MASTER SITE DEVELOPMENT\/LEASE AGREEMENT AS AMENDED<\/p>\n 1
\n EXHIBIT 10.15<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT<\/p>\n
THIS AGREEMENT, made this day of August, 1998 (the “Effective Date”),
\nbetween ALAMOSA PCS, LLC, a Texas limited liability company, with its principal
\noffices located at 6688 N. Central Expressway, Suite 850, Dallas, Texas,
\n(“Customer”) and Speciality Capital Services, Inc., a Nevada corporation with
\nits principal offices located as 12001 Hwy. 14 North, Cedar Crest, New Mexico,
\n87008 (“Specialty”).<\/p>\n
W I T N E S S E T H:<\/p>\n
WHEREAS, Specialty provides site acquisition, zoning, construction,
\nsite development, site maintenance and site leasing services for wireless
\ncommunications facilities located in the United States of America;<\/p>\n
WHEREAS, Customer desires to lease space on certain wireless
\ncommunications towers or platforms to be constructed and owned by Specialty
\n(“Leased Sites”); and<\/p>\n
WHEREAS, Specialty and Customer desire to set forth terms and
\nconditions upon which Specialty will construct and Customer will lease from
\nSpeciality Leased Sites located in the areas identified in Exhibit “A” hereto.<\/p>\n
NOW THEREFORE, in consideration of the premises and the mutual
\ncovenants and obligations hereinafter set forth, the parties agree as follows:<\/p>\n
1. Leased Sites.<\/p>\n
1.1 Leased Site Schedules. This Agreement and each Leased Site Schedule
\nin substantially the form attached hereto as Exhibit “B” (“Leased Site
\nSchedule”) executed in connection with this Agreement contain the basic terms
\nand conditions upon which each Leased Site will be constructed and leased by
\nSpecialty to Customer. The location of each Leased Site is individually referred
\nto in this Agreement as a “Site.” Each Leased Site Schedule will describe the
\nspecific location, description and the size of the Site to which it pertains and
\ncontain a precise description of the wireless communications platform or tower
\nto be constructed by Speciality on the Site. Customer will indicate its interest
\nin obtaining a Leased Site Schedule for a particular Site by completing and
\nforwarding to Specialty either search rings for a particular area or a written
\nnotice identifying particular Sites for implementation pursuant to this
\nAgreement. Upon receipt of search rings, Specialty will, at its sole expense,
\npromptly inventory and review all existing elevated structures within each
\nsearch ring that are susceptible of locating a Site, including existing roof top
\nsites, water tank sites, towers and other elevated structures. The purpose of
\nthis inventory and review process is to identify sites on which Customer’s
\nwireless transmission facilities can be located or co-located with other
\ncarriers thereby minimizing the need for construction of new towers. Upon
\ncompletion of this inventory and review, Speciality and Customer will analyze
\nthe results and review Customer’s search rings in order to (i) identify the
\nspecific roof top sites, water tank sites, existing towers and other existing
\nelevated structures to be utilized by Customer and (ii) determine the number and<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 1<\/p>\n
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location of new towers to be constructed. Customer and Specialty understand and
\nagree that so long as Customer’s time-to-market, and RF engineering criteria are
\nsatisfied, Customer’s wireless transmission facilities will be co-located on
\nexisting structures within the applicable search rings whenever possible. After
\nCustomer and Specialty determine that a new tower will be constructed within a
\ngiven search ring or location, Specialty will locate and identify to Customer a
\nproposed Site for construction of the new tower. Upon identification of each
\nproposed Site for construction of a new tower, Customer will have three (3)
\nbusiness days in which to notify Specialty whether the proposed Site is
\nacceptable to Customer. If Customer deems the Site acceptable or if Customer
\nfails to notify Specialty that it deems the Site unacceptable within three (3)
\nbusiness days after the proposed Site is identified to Customer, then Customer
\nwill forward an executed Leased Site Schedule to Specialty whereupon, Specialty
\nwill, at its sole expense, promptly complete the site acquisition, lease
\nprocurement and zoning (collectively, “Site Acquisition and Zoning Services”) of
\nthe Site and construct the Leased Site in accordance with the time frames and
\nspecifications set forth in Exhibit 2 to the Lease Site Schedule. Upon
\ncompletion of the Lease Site, Specialty will lease the Leased Site to Customer
\npursuant to this Agreement and the applicable Lease Site Schedule. To the extent
\nrequested by Customer, Specialty will use its best efforts to utilize existing
\nbulk siting agreements or other favorable siting arrangements available to
\nCustomer, coordinate all zoning and permitting related activities with Customer
\nand allow Customer to participate in such zoning and permitting processes to
\nensure consistency with Customer zoning and permitting practices and procedures.
\nSpecialty intends to utilize Specialty personnel and existing subcontractor
\nrelationships to perform Site Acquisition and Zoning Services. However, if
\nrequested by Customer, Specialty will agree to utilize or work with individuals
\nand\/or subcontractors designated by Customer (assuming such individuals and\/or
\nsubcontractors are willing to work with Specialty and meet Specialty’s pricing
\nobjectives to Customer). If Customer identifies one or more specific Sites to
\nSpecialty for which Site Acquisition and Zoning Services already have been
\ncompleted, then Customer will forward an executed Leased Site Schedule to
\nSpecialty describing the Site, whereupon, Specialty will, at its sole expense,
\npromptly enter into or accept the assignment of the underlying site lease or
\nsublease, construct the Leased Site in accordance with the time frames and
\nspecifications set forth in Exhibit 2 to the Leased Site Schedule, and, upon
\ncompletion of the Leased Site, lease the Leased Site to Customer as described in
\nthe Leased Site Schedule, and, upon completion of the Leased Site, lease the
\nLeased Site to Customer as described in the Leased Site Schedule. Each Leased
\nSite Schedule will become a part of this Agreement only upon its execution and
\ndelivery by both Customer and Specialty. The parties acknowledge and agree that
\nthe specifications for each Leased Site will be sufficient to facilitate
\nco-location of additional tenants on the Leased Site following completion.<\/p>\n
1.2 Improvement of Existing Sites. Where an existing communications
\ntower or platform (including existing roof top sites, water tank sites, towers
\nand other elevated structures, owned or otherwise controlled by a party other
\nthan Specialty) in any of the areas identified in Exhibit “A” is selected by
\nCustomer for the co-location of a wireless transmission facility, Customer
\nagrees to engage Specialty to perform any necessary Site Acquisition and Zoning
\nServices and to construct any necessary improvements to implement the planned
\nfacility, provided Specialty’s fees for performing such services are competitive
\nwith those available from contractors (“qualified competing contractors”) of
\nsimilar expertise, quality and reputation to Specialty. Specialty will provide
\nsuch services at competitive prices that are not higher than the average prices
\navailable in the given market for like services from qualified competing
\ncontractors, provided, however, that if Customer believes<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 2<\/p>\n
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that the pricing offered by Specialty is not competitive, then Customer will
\nhave the right to obtain bids from qualified competing contractors for the same
\nservices (including, without limitation, construction management services) as
\nthose proposed to be provided by Specialty. If Customer obtains a pricing bid
\nfor the required services from a qualified competing contractor that is other
\nthan Specialty’s proposed pricing, then Customer shall notify Specialty and
\nSpecialty shall have the right of first refusal, exercisable by notifying
\nCustomer within seven (7) days following receipt of such notice from Customer,
\nto meet the bid upon the same terms and conditions as set forth in the bid. If
\nSpecialty declines to meet the bid, then Customer will have the right to hire
\nthe qualified competing contractor to perform the work with respect to that site
\n(subject to the qualified competing contractor’s provision of certificates of
\ninsurance consistent with the provisions of this Agreement).<\/p>\n
1.3 Use of Additional Sites. If during the initial term of this
\nAgreement Customer desires to install additional wireless transmission
\nfacilities in any of the areas identified in Exhibit “A,” then the following
\nprovisions shall apply:<\/p>\n
1.3.1 If (i) Specialty owns, controls or manages an
\n existing roof top site, water tank site, tower or
\n other elevated structure within any of the areas
\n identified in Exhibit “A” that meets Customer’s
\n predetermined coverage requirements (for purposes of
\n this Agreement, Customer’s predetermined coverage
\n requirement shall include but not be limited to
\n location, height above ground level, antenna
\n configuration and radiation center) for such
\n additional wireless transmission facilities, (ii) the
\n required antenna space can be made available to
\n Customer within a mutually agreed upon period of time
\n that meets Customer’s implementation requirements for
\n the additional wireless transmission facilities,
\n (iii) the placement of Customer’s antennas, coaxial
\n cabling and other equipment on the subject structure
\n and the location of Customer’s base station equipment
\n at the subject location will not require material
\n structural modification of the subject structure or
\n interfere with the contractual or other rights or
\n existing tenants at the location, then Customer may
\n request a Leased Site Schedule for the subject
\n structure and lease the required antenna space on the
\n subject structure pursuant to this Agreement for a
\n monthly lease price that does not exceed the
\n applicable monthly lease price set forth on Exhibit
\n “C.” If Customer requests a Leased Site Schedule
\n pursuant to this Section 1.3.1, then Specialty shall
\n have ten (10) days from receiving notice of
\n Customer’s request for a Leased Site Schedule to
\n notify Customer whether the subject structure is
\n available for Customer’s purposes. In the event
\n Specialty fails to respond within said ten (10) days,
\n the subject structure will be deemed unavailable. In
\n connection with Customer’s assessment of any
\n additional Sites, Specialty shall provide, at no
\n charge to Customer (i) for a period of up to
\n twenty-one (21) days, access to the subject structure
\n and necessary documentation for the purpose of
\n determining the suitability of the subject structure
\n (Customer shall supply, at Customer’s expense, all
\n equipment and materials needed to conduct such tests)
\n and (ii) a copy of the Prime Lease (as hereinafter
\n defined), if any, applicable to the Site and such
\n other documentation applicable to the Site as
\n Customer shall reasonably<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 3<\/p>\n
