________________
__________________________
Phone:____________________
with a copy to Lessor's counsel:
_____________________
_____________________
_____________________
Lessee:
_____________________
_____________________
_____________________
Attn:
---------------------
Phone:
---------------------
<PAGE>
with a copy to Lessee's counsel:
_____________________
_____________________
_____________________
_____________________
_____________________
IN WITNESS WHEREOF, each party has caused this Addendum to be executed
on its behalf by its duly authorized officer.
LESSOR: LESSEE:
_________________________ _________________________
By: By:
Its: Its:
Commonwealth/ State of
CITY/COUNTY OF
My Commission expires:
Notary Public
Acknowledged before me, a notary public in and for the jurisdiction
aforesaid, this _______________ day of , __________, _________ by __________,
as __________ of ________.
COMMONWEALTH STATE OF
CITY/COUNTY OF
Acknowledged before me, a notary public in and for the jurisdiction
aforesaid, this of
My Commission expires:
Notary Public
Its:
Date:
<PAGE>
SCHEDULE 1
----------
Legal Description and
Site Plan of Premises
<PAGE>
SCHEDULE 2
----------
As-Built Survey
<PAGE>
SCHEDULE 3
----------
Lessee's Facilities
Number, manufacturer and type of antennas:
Weight and length of antennas:
Transmission line manufacturer, type, diameter and length:
Height of antennas on Tower:
Tower leg:
Direction of radiowave transmission:
Rated Power:
Transmitting/Receiving frequencies:
Equipment building manufacturer and size:
Equipment in building manufacturer and type:
Generator manufacturer and size:
Building ground ring:
Waveguide bridge length:
Electric and telephone service lines and conduit: As needed
---------
<PAGE>
SCHEDULE 4
----------
Master Lease or Source Deed of Property and Plat of
Property, whichever applies
<PAGE>
SCHEDULE 5
----------
Landlord's Consent