4<\/p>\n
request (subject to any restrictions regarding
\n confidentiality or disclosure as may be contained in
\n or otherwise applicable to such documents). Specialty
\n shall supply at Specialty’s expense, the labor to
\n install one (1) antenna and one (1) coaxial cable to
\n conduct a suitability test at each Site. In order to
\n facilitate the parties compliance with the provisions
\n of this Section 1.3, Specialty agrees to provide
\n Customer with a list of all roof top sites, water
\n tank sites, towers or other elevated structures
\n within any of the areas identified in Exhibit “A”
\n that are owned, controlled or managed by Specialty
\n and to update this list from time to time as
\n necessary during the initial term of this Agreement.<\/p>\n
1.3.2 If (i) Specialty does not own, control or manage an
\n existing roof top site, water tank site, tower or
\n other elevated structure within any of the areas
\n identified in Exhibit “A” that meets Customer’s
\n predetermined coverage requirements for such
\n additional wireless transmission facilities, (ii) no
\n other existing roof top site, water tank site, tower
\n or other elevated structure within any of the areas
\n identified in Exhibit “A” meets Customer’s
\n predetermined coverage requirements for such
\n additional wireless transmission facilities, (iii)
\n Customer determines to obtain a new tower to locate
\n such additional wireless transmission facilities, and
\n (iv) Specialty is willing to construct the new tower
\n within a mutually agreed upon time period that meets
\n Customer’s construction schedule and lease the
\n required antenna space to Customer for a monthly
\n lease price that does not exceed the applicable
\n monthly lease price set forth on Exhibit “C,” then
\n Customer shall request a Leased Site Schedule for the
\n new tower and lease the required antenna space on the
\n new tower pursuant to this Agreement.<\/p>\n
2. Customer’s Use of the Leased Site<\/p>\n
Customer may use the Leased Site only for the installation, operation
\nand maintenance of unmanned radio communications equipment consistent with the
\nterms of this Agreement and the applicable Leased Site Schedule. Customer must,
\nat Customer’s sole expense, comply with all laws, orders, ordinances,
\nregulations and directives of applicable federal, state, county and municipal
\nauthorities or regulatory agencies including, without limitation, the Federal
\nCommunications Commission (“FCC”), that are applicable to the installation or
\noperation of Customer’s equipment at the Site. Customer must operate its
\nequipment in a manner that does not interfere with the operation of the
\ncommunications facility or any prior existing users of the communications
\nfacility. Specialty agrees to cooperate with Customer, at Customer’s expense, in
\nexecuting such documents or applications required in order for Customer to
\nobtain such licenses, permits or other governmental approval needed for
\nCustomer’s permitted use of the Site.<\/p>\n
Notwithstanding the foregoing, Specialty shall obtain, at Specialty’s
\nexpense, any municipal permits necessary for the initial installation of the
\nLeased Site. Customer will maintain its equipment at the Site in a reasonable
\ncondition and in a manner that will not interfere with other uses of the Site.<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 4<\/p>\n
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3. Term.<\/p>\n
3.1 Term of Agreement. The initial term of this Agreement shall be five
\n(5) years commencing on the Effective Date. The term of this Agreement will be
\nautomatically renewed for three (3) additional terms of five (5) years each
\nunless Customer provides Specialty with notice of intention not to renew at last
\nsix (6) months prior to the expiration of the then current term.<\/p>\n
3.2 Term of Leased Site Schedule. Each Site leased by Specialty to
\nCustomer pursuant to a Leased Site Schedule shall be leased for an initial term
\nof five (5) years with the commencement date (“Commencement Date”) of the term
\nof each particular Leased Site Schedule being as of the first (1st) day of the
\nearlier of (i) the month following the completion of installation of Customer’s
\nantennas and coaxial at the Site or (ii) if the Leased Site is a newly
\nconstructed site constructed for Customer and the Leased Site is completed
\nwithin the time frame for completion set forth in the applicable Leased Site
\nSchedule, the second month following completion f the Leased Site. The term of
\neach particular Leased Site Schedule shall automatically be extended for up to
\nthree (3) additional five (5) year terms unless Customer terminates it at the
\nend of the then current term by giving Specialty written notice of the intent to
\nterminate at least six (6) months prior to the end of the then current term;
\nprovided, however, that the term of all Leased Site Schedules shall immediately
\nterminate upon the termination or expiration of this Agreement. If Specialty’s
\nrights in any Site are derived from a prime lease or other agreement with a
\nthird party (a “Prime Lease”), a copy of such Prime Lease will be attached as
\nExhibit 4 to the applicable Leased Site Schedule. Notwithstanding the foregoing,
\nif Specialty’s rights in any Site are derived from a Prime Lease and such Prime
\nLease has a shorter term or extension terms than those provided for under this
\nparagraph, then Customer’s right to extend the Leased Site Schedule applicable
\nto such Site shall only be for as long as Specialty retains its interest in the
\nsame applicable property pursuant to such Prime Lease.<\/p>\n
4. Rent<\/p>\n
4.1 Rental Payments. The annual rental shall be paid in equal
\ninstallments beginning on the Commencement Date and continuing on the first day
\nof each and every month thereafter. Payments shall be made to Speciality, or
\nsuch other person, firm or place as Specialty may, from time to time, designate
\nin writing at least thirty (30) days in advance of any rental payment date. The
\namount of the annual rental shall be that amount designated on the applicable
\nLeased Site Schedule which amount shall be adjusted on each Adjustment Date
\naccording to the formula set forth in Section 4.2. The rental amounts designated
\non each Leased Site Schedule shall be calculated according to the schedule set
\nforth in Exhibit “C.”<\/p>\n
4.2 Rental Payment Adjustment. The annual rental payment identified in
\nthis Agreement shall be adjusted (collectively “Adjusted Fee”) on the first
\nanniversary of the Effective Date and every annual anniversary thereafter
\n(“Adjustment Date”) by the following formula:<\/p>\n
Adjusted Fee = Base Fee + ((IR-IL)YIL) + Base Fee<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 5<\/p>\n
6<\/p>\n
“Base Fee” shall mean the applicable annual rental or other fees
\nidentified in this Agreement which, for the purposes of the formula identified
\nabove, shall remain the same as set forth in this Agreement as of the Effective
\ndate.<\/p>\n
IR is the Consumer Price Index for the month which is three (3) months
\n immediately preceding the month in which the Adjustment Date occurs.<\/p>\n
IL is the Consumer Price Index for the month which is three (3) months
\n immediately preceding the month of the Effective Date.<\/p>\n
“Consumer Price Index” shall mean the Consumer Price Index published by
\nthe Bureau of Labor Statistics of the United States Department of Labor for
\nUrban Wage Earners and Clerical Workers for All Items (CPI-W) – U.S. City
\naverage or shall mean the successor thereto. In the event the Consumer Price
\nIndex is converted to a different standard reference base or otherwise revised,
\nthe determination of Adjusted Fee for the Adjustment Date shall be made with the
\nuse of such conversion factor, formula or table for converting the Consumer
\nPrice Index as may be published by the Bureau of Labor Statistics, or if the
\nBureau should fail to publish the same, then with the use of such conversion
\nfactor, formula or table for converting the Consumer Price Index as may be
\npublished by Prentice Hall, Inc., or any other nationally recognized publisher
\nor similar statistical information. If the Consumer Price Index ceases to be
\npublished and there is no successor thereto, such other index as Customer and
\nSpecialty may agree upon shall be substituted for the Consumer Price Index, and
\nif they are unable to agree, then such matter shall be submitted to arbitration
\nin accordance with the terms of Section 18.<\/p>\n
4.3 Additional Rent. Customer shall pay as additional rent any taxes or
\nother assessments, including but limited to real estate or personal property
\ntaxes, that are (i) levied against the Leased Sites or the improvements thereon
\nand (ii) attributable to the improvements, or portions thereof, that are
\nconstructed or installed by or on behalf of Customer. Specialty will provide
\nreasonable documentation of real estate or personal property taxes attributable
\nto the improvements, or portions thereof, that are constructed or installed by
\nor on behalf of Customer.<\/p>\n
4.4 Interest. Any fee or other payment not paid within ten (10)
\nbusiness days of when due shall bear interest until paid at the lesser of:<\/p>\n
4.4.1 The rate of ten percent (10%) per annum; or<\/p>\n
4.4.2 The maximum rate allowed under applicable law.<\/p>\n
5. Relationship of the Parties. Nothing contained in this Agreement shall be
\ndeemed to create any partnership or joint venture relationship between the
\nparties.<\/p>\n
6. Access<\/p>\n
Customer shall have free access during the term of a Leased Site
\nSchedule to the applicable Site twenty-four (24) hours per day, seven (7) days
\nper week. Customer acknowledges that with<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 6<\/p>\n
7<\/p>\n
respect to Sites where Specialty’s rights are derived from a Prime Lease,
\nnotwithstanding this Section 6, Customer’s access rights to the Site are subject
\nto any restrictions on access to the Site as are set forth in such Prime Lease.
\nIn the event Customer or its agents or contractors perform any work at a Site,
\nSpecialty will be guaranteed by Customer that Specialty will not experience any
\ndown time in operation or any other operations at the communications facility
\nand Customer will indemnify and reimburse Specialty for any and all claims of
\nliability or losses by any third party resulting from any such down time in
\noperation and any actual damages or losses sustained by Specialty resulting from
\nany such down time in operation directly attributable to Customer’s or its
\nagent’s or contractor’s work at a Site. Specialty shall furnish Customer with
\nnecessary devices for the purpose of ingress and egress to the said Site and
\ncommunications facility. It is agreed, however, that only authorized engineers,
\nemployees or properly authorized contractors of Customer or persons under their
\ndirect supervision will be permitted to enter said Site. Customer will retain
\nownership of all buildings, equipment and appurtenances Customer installs at any
\nSite; provided; however, that the removal of said equipment will not adversely
\naffect the integrity of any structure.<\/p>\n
7. Improvements and Construction of Leased Sites<\/p>\n
7.1 Approved Communications Facility. Customer has the right, at
\nCustomer’s sole cost and expense, to erect, maintain, replace and operate at the
\nSite, only that communications facility specified on the Leased Site Schedule.
\nIt is understood that Customer shall have the right at each and every Site,
\nsubject to compliance with the terms of this Agreement and particularly those
\nset forth in this Section, to replace the equipment described in a Leased Site
\nschedule with similar and comparable equipment so long as: (a) there is no
\ngreater wind loading, structural loading, size, weight or height; and (b) the
\nequipment operates at the frequency or range of frequencies designated in the
\napplicable Leased Site Schedule, or at the frequency or range of frequencies
\nidentified in Customer’s current licenses or successor licenses thereto, for the
\ntransmission of wireless communications signals of that given Site. It is
\nunderstood that any such replacement equipment must be frequency compatible with
\nthen existing uses of the Site and that any change in frequency shall not
\nadversely impact the business of Specialty, as determined within Specialty’s
\nsole discretion. Prior to commencing any Installation or material alteration of
\na communications facility and prior to accessing the communications tower
\nstructure for any reason whatsoever, Customer must obtain Specialty’s approval
\nof:<\/p>\n
7.1.1 Customer’s plans for Installation or alteration work;
\n and<\/p>\n
7.1.2 The identity of the contractor performing the
\n installation or material alteration or in any way
\n accessing the tower structure itself.<\/p>\n
Specialty’s approval must not be unreasonably withheld or delayed. All of
\nCustomer’s installation and alteration work must be performed:<\/p>\n
7.1.3 At Customer’s sole cost and expense;<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 7<\/p>\n
8<\/p>\n
7.1.4 In a good and workmanlike manner, using the care and
\n skill ordinarily used by members of the profession
\n practicing under similar conditions at the same time
\n and in the same geographic area;<\/p>\n
7.1.5 In accordance with applicable building codes; and<\/p>\n
7.1.6 Must not adversely affect the structural integrity or
\n maintenance of the Leased Site or any structure on or
\n use of the Leased Site.<\/p>\n
Said erection, maintenance, replacement and operation will in no way
\ndamage or interface with any existing tenant’s use of or existing operations at
\nthe communications facility. If damage or interference is caused by Customer and
\nCustomer fails to make such repairs immediately after notice by Specialty,
\nSpecialty may make the repairs and the reasonable costs thereof shall be payable
\nto Specialty by Customer on demand. If Customer does not make payment to
\nSpecialty within thirty (30) days after such demand, Specialty shall have the
\nright to immediately terminate the applicable Leased Site Schedule. No materials
\nmay be used in the installation of the antennas or transmission lines that will
\ncause corrosion or rust or deterioration of the tower structure or its
\nappurtenances.<\/p>\n
After completion of the initial construction by Specialty and
\nacceptance of a Leased Site by Customer, any structural alterations to a
\nstructure on the Leased Site must be designed, at Customer’s sole cost and
\nexpense, by a structural engineer licensed in the jurisdiction where the Site is
\nlocated. Notwithstanding the foregoing, for any structural alterations on a
\ntower, such structural engineer must either be approved by the lower
\nmanufacturer or by Specialty. For structural alterations requiring a municipal
\npermit, the structural engineer must be satisfactory to the local municipality.<\/p>\n
Following the initial installation of Customer’s equipment at a Site,
\nany Installation, material alteration or removal of such equipment by Customer
\nand any activities whatsoever requiring access to the tower structure at the
\nSite, must be performed by Specialty or by a contractor reasonably acceptable to
\nSpecialty (which acceptance may specifically include a requirement that all such
\ncontractors provide to Specialty, at least three (3) business days prior to
\nperforming any such installation, material alteration or removal, certificates
\nof insurance consistent with the provisions of this Agreement). Specialty’s
\nconsent thereto shall not be unreasonably withheld or delayed. In the event that
\nSpecialty does not perform such installation, material alteration or removal,
\nCustomer must engage Specialty’s project manager to monitor, inspect and approve
\nall activities performed by or on behalf of Customer at the initial rate of
\n$70.00 per hour not to exceed a total of $2,000.00 per Site for any given
\ninstallation, material alteration or removal project. The hourly rate and the
\nmaximum charge for the project manager shall be adjusted on each Adjustment Date
\npursuant to the formula set forth in Section 4.2. Notwithstanding anything to
\nthe contrary contained in this Agreement, Specialty, with respect to any work to
\nbe performed at a Site, shall have the right of first refusal to meet any bona
\nfide bid selected by Customer for the performance of such work upon the same
\nterms and conditions as set forth in the bid. Specialty shall have seven (7)
\nbusiness days after the receipt of such bid to notify Customer whether Specialty
\nintends to meet such bid and perform the work in accordance with the bid. In the
\nevent Specialty does not notify Customer within such time, Customer may proceed
\nto contract with said bidder subject to Specialty’s approval as set forth above.<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 8<\/p>\n
9<\/p>\n
7.2 Liens. Customer must keep the Site free from any liens arising from
\nany work performed, materials furnished or obligations incurred by or at the
\nrequest of Customer. If any lien is filed against the Site as a result of the
\nacts or omissions of Customer’s employees, agent or contractors, Customer must
\ndischarge the lien or bond the lien off in a manner reasonably satisfactory to
\nSpecialty within thirty (30) days after Customer receives written notice from
\nany party that the lien has been filed. If Customer fails to discharge or bond
\nany lien within such period, then, in addition to any other right or remedy of
\nSpecialty, Specialty may, at Specialty’s election, discharge the lien by either
\npaying the amount claimed to be due or obtaining the discharge by deposit with a
\ncourt or a title company or by bonding. Customer must pay on demand any amount
\npaid by Specialty for the discharge or satisfaction of any lien, and all
\nreasonable attorneys’ fees and other legal expenses of Specialty incurred in
\ndefending any such action or in obtaining the discharge of such lien, together
\nwith all necessary disbursements in connection therewith.<\/p>\n
7.3 Waiver of Specialty’s Lien<\/p>\n
7.3.1 Specialty waives any lien rights it may have
\n concerning Customer improvements which are deemed
\n Customer’s personal property and not fixtures and
\n Customer has the right to remove the same at any time
\n without Specialty’s consent.<\/p>\n
7.3.2 Specialty acknowledges that Customer has or may enter
\n into a financing arrangement including promissory
\n notes, security agreements and other similar
\n documents (collectively, “Financing Agreement”) for
\n the financing of the Customer improvements at the
\n Sites (the “Collateral”) with a third party or
\n parties (the “Financing Entity”). In connection
\n therewith, Specialty (i) consents to the installation
\n of the Collateral; (ii) disclaims any interest in the
\n Collateral, as fixtures or otherwise; and (iii)
\n agrees that the Collateral shall be exempt from
\n execution, foreclosure, sale, levy, attachment, or
\n distress for any Rent due or to become due and that
\n such Collateral may be removed at any time without
\n recourse to legal proceedings. Customer agrees to
\n notify Specialty in writing that Customer has entered
\n into the Financing Agreement and of the identity of
\n the Financing Entity. Any removal of property made
\n pursuant to this Section 7.3 shall be made consistent
\n with the provisions of this Agreement.<\/p>\n
7.4 Possession. Taking possession of the Site by Customer is conclusive
\nevidence that Customer:<\/p>\n
7.4.1 Accepts the Site as suitable for the purposes for
\n which they are leased;<\/p>\n
7.4.2 Accepts the Site and any structure on the Site and
\n every part and appurtenance thereof AS IS, with all
\n faults; and<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 9<\/p>\n
10<\/p>\n
7.4.3 Waives any claims against Specialty in respect of
\n defects in the Site or the Leased Sites and its
\n appurtenances, their habitability or suitability for
\n any permitted purposes, except:<\/p>\n
7.4.3.1 If otherwise expressly provided
\n hereunder;<\/p>\n
7.4.3.2 If resulting from the negligence or
\n willful misconduct of Specialty,
\n Specialty’s employees, agents or
\n contractors;<\/p>\n
7.4.3.3 If resulting from any known claim by a
\n third party not identified by Specialty
\n in Specialty’s representations under
\n this Agreement; or<\/p>\n
7.4.3.4 If Specialty had actual knowledge of
\n such defects and did not disclose such
\n defects to Customer.<\/p>\n
For the purposes of this provision, Customer is deemed to have taken
\npossession on the Commencement Date of the respective Leased Site Schedule.<\/p>\n
8. Interference<\/p>\n
Specialty and Customer understand that Customer and other current or
\nfuture users of Leased Sites will utilize the Leased Sites for the transmission
\nof wireless communication signals. Customer agrees to have installed at each
\nLeased Site transmitting and receiving equipment of a type and frequency that
\nwill not cause measurable interference as defined by the FCC (“measurable
\ninterference”) to other users of such Leased Site. In addition, Customer agrees
\nthat it will not change the manner in which it uses its equipment after the date
\nsuch equipment is installed at a Leased Site to a manner that causes measurable
\ninterference to other current users of such Leased Site. Specialty agrees that
\nit will prohibit any future tenants of a Leased Site who take possession after
\nthe date of execution by Customer of a Leased Site Schedule with respect to such
\nLeased Site from installing transmitting and receiving equipment of a type and
\nfrequency that will cause measurable interference to Customer. In addition,
\nSpecialty agrees that it will prohibit any tenant that took possession of space
\non the Leased Site prior to execution by Customer of a Lease Site Schedule with
\nrespect to such Leased Site from changing the manner in uses its equipment at
\nthe Leased Site after Customer’s execution of such Leased Site Schedule to a
\nmanner that causes measurable interference to Customer. In the event that
\nCustomer’s equipment causes measurable interference to other users of a Leased
\nSite, Customer will take all steps necessary to correct and eliminate such
\ninterference to other users of a Leased Site, Customer will take all steps
\nnecessary to correct and eliminate such interference within forty-eight (48)
\nhours of Customer’s receipt of notice of such interference from Specialty;
\nprovided, however, that if (i) upon receipt of such notice, Customer
\ncontinuously and diligently endeavors to correct and eliminate such
\ninterference, and (ii) notwithstanding Customer’s efforts to correct and
\neliminate such interference, such interference cannot be corrected and
\neliminated within said forty-eight (48) hour period, then Customer shall notify
\nSpecialty of this fact, whereupon the period during which Customer shall have
\nthe right to cure such interference pursuant to this Section 8 shall be extended
\nautomatically for an additional period not to exceed thirty (30) days following
\nthe<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 10<\/p>\n
11<\/p>\n
expiration of such initial forty-eight (48) hour period as long as Customer
\ncontinuously and diligently endeavors to correct and eliminate said
\ninterference, unless prior to the expiration of such additional thirty (30) day
\nperiod, Specialty notifies Customer that such interference materially and
\nadversely affects another user’s use of the Leased Site, in which case
\nCustomer’s right to extend the period during which it has the right to cure such
\ninterference pursuant to this Section 8 shall terminate forty-eight (48) hours
\nafter Customer’s receipt of such notice, unless, prior to such time, Customer
\nceases operation from the Leased Site until said interference is eliminated. In
\nthe event that any equipment of any future tenant to the extent that the
\ntenant’s equipment is malfunctioning or is difference or being operated
\ndifferently from when Customer installed its equipment, or the communications
\nfacility causes measurable interference, Specialty will require that said tenant
\ntakes all steps necessary to correct and eliminate the interference within
\nseventy-two (72) hours of Specialty’s receipt of notice from Customer; provided,
\nhowever, that if (i) upon receipt of such notice, Specialty and\/or the other
\nuser whose equipment is causing such interference (the “other user”)
\ncontinuously and diligently endeavors to correct and eliminate such
\ninterference, and (ii) notwithstanding Specialty’s and\/or such other user’s
\nefforts to correct and eliminate such interference, such interference cannot be
\ncorrect and eliminated within said forty-eight (48) hour period, then Specialty
\nshall promptly notify Customer of this fact, whereupon the period during which
\nSpecialty shall have the right to cure such interference pursuant to this
\nSection 8 shall be extended automatically for an additional period not to exceed
\nthirty (30) days following the expiration of such initial forty-eight (48) hour
\nperiod as long as Specialty and\/or the other user continuously and diligently
\nendeavors to correct and eliminate such interference, unless prior to the
\nexpiration of such additional thirty (30) day period, Customer notifies
\nSpecialty that such interference materially and adversely affects Customer’s use
\nof the Leased Site, in which case Specialty’s right to extend the period during
\nwhich it has the right to cure such interference pursuant to this Section 8
\nshall terminate forty-eight (48) hours after Specialty’s receipt of such notice,
\nunless, prior to such time, the other user ceases operation from the Leased Site
\nuntil said interference is eliminated.<\/p>\n
9. Indemnification<\/p>\n
Customer shall indemnify and hold Specialty and all subsidiary
\ncompanies and affiliates harmless against any claim of liability or loss from
\nbodily injury and\/or property damage resulting from or arising out of Customer’s
\nand\/or any of its subcontractors’, servants’, agents’ or invitees’ use or
\noccupancy of the Site, including but not limited to any claim of liability or
\nloss associated with any Environmental Hazards as defined in this Agreement,
\nexcepting, however, such claims or damages as may be caused by the negligence or
\nwillful misconduct of Specialty, or its subcontractors, servants, agents or
\ninvitees. If Specialty is made a party to any litigation commenced by or against
\nCustomer for any of the above reasons, then Customer shall protect and hold
\nSpecialty harmless and pay all costs, penalties, charges, damages, expenses and
\nreasonable attorneys’ fees incurred or paid by Specialty in connection
\ntherewith.<\/p>\n
Specialty shall indemnify and hold Customer and all subsidiary
\ncompanies and affiliates harmless against any claim of liability or loss from
\nbodily injury and\/or property damage resulting from or arising out of
\nSpecialty’s and\/or any of its subcontractors’, servants’, agents’ or invitees’
\nuse of occupancy of the Site, including but not limited to any claim of
\nliability or loss associated with any Environmental Hazards as defined in this
\nAgreement, excepting, however, such claims or damages<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 11<\/p>\n
12<\/p>\n
as may be due to or caused by the negligence or willful misconduct of Customer,
\nor its subcontractors, servants, agent or invitees. If Customer is made a party
\nto any litigation commenced by or against Specialty for any of the above
\nreasons, then Specialty shall protect and hold Customer harmless and pay all
\ncosts, penalties, charges, damages, expenses and reasonable attorneys’ fees
\nincurred or paid by Customer in connection therewith.<\/p>\n
10. Insurance<\/p>\n
Customer shall maintain at its expense throughout the term of this
\nAgreement, general liability insurance with a combined single limit of Five
\nMillion ($5,000,000.00) Dollars for bodily injury and property damage. Coverage
\nshall include Independent Contractors Liability. At execution of this Agreement,
\nCustomer shall provide a Certificate of Insurance to Specialty, evidencing
\nSpecialty as an additional insured and which shall contain a provision for
\nthirty (30) day notice of cancellation or material change to Specialty. Customer
\nshall also maintain Auto Liability insurance in an amount no less than One
\nMillion ($1,000,000.00) Dollars combined single limit for bodily injury and\/or
\nproperty damage. Customer must also maintain statutory Workers’ Compensation
\nInsurance and Employee’s Liability for the statutory limit but in no event less
\nthan One Million ($1,000,000.00) Dollars.<\/p>\n
All insurers will be rated A or better and must be licensed to do
\nbusiness in the jurisdiction where the respective Sites are located. The
\nprovision of insurance required in this Agreement shall not be construed to
\nlimit or otherwise affect the liability of Customer.<\/p>\n
Customer will not do or permit to be done in or about the Leased Sites
\nnor bring or keep or permit to be brought to the Leased Sites anything that: (a)
\nis prohibited by any insurance policy carried by Specialty covering the Site,
\nany improvements thereon, or the Leased Sites; or (b) will increase the existing
\npremiums for any such policy beyond that contemplated for the additional of
\nCustomer’s communications facility. Specialty acknowledges and agrees that the
\ninstallation of Customer’s communications facility upon the Leased Sites in
\naccordance with the terms and conditions of this Agreement will be considered
\nwithin the underwriting requirements of any of Specialty’s insurers and such
\npremiums contemplate the addition of the communications facility.<\/p>\n
The parties hereby waive any and all rights of action for negligence
\nagainst the other which may hereafter since on account of damages to the
\npremises or Site resulting from any fire, or other casualty of the kind covered
\nby standard fire insurance policies, regardless of whether or not, or in what
\namounts, such insurance is now or hereafter carried by the parties, or either of
\nthem. Customer and Specialty shall each obtain a Waiver of Subrogation from
\ntheir respective insurance companies in which said insurance companies also
\nwaive their respect rights to recover.<\/p>\n
11. Surrender of Leased Site<\/p>\n
Customer, upon termination of the Agreement or the applicable Leased
\nSite Schedule, shall have removed its equipment, personal property and all
\nfixtures and have restored the Leased Site to its original condition, reasonable
\nwear and tear excepted. If such time for removal causes Customer to remain on
\nthe Site after termination of this Agreement or the applicable Leased Site
\nSchedule, Customer shall pay rent at one and one-half times the then existing
\nannual rate until such time as the<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 12<\/p>\n
13<\/p>\n
removal of the equipment, personal property and all fixtures are completed.
\nNothing in this provision shall be construed as providing Customer the right to
\nhold over and Specialty, immediately upon the termination or expiration of the
\nAgreement or the applicable Leased Site Schedule, shall have the right to evict
\nCustomer from the Leased Sites.<\/p>\n
12. Representation, Warranties and Covenants<\/p>\n
12.1 Specialty. Specialty warrants, with respect to each particular
\nLeased Site Schedule that:<\/p>\n
12.1.1 Specialty, or the entity for which Specialty
\n possesses the management rights, owns good,
\n marketable fee simple title or has a good and
\n marketable leasehold interest or has the right as a
\n manager or has a valid license or easement in the
\n land on which the Site is located and has the right
\n of access thereto;<\/p>\n
12.1.2 Specialty will not permit or suffer the installation
\n and existence of any other improvement upon the
\n structure land of which the Site is a portion if such
\n improvement materially interferes with transmission
\n or reception by Customer’s wireless transmission
\n facilities at the Site;<\/p>\n
12.1.3 None of the Leased Sites, to the best knowledge of
\n Specialty, is contaminated by any Environmental
\n Hazards as defined below;<\/p>\n
12.1.4 Electrical service is available to Customer at each
\n and every Site with the understanding that Customer
\n will pay for all utility services needed to operate
\n its communications facility; and<\/p>\n
12.1.5 Specialty will keep, at Specialty’s expense, the
\n communications tower structure in good repair as
\n required by law and applicable state and local codes
\n and regulations and shall also comply with all rules
\n and regulations enforced by the FCC and FAA with
\n regard to the lighting, marking and painting of
\n towers.<\/p>\n
12.2 Customer. Customer warrants, with respect to each particular
\nLeased Site Schedule that:<\/p>\n
12.2.1 Customer will maintain its equipment, antennas,
\n transmission lines and other appurtenances in proper
\n operating condition and maintain same as to
\n appearance and safety;<\/p>\n
12.2.2 All installations and operations by Customer in
\n connection with this Agreement shall meet with all
\n applicable rules, codes and regulations of
\n governmental authorities, including, without
\n limitation, the FCC and the municipality, county and
\n state in which such installations and operations
\n exist.<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 13<\/p>\n
14<\/p>\n
Specialty specifically assumes no responsibility for
\n the licensing, operation and\/or maintenance of
\n Customer’s radio equipment; and<\/p>\n
12.2.3 Customer is responsible for bringing telephone
\n service to the Leased Site or for otherwise obtaining
\n access from the Leased Site to telephone service and
\n Customer will pay for all utility services needed to
\n operate its communications facility.<\/p>\n
12.3 Mutual. Each party represents and warrants to the other party:<\/p>\n
12.3.1 It has full right, power and authority to make this
\n Agreement and to enter into the Leased Sites
\n Schedules;<\/p>\n
12.3.2 The making of this Agreement and the performance
\n thereof will not violate any laws, ordinances,
\n restrictive covenants, or other agreements under
\n which such party is bound;<\/p>\n
12.3.3 That such party is qualified to do business in any
\n states in which the Sites are located; and<\/p>\n
12.3.4 All persons signing on behalf of such party were
\n authorized to do so by appropriate corporate or
\n partnership action.<\/p>\n
12.4 No Brokers. Specialty and Customer represent to each other that
\nneither has had any dealings with any real estate brokers or agents in
\nconnection with this Agreement.<\/p>\n
13. Casualty or Condemnation<\/p>\n
13.1 Casualty. If there is a casualty to any structure upon which a
\nCustomer communications facility is located, Specialty must within ninety (90)
\ndays repair or restore the structure. During said period of repair or
\nrestoration, all rent and other fees identified in this Agreement applicable to
\nthat Site shall be abated. Upon completion of such repair or restoration,
\nCustomer is entitled to reinstall Customer’s communications facility. In the
\nevent such repairs or restoration will reasonably require more than ninety (90)
\ndays to complete, Customer is entitled to terminate the applicable Leased Site
\nSchedule upon thirty (30) days prior written notice. During any period during
\nwhich Customer’s equipment cannot function at a Site due to a casualty to any
\nstructure upon which a Customer communications facility is located, subject to
\nthe terms of this Agreement regarding interference and relations with other
\ntenants, Customer shall be afforded the right to locate portable communications
\nequipment at the Site.<\/p>\n
13.2 Condemnation. If there is a condemnation of the Site, including
\nwithout limitation a transfer of the Site by consensual deed in lieu of
\ncondemnation, then the Leased Site Schedule for the condemned Site will
\nterminate upon transfer of title to the condemning authority, without further
\nliability to either party under this Agreement. Customer is entitled to pursue a
\nseparate condemnation award for Customer’s communications facility from the
\ncondemning authority. Specialty will notify<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 14<\/p>\n
15<\/p>\n
Customer within ten (10) business days following Specialty’s receipt of notice
\nof condemnation with respect to a Site.<\/p>\n
14. Default<\/p>\n
14.1 Customer’s Default. The occurrence of any one or more of the
\nfollowing events constitutes an “event of default” by Customer under this
\nAgreement:<\/p>\n
14.1.1 If Customer falls with respect to a total of five (5)
\n or more Sites to pay any fee or other sums payable by
\n Customer within twenty (20) business days of
\n Customer’s receipt of written request for payment;<\/p>\n
14.1.2 Breach of any representation, warranty or covenant
\n set forth in this Agreement including any Leased Site
\n Schedule, with the exception of the non- payment of
\n any fee or other sums by Customer, which is not cured
\n within thirty (30) days of receipt of written notice,
\n except such thirty (30) day cure period will be
\n extended as reasonably necessary to permit Customer
\n to complete the cure so long as Customer commences
\n the cure within such thirty (30) day period and
\n thereafter continuously and diligently pursues and
\n completes such cure;<\/p>\n
14.1.3 If any petition is filed by or against Customer,
\n under any section or chapter of the present or any
\n future federal Bankruptcy Code or under any similar
\n law or statute of the United States or any state
\n thereof (and with respect to any petition filed
\n against Customer, such petition is not dismissed
\n within ninety (90) days after the filing thereof), or
\n Customer is adjudged bankruptcy or insolvent in
\n proceedings filed under any section or chapter of the
\n present or any future Bankruptcy Code or under any
\n similar law or statute of the United States or any
\n state thereof;<\/p>\n
14.1.4 If a receiver, customer or trustee is appointed for
\n Customer or for any of the assets of Customer and
\n such appointment is not vacated within sixty (60)
\n days of the date of appointment;<\/p>\n
14.1.5 If Customer becomes insolvent or makes a transfer in
\n fraud of creditors; or<\/p>\n
14.1.6 If Customer’s equipment is found to be interfering as
\n described to this Agreement and said interference is
\n not timely corrected as provided herein.<\/p>\n
14.2 Specialty’s Remedies. If an event of default occurs, Specialty
\n(without notice or demand except as expressly required above) may terminate this
\nAgreement including applicable Leased Site Schedules, in which event Customer
\nwill immediately surrender the Sites to Specialty. Customer will become liable
\nfor damages equal to the total of;<\/p>\n
14.2.1 The actual costs of recovering the Sites;<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 15<\/p>\n
16<\/p>\n
14.2.2 The rent earned as of the date of termination, plus
\n interest thereon from the date due until paid;<\/p>\n
14.2.3 The amount by which any rents, fees and other
\n benefits that Specialty would have received under the
\n applicable Leased Site Schedules for the remainder of
\n the term under the applicable Leased Site Schedule
\n after the time of award subject to Specialty’s duty
\n to mitigate damages as set forth below;<\/p>\n
14.2.4 All other sums of money and damages owing by Customer
\n to Specialty.<\/p>\n
Specialty may elect any one or more of the foregoing remedies with
\nrespect to this Agreement or to any particular Leased Sites Schedules.<\/p>\n
14.3 Specialty’s Default. If Specialty is in breach of an
\nrepresentation, warranty or covenant set forth in this Agreement and such breach
\nis not cured within thirty (30) days of receipt of written notice thereof,
\nexcept such thirty (30) day cure period will be extended as reasonable necessary
\nto permit Specialty to complete the cure so long as Specialty commences the cure
\nwithin such thirty (30) day period and thereafter continuously and diligently
\npursues and completes such cure. Customer may, in addition to any other remedy
\navailable at law or in equity, at Customer’s option upon written notice:<\/p>\n
14.3.1 Terminate the applicable Leased Site Schedule; or<\/p>\n
14.3.2 Incur any expense reasonably necessary to perform the
\n obligation of Specialty specified in such notice and
\n invoice Specialty for the actual expenses, together
\n with interest as set forth herein from the date
\n named. Any invoice shall be accompanied by
\n documentation reasonably detailing actual expense. If
\n Specialty fails to reimburse the costs within thirty
\n (30) days of receipt of written notice, then Customer
\n is entitled to offer and deduct such expenses from
\n the fees or other charges next becoming due under any
\n Leased Site Schedule.<\/p>\n
Customer may elect any one or more of the foregoing remedies with
\nrespect to any particular Leased Site Schedule.<\/p>\n
14.4 Duty to Mitigate Damages. Specialty and Customer shall endeavor in
\ngood faith to mitigate damages arising under this Agreement.<\/p>\n
15. Environmental Matters<\/p>\n
Specialty represents and warrants that to the best of Specialty’s
\nknowledge there are no Environmental Hazards on any Site. Nothing in this
\nAgreement or in any Leased Site Schedule will be construed or interpreted to
\nrequire that Customer remediate any Environmental Hazards located<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 16<\/p>\n
17<\/p>\n
at any Site unless Customer or Customer’s officers, employee, agents or
\ncontractors placed the Environmental Hazards on the Site.<\/p>\n
Customer will not bring to, transport across or dispose of any
\nEnvironmental Hazards on any particular Leased Sites or Site without Specialty’s
\nprior written approval, which approval shall not unduly be withheld or delayed.
\nCustomer’s use of any approved substances constituting Environmental Hazards
\nmust comply with all applicable laws, ordinances and regulations governing such
\nuse.<\/p>\n
The term “Environmental Hazards” means hazardous substances, hazardous
\nwastes, pollutants, asbestos, polychlorinated biphenyl (PCB), petroleum or other
\nfuels (including crude oil or any fraction or derivative thereof) and
\nunderground storage tanks. The term “hazardous substances” shall be defined in
\nthe Comprehensive Environmental Response, Compensation, and Liability Act, and
\nany regulations promulgated pursuant thereto. The term “pollutants” shall be as
\ndefined in the Clean Water Act, and any regulations promulgated pursuant
\nthereto. This Section shall survive termination of the Agreement and any
\nparticular Leased Site Schedule.<\/p>\n
16. Covenant of Quite Enjoyment<\/p>\n
Specialty covenants that Customer, on paying the rent and performing
\nall the terms, covenants and conditions of this Agreement, shall peaceably and
\nquietly have, hold and enjoy the Leased Sites.<\/p>\n
17. Entire Agreement<\/p>\n
It is agreed and understood that this Agreement, including all Leased
\nSite Schedules, contain all the agreements, promises and understandings between
\nSpecialty and Customer and that no verbal or oral agreements, promises or
\nunderstandings shall be binding upon either Specialty or Customer in any
\ndispute, controversy or proceeding at law, and any addition, variation or
\nmodification to this Agreement shall be void and ineffective unless made in
\nwriting signed by the parties.<\/p>\n
18. Governing Laws Arbitration<\/p>\n
The laws of the State of Texas, disregarding conflict of law
\nprinciples, shall govern this Agreement. Any dispute or controversy arising
\nunder, out of, in connection with or in relation to this Agreement shall, at the
\nelection and upon written demand of either party, be finally determined and
\nsettled by arbitration in the city of Dallas, Texas in accordance with the rules
\nand procedures of the American Arbitration Associations, and judgment upon the
\naward may be entered in any court having jurisdiction hereof.<\/p>\n
19. Assignment<\/p>\n
This Agreement may not be sold, subleased, assigned or transferred by
\nCustomer without prior approval or consent of Specialty; provided, however, that
\nCustomer may assign its interest to its parent company, any subsidiary or
\naffiliate or to any successor-in-interest or entity acquiring 51% or more of its
\nstock or assets, so long as any such purchaser, sublessee, assignee or
\ntransferee has a<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 17<\/p>\n
18<\/p>\n
net worth of $25,000,000.00 as defined by generally accepted accounting
\nprinciples. It is understood that any such assignment shall not relieve Customer
\nof any liability for performance of this Agreement. Customer acknowledges that
\nCustomer is the current holder of all requisite FCC licenses necessary for it to
\nlawfully provide the wireless services that it intends to offer utilizing the
\nLeased Sites identified in Exhibit “A.” As to other entities, this Agreement may
\nnot be sold, subleased, assigned or transferred, in whole or in part, without
\nthe written consent of Specialty, for any purpose, which consent may be withheld
\nin Specialty’s absolute discretion.<\/p>\n
Specialty consents to the assignment by Customer of this Agreement to
\nthe Financing Entity described in Paragraph 7.3 above as security for the
\npayment of all indebtedness and performance of obligations under the Financing
\nAgreement; provided that, such assignment shall not constitute assumption by the
\nFinancing Entity of any obligations under this Agreement unless and until the
\nFinancing Entity elects to assume Customer’s rights and obligations herein in
\nthe event Customer defaults under the Financing Agreement or any agreement with
\nthe Financing Entity related thereto. In such event, the Financing Entity may,
\nbut shall have no obligation to take in its name or in the name of Customer or
\notherwise, such actions as the Financing Entity may, at any time or from time to
\ntime deem necessary to utilize the Leased Site. Customer hereby irrevocably
\nauthorizes Specialty to accept such performance by the Financing Entity. Any
\nsuch assignment does not relieve Customer of any liabilities or obligations for
\nperformance identified in this Agreement.<\/p>\n
20. Severability<\/p>\n
If any provision of this Agreement or any Leased Site Schedule is
\ninvalid or unenforceable with respect to any party, the remainder of this
\nAgreement, or the application of such provision to persons other than those as
\nto whom it is held invalid or unenforceable, is not to be affected and each
\nprovision of this Agreement is valid and enforceable to the fullest extent
\npermitted by law.<\/p>\n
21. No Waiver<\/p>\n
No provision of this Agreement will be deemed to have been waived by
\neither party unless the waiver is in writing and signed by the party against
\nwhom enforcement is attempted. The rights granted in this Agreement are
\ncumulative of every other right or remedy that the enforcing party may otherwise
\nhave at law or in equity or by statute and the exercise of one or more rights or
\nremedies will not prejudice or impair the concurrent or subsequent exercise of
\nother rights or remedies.<\/p>\n
22. Representation<\/p>\n
Each of the parties acknowledges and agrees that it has been
\nrepresented by counsel and that it has participated in the drafting of this
\nAgreement. Accordingly, it is the intention and agreement of the parties that
\nthe language, terms and conditions of this Agreement are not to be construed in
\nany way against or in favor of any party hereto by reason of the
\nresponsibilities in connection with the preparation of this Agreement.<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 18<\/p>\n
19<\/p>\n
23. Notices<\/p>\n
Any notice or demand required to be given in this Agreement shall be
\nmade by certified mail, return receipt requested, or reliable overnight courier,
\nto the address of the other party set forth below:<\/p>\n
As to Customer: ALAMOSA PCS, LLC
\n P.O. Box 65700
\n Lubbock, Texas 79424
\n Attention: David Sharbutt<\/p>\n
WITH A COPY TO:<\/p>\n
———————–<\/p>\n
———————–<\/p>\n
———————–
\n Attention:
\n ————-<\/p>\n
As to Specialty: Specialty Capital Services, Inc.
\n 12001 Hwy 14 North
\n Cedar Crest, New Mexico 87008
\n Attention: Jeffrey A. Howard, Vice President<\/p>\n
WITH A COPY TO: OmniAmerica, Inc.
\n 2 Summit Park Drive, Suite 105
\n Cleveland, Ohio 44131
\n Attention: F. Howard Mandel, Vice President
\n and General Counsel<\/p>\n
Any such notice or demand is deemed received three (3) business days
\nfollowing deposit in the United States Mails addressed as required above.
\nSpecialty or Customer may from time to time designate any other address for this
\npurpose by giving written notice to the other part.<\/p>\n
24. Binding Effect<\/p>\n
This Agreement shall extend to and bind the heirs, personal
\nrepresentatives, successors and assigns of the parties hereto. The parties
\nfurther agree that all of the provisions in this Agreement shall affect and bind
\nany and all tenants or occupants of the Site who come upon the same through or
\nby agreement with either party. Each party shall be fully responsible to ensure
\nthat any and all tenants or occupants of the Site who come upon the same through
\nor by agreement with that party comply with all of the terms and provisions of
\nthis Agreement and such party shall be fully liable and responsible for any
\nbreaches of this Agreement by its tenants or occupants.<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 19<\/p>\n
20<\/p>\n
25. Prime Lease<\/p>\n
The parties acknowledge that Specialty’s rights in the Site may be
\nderived from a Prime Lease in which Specialty is lessee, sublessee, grantee,
\nlicensee or assignee therein. If this is the case, a copy of said Prime Lease
\nshall be attached as Exhibit 4 to the applicable Leased Site Schedule, and the
\nfollowing provisions shall be applicable. In the event approval of the prime
\nlessor, grantor or licensor is required in the Prime Lease, the effectiveness of
\nany Leased Site Schedule concerning such property shall be specifically subject
\nto the obtaining of such approval. Further, all the terms, conditions and
\ncovenants contained in this Agreement shall be specifically subject to and
\nsubordinate to the terms and conditions of any Prime Lease affecting the Site
\nthat is the subject of the particular Leased Site Schedule. In the event any o
\nthe provisions of the Prime Lease supersede or contradict the terms of this
\nAgreement, such terms of this Agreement shall be deemed deleted or superseded to
\nthe extent of the contradiction as applicable to the space utilized by Customer.
\nFurther, Customer agrees to be bound by and agrees to perform all the acts and
\nresponsibilities required of the lessee, sublessee, grantee, licensee or
\nassignee pursuant to the Prime Lease as are applicable to the access and
\noccupancy of the premises utilized by Customer. Lastly, in the event the Prime
\nLease terminates for any reason, the Leased Site Schedule relating to the Site
\ncovered by said Prime Lease, shall be deemed to have terminated effective the
\ndate of the termination of the Prime Lease.<\/p>\n
26. Termination<\/p>\n
In the event any previously approved zoning or governmental permit
\naffecting the use of the property as a communications facility is withdrawn or
\nterminated, the Leased Site Schedule relating to the property covered by said
\npermit or approval shall be deemed to have been terminated effective the date of
\nthe termination of the permit or approval. In addition to any other rights to
\nterminate a Leased Site Schedule, Specialty has the right to terminate a Leased
\nSite Schedule and all of Customer’s right to the premises leased pursuant to the
\nLeased Site Schedule if any equipment placed on the Site by Customer
\nunreasonably interferes with any equipment located on said Leased Site and
\nCustomer fails to resolve such interference problem as provided above.<\/p>\n
27. Supercedes<\/p>\n
This Agreement revokes and supersedes any other oral or written
\nagreements between the parties, whether or not in writing, that pertain to the
\nsubject matter described herein.<\/p>\n
28. Non-Disclosure<\/p>\n
The parties agree that without the express written consent of the other
\nparty, neither party shall reveal, disclose or promulgate to any third party the
\nterms of this Agreement or any portion thereof, except to such third party’s
\nauditor, accountant or attorney or investors or to a governmental agency if
\nrequired by regulation, subpoena or government order to do so.<\/p>\n
29. Third Parties<\/p>\n
Any obligations imposed on Customer in this Agreement shall be equally
\nand fully applicable to any other third parties that Customer brings on to the
\nproperty or comes upon the property through or under the authority of Customer.
\nAny breach by such other third parties shall be decreed<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 20<\/p>\n
21<\/p>\n
a breach by Customer under this Agreement and Customer shall be fully liable and
\nresponsible to Specialty pursuant to the terms of this Agreement for such
\nbreach.<\/p>\n
IN WITNESS WHEREOF, the parties have duly executed and delivered this
\nAgreement as of the Effective Date.<\/p>\n
ALAMOSA PCS LLC<\/p>\n
By: \/s\/ David Sharbutt
\n ———————————–
\n Name: David Sharbutt
\n —————————–
\n Title: Chairman
\n —————————-<\/p>\n
SPECIALTY CAPITAL SERVICES, IN.<\/p>\n
By: \/s\/ Michael Budagher
\n ———————————–
\n Name: Michael Budagher
\n —————————–
\n Title: Chairman
\n —————————-<\/p>\n
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 21<\/p>\n
22<\/p>\n
ADDENDUM I TO
\n MASTER SITE DEVELOPMENT AND LEASE AGREEMENT<\/p>\n
This Addendum contains certain changes, additional or supplemental
\nterms and provisions to that certain Master Site Development and Lease Agreement
\n(the “Master Site Agreement”) entered into contemporaneously with and by the
\nsame parties as the Master Site Development and Lease Agreement dated the 20th
\nday of August, 1998, by and between Alamosa PCS LLC, as “Customer”, and
\nSpecialty Capital Services, Inc., as “Specialty”. Except for the expressed
\nmodifications made in this Addendum, the Master Site Development and Lease
\nAgreement continues in full force and effect.<\/p>\n
The Master Site Development and Lease Agreement is modified as follows:<\/p>\n
1. Paragraph 1.1 shall have added thereto the following:<\/p>\n
“The parties acknowledge that the initial portions of this
\n Agreement are being done in a very short time frame. If for
\n any reason a site is located and in a good faith effort to
\n provide such short time frame services, Specialty should incur
\n expenses in acquiring a site, doing extensive research
\n involved a site such as soil surveys, environmental reports,
\n seeking zoning and other licenses for locating a site, and
\n after incurring such expenses for reasons caused by the
\n customer such site should change, in that event, Alamosa will
\n pay, as additional consideration under this Agreement, all
\n such amounts. This reimbursement on a cost basis only with no
\n additional added expense or cost, shall occur only in those
\n events in which customer shall change the site location and in
\n which Specialty has incurred such additional time and
\n expense.”<\/p>\n
2. Paragraph 3.2 shall have added thereto the following:<\/p>\n
“In the event that a Prime Lease shall terminate for any
\n reason during the terms of this Agreement, and such
\n termination of a Prime Lease cause the loss of a site,
\n Specialty agrees to make its best efforts to attempt to secure
\n a substitute for the site lost by the termination of the Prime
\n Lease with no obligation to actually substitute the site.”<\/p>\n
3. Paragraph 9 shall have added thereto the following:<\/p>\n
“In the event that either party hereto shall provide the
\n indemnification set forth in the preceding paragraphs of this
\n Section, in that event, the party to whom indemnification is
\n given shall have the right to choose and approve of any
\n attorneys or firm of attorneys who may represent them in any
\n matter for which indemnification is being provided by the
\n other party. The costs of such representation shall be paid by
\n the party who is providing the indemnification and shall be
\n paid at the normal and usual rates of such attorneys and in
\n the manner to which is normal and usual for such
\n representation.”<\/p>\n
ADDENDUM I TO
\nMASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 1<\/p>\n
23<\/p>\n
4. Paragraph 10 shall have added thereto the following:<\/p>\n
“Specialty shall furnish the Customer a certificate evidencing
\n compliance with the foregoing requirements showing the
\n Customer and Sprint Spectrum L.P., a Delaware Limited
\n Partnership, Wireless Co, L.P., a Delaware Limited
\n Partnership, and SprintCom, Inc., a Kansas Corporation, as
\n additional insureds. Such certificates and policies of
\n insurance shall provide not less than thirty (30) days written
\n notice to the Customer and all additional insureds of any
\n cancellation or material reduction in the insurance.”<\/p>\n
5. Paragraph 18 shall be changed to read as follows:<\/p>\n
“18. GOVERNING LAW; PERFORMANCE AND ARBITRATION. This
\n Agreement shall be governed by the laws of the State of Texas
\n and shall be deemed to be executed in and performance called
\n for in Lubbock, Lubbock County, Texas. Any dispute or
\n controversy arising under, out of, or in connection with this
\n Agreement, shall be determined and settled by mediation or by
\n arbitration as follows:<\/p>\n
1. MEDIATION. Customer and Specialty agree to mediate
\n any dispute arising under this contract. In the event
\n of any dispute, the parties, within thirty (30) days
\n of a written request for mediation, shall attend, in
\n good faith, a mediation in order to make a good faith
\n reasonable effort to resolve any dispute arising
\n under this contract. If this good faith mediation
\n effort fails to resolve any dispute arising under
\n this contract, Customer and Specialty agree to
\n arbitrate any dispute arising under this contract.
\n This arbitration shall occur only after the mediation
\n process described herein.<\/p>\n
2. ARBITRATION. Customer and Specialty agree, as
\n concluded by the parties to this Agreement on the
\n advice of their counsel, and as evidenced by the
\n signatures of the parties and of their respective
\n attorneys, it is agreed that all questions as to
\n rights and obligations arising under the terms of
\n this contract are subject to arbitration and such
\n arbitration shall be governed by the provisions of
\n the Texas General Arbitration Act (Texas Civil
\n Practice and Remedies Code Section 171.001 et seq as
\n it may be amended from time to time).<\/p>\n
3. DEMAND FOR ARBITRATION. If a dispute should arise
\n under this contract, either party may within thirty
\n (30) days make a demand for arbitration by filing a
\n demand in writing with the other.<\/p>\n
4. APPOINTMENT OF ARBITRATORS. The parties to this
\n Agreement may agree on one arbitrator, but in the
\n event that they cannot so agree, there shall be three
\n arbitrators, one named in writing by each of the
\n parties within thirty (30) days after demand for
\n arbitration is made, and a third to be chosen by the<\/p>\n
ADDENDUM I TO
\nMASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 2<\/p>\n
24<\/p>\n
two so named. Should either party fail to timely join
\n in the appointment of the arbitrators, the
\n arbitrators shall be appointed in accordance with the
\n provisions of Texas Civil Practice and Remedies Code
\n Section 171.041.<\/p>\n
5. HEARING. All arbitration hearings conducted under
\n the terms of this Agreement, and all judicial
\n proceedings to enforce any of the provisions of this
\n Agreement, shall take place in Lubbock County, Texas.
\n The hearing before the arbitrators of the matter to
\n be arbitrated shall be at the time and place within
\n that County selected by the arbitrators or if deemed
\n by the arbitrators to be more convenient for the
\n parties or more economically feasible, may be
\n conducted in any city of the State of Texas.<\/p>\n
6. ARBITRATION AWARD. If there is only one
\n arbitrator, his or her decision shall be binding and
\n conclusive. The submission of a dispute to the
\n arbitrators and the rendering of their decision shall
\n be a condition precedent to any right of legal action
\n on the dispute. A judgement confirming the award of
\n the arbitrators may be rendered by any court having
\n jurisdiction; or the court may vacate, modify, or
\n correct the award in accordance with the provisions
\n of the Texas General Arbitration Act (Texas Civil
\n Practice and Remedies Code Section 171.087 et seq as
\n it may be amended from time to time).<\/p>\n
7. NEW ARBITRATORS. If the arbitrators selected,
\n pursuant to Paragraph c., above, shall fail to render
\n a decision within thirty (30) days of the date of
\n hearing, they shall be discharged, and three new
\n arbitrators shall be appointed and shall proceed in
\n the same manner, and the process shall be repeated
\n until a decision is finally reached by two of the
\n three arbitrators selected.<\/p>\n
8. COSTS OF ARBITRATION. The costs and expenses of
\n arbitration, including the fees of the arbitrators,
\n shall be borne by the losing party or in such
\n proportions as the arbitrators shall determine.<\/p>\n
9. CONDUCT OF ARBITRATION. Any arbitration brought
\n under the terms of this Agreement shall be conducted
\n in the following manner:<\/p>\n
a. Time Limitations. The parties agree that
\n the following time limitations shall govern
\n the arbitration proceedings conducted under
\n the terms of this Agreement:<\/p>\n
(i) Any demand for arbitration must
\n be filed within thirty (30) days of
\n the date on which the dispute arises
\n or the alleged breach occurs.<\/p>\n
ADDENDUM I TO
\nMASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 3<\/p>\n
25<\/p>\n
(ii) Each party must select an
\n arbitrator within thirty (30) days
\n of receipt of notice that an
\n arbitration proceeding has
\n commenced. In the event that no such
\n selection is made, the arbitrator
\n selected by the other party may
\n conduct the arbitration proceeding
\n without selecting any other
\n arbitrator.<\/p>\n
(iii) The hearing must be held
\n within thirty (30) days of the date
\n on which the third arbitrator is
\n selected.<\/p>\n
(iv) Hearing briefs must be selected
\n within ten (10) days of the hearing
\n date.<\/p>\n
(v) The arbitration award must be
\n made within thirty (30) days of the
\n receipt of hearing briefs.<\/p>\n
b. Discovery in Arbitration Proceedings. The
\n parties agree that discovery may be
\n conducted in the course of the arbitration
\n proceeding in accordance with the following
\n provisions:<\/p>\n
(i) Each party may notice no more
\n than three (3) depositions in total,
\n including both witnesses adherent to
\n the adverse party and third-party
\n witnesses.<\/p>\n
(ii) Each party may serve no more
\n than twenty-five (25) requests for
\n admission on the other party. No
\n requests may be served within ten
\n (10) days of the date of hearing,
\n unless the parties otherwise
\n stipulate. All requests for
\n admission shall be responded to
\n within ten (10) days of service of
\n the requests, unless the parties
\n otherwise stipulate.<\/p>\n
(iii) Each party may serve no more
\n than fifty (50) interrogatories on
\n the other party. No interrogatory
\n shall contain subparts, or concern
\n more than one topic or subject of
\n inquiry. Interrogatories may not be
\n phrased so as to circumvent the
\n effect of this clause. No
\n interrogatories may be served within
\n ten (10) days of the date of
\n hearing, unless the parties
\n otherwise stipulate. All
\n interrogatories shall be responded
\n to within ten (10) days of service
\n of the interrogatories, unless the
\n parties otherwise stipulate.<\/p>\n
(iv) Each party may serve no more
\n than ten (10) requests for
\n production of documents on the other
\n party. No request for production of
\n documents shall contain subparts, or
\n seek<\/p>\n
ADDENDUM I TO
\nMASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 4<\/p>\n
26<\/p>\n
more than one type of document.
\n Requests for production of documents
\n may not be phrased so as to
\n circumvent the effect of this
\n clause. Unless the parties otherwise
\n stipulate, requests for production
\n of documents may not be served
\n within ten (10) day of the date of
\n hearing, and all requests for
\n production of documents shall be
\n responded to within ten (10) days of
\n service of the requests.<\/p>\n
(v) If any party contends that the
\n other party has served discovery
\n requests in a manner not permitted
\n by this Section, or that the other
\n party’s response to a discovery
\n request is unsatisfactory, the party
\n may request the arbitrators to
\n resolve such discovery disputes. The
\n arbitrators shall prescribe the
\n procedure by which such disputes are
\n resolved.”<\/p>\n
6. Paragraph 28 shall be changed to read as follows:<\/p>\n
“28. NON-DISCLOSURE. The parties agree that without the
\n express written consent of the other party, neither party
\n shall reveal, disclose or promulgate to any third party the
\n terms of this Agreement or any portion thereof, except to such
\n third party’s auditor or accountant or attorney or investors
\n or to a governmental agency if required by regulation,
\n subpoena or government order to do so, or to customer’s bank
\n or other financial institutions lending money to customer.”<\/p>\n
7. Paragraph 12.2.3 shall have added thereto the following:<\/p>\n
“Notwithstanding the foregoing, customer shall be responsible
\n for bringing telephone service to the leased site, and once
\n such service is brought to the leased site, Speciality shall
\n be responsible for all installation of that service or
\n otherwise obtaining access to that service from the tower or
\n other location being provided by Speciality under this
\n Agreement.”<\/p>\n
ADDENDUM I TO
\nMASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 5<\/p>\n
27<\/p>\n
The foregoing Addendum is hereby agreed to this 20th day of August,
\n1998, to be effective the 27th day of July, 1998.<\/p>\n
CUSTOMER<\/p>\n
ALAMOSA PCS LLC<\/p>\n
By \/s\/ David Sharbutt
\n ————————————
\n DAVID E. SHARBUTT, Chairman<\/p>\n
SPECIALTY<\/p>\n
SPECIALTY CAPITAL SERVICES, INC.<\/p>\n
By \/s\/ Jeffrey A. Howard
\n ————————————
\n Jeffery A. Howard (Name)
\n ——————————
\n Vice President (Title)
\n —————————–<\/p>\n
Approved as to the Mediation and Arbitration provisions in paragraph 5 above.<\/p>\n
CRENSHAW, DUPREE & MILAM, L.L.P.<\/p>\n
By \/s\/ Jack McCutchin, Jr.
\n ————————————
\n Jack McCutchin, Jr.
\n Attorneys for Alamosa PCS LLC<\/p>\n
\/s\/ Jeffrey A. Howard
\n —————————————
\n Jeffrey A. Howard
\n Attorney for Specialty Capital
\n Services, Inc.<\/p>\n
ADDENDUM I TO
\nMASTER SITE DEVELOPMENT AND LEASE AGREEMENT – PAGE 6<\/p>\n
EX-10.18<\/p>\n22<\/p>\nEMPLOYMENT AGREEMENT – JERRY BRANTLEY<\/p>\n 1<\/p>\n
EXHIBIT 10.18<\/p>\n
EMPLOYMENT AGREEMENT<\/p>\n
This Employment Agreement (this “Agreement”) is entered into this date by
\nand between ALAMOSA PCS LLC, a Texas Limited Liability Company, having its
\nprincipal executive office located at 4747 S. Loop 289, Lubbock, Texas 79424
\n(the “Company”), and JERRY BRANTLEY, an individual residing at San Antonio,
\nTexas (the “Employee”).<\/p>\n
WITNESSETH:<\/p>\n
WHEREAS, the parties are entering into this Agreement to set forth and
\nconfirm their respective rights and obligations with respect to the Employee’s
\nemployment by the Company.<\/p>\n
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
\nthe parties hereto mutually agree as follows:<\/p>\n
1. EMPLOYMENT; TERM; DUTIES. The Company hereby employs the Employee as
\nChief Operating Officer. The term of the Employee’s employment, pursuant to this
\nAgreement, will commence on October 1, 1998, (the “Commencement Date”) and will
\ncontinue for a period of three (3) years, or the termination of this Agreement,
\nas described in Section 5 hereof, whichever shall occur first. The Employee
\nhereby accepts such employment, and agrees to devote his full time and effort to
\nthe business and affairs of the Company with such duties consistent with the
\nEmployee’s position as may be assigned to him from time to time by the Board of
\nManagers of the Company. The Company may employ a Chief Executive Officer, and,
\nif so directed by the Board of Managers, Employee shall report to and perform
\nsuch duties as may be assigned by said Chief Executive Officer.<\/p>\n
2. COMPENSATION. In consideration of all services rendered by the Employee
\nduring the term of his employment, pursuant to this Agreement, the Company will
\nprovide the Employee with the following compensation:<\/p>\n
(a) BASE SALARY. The Company will pay the Employee a base salary at the
\n annual rate of $175,000.00, payable semi-monthly in accordance with the
\n Company’s payroll practices from time to time in effect. The Company
\n will review the Employee’s salary at least once each year and may, in
\n its discretion, increase the Employee’s salary. Notwithstanding anything
\n to the contrary in this Agreement, nothing in this Agreement shall be
\n deemed to impose any obligation on the Company or any of its
\n subsidiaries to continue to employ the Employee, or on the Employee to
\n remain in the employ of the Company or any of its subsidiaries.<\/p>\n
(b) BONUS. In addition to the Employee’s base salary, for each quarter
\n the Employee is employed by the Company, beginning April 1, 1999, the
\n Employee is entitled to a Quarterly Bonus of $15,000.00 for each
\n calender quarter in which the milestones (the “Milestones”) set forth in
\n the attached EXHIBIT “A”, which is incorporated by this reference as if
\n copied at length,<\/p>\n
1<\/p>\n
2<\/p>\n
are met or exceeded. This Bonus will be paid at the end of each month.
\n If the Milestones are not met, Employee is entitled to a portion of the
\n Quarterly Bonus, calculated based on the pro rata portion of the
\n Milestones met. For each calender quarter in which the Exceptional
\n Milestones as set forth in Exhibit “A” are met or exceeded, Employee is
\n entitled to an additional $15,000.00 Quarterly Bonus. The bonuses
\n provided for in this subsection 2(b) are referred to herein,
\n individually and collectively, as the “Quarterly Bonus(es).”<\/p>\n
(1) In lieu of the Quarterly Bonuses, Employee shall receive a
\n bonus of $5,000.00 per month (the “Monthly Bonus”) for the first
\n six (6) months of this Agreement. The Monthly Bonus is
\n nonrefundable, and is not conditioned on meeting or exceeding the
\n Milestones.<\/p>\n
(2) Any Quarterly Bonus after the first six (6) months of this
\n Agreement to which Employee is entitled to under this subsection
\n 2(b) must be paid in full no later than forty-five (45) days after
\n the end of the calender quarter for which the Quarterly Bonus was
\n earned.<\/p>\n
(c) EMPLOYEE STOCK OPTIONS. The Employee shall be granted stock options
\n in three series; the 8% Option Series, the 15% Option Series, and the
\n 25% Option Series. Over the term of the agreement each stock option
\n series shall give the employee the right to purchase a 0.5% interest in
\n the Company, up to a total of 1.5%, at the Exercise Price at any time
\n after January 1, 2004 but before its expiration date on January 5, 2008.<\/p>\n
(1) Vesting of Options. The options shall vest over three years.
\n The first options shall vest on the first day following the
\n one-year anniversary of the Commencement Date. On that day, three
\n stock options, one from each series, shall be vested giving the
\n employee the right to purchase 0.16667% of the Company with each
\n option. For each month of the Employee’s continued employment
\n following the one-year anniversary, an option from each series for
\n the purchase of 0.013889% of the Company shall vest. This monthly
\n vesting shall continue until such time as the employee has options
\n to purchase a maximum of 1.5% of the Company, a 0.5% interest in
\n the Company through each series.<\/p>\n
(2) Calculation of the Exercise Price. The Exercise Price for each
\n option shall increase monthly by the Monthly compounded rate as
\n specified for each option. The 8% Option shall have an Exercise
\n Price that shall increase 8% annually or a Monthly compounded rate
\n of 0.64340%. The 15% Option shall have an Exercise Price that shall
\n increase 15% annually or a Monthly compounded rate of 1.17149%. The
\n 25% Option shall have an Exercise Price that shall increase 25%
\n annually or Monthly compounded rate of 1.8769%.<\/p>\n
2<\/p>\n
3<\/p>\n
(i) The Exercise Price for each option shall increase each
\n month. The Exercise Price shall be calculated each month by
\n multiplying (i.) the Exercise Price for the previous month,
\n times (ii.) one plus the Monthly compounded rate. For the
\n purposes of this calculation, the starting period for the
\n calculation of the Exercise Price for each option shall be
\n September 30, 1998, and the initial Exercise Price shall be
\n the product of the Committed Capital for Alamosa times the
\n percent interest represented by the Option. Committed Capital
\n for Alamosa is, initially, $48,500,000 as set forth in EXHIBIT
\n “A” to the Regulations of Alamosa PC LLC which is incorporated
\n by this reference as if copied at length. Committed Capital
\n may increase or decrease, and the Exercise Price shall be
\n adjusted to reflect any such increases or decreases.<\/p>\n
(3) Distributions in Excess of the Distribution of Available Cash.
\n If during any month, the Company shall make any distributions to
\n the Members of the Company greater than the distribution of
\n Available Cash as required by subsection 5.2 of the Regulations of
\n Alamosa PCS LLC, which is incorporated by this reference as if
\n copied at length, then the Exercise Price shall be reduced. The
\n Exercise Price shall be reduced by an amount equal to (i.) the
\n difference between the actual distribution and the distribution of
\n Available Cash required by the Regulations, times (ii.) the percent
\n interest represented by the Option.<\/p>\n
(4) Expiration. All Options shall expire January 5, 2008.<\/p>\n
(5) Exercise of Options. The Employee must give the Company at
\n least sixty (60) days notice of his desire to exercise any of his
\n vested options. The Employee shall have two methods of exercising
\n his options. First, the Employee may purchase for cash an interest
\n in the Company by paying the exercise price of the options. This
\n method may be used to purchase an interest in whole or in part.
\n Second, the Employee may notify the Company that he wishes to
\n exercise the options under the Cashless Exercise Provisions
\n outlined below.<\/p>\n
(i) If the Employee wishes to exercise his options under the
\n Cashless Exercise Provisions, he shall notify the Company in
\n writing at least sixty (60) days prior to the desired exercise
\n date. The Cashless exercise date may occur only at the end of
\n the annual accounting year. Within fifteen (15) days of
\n receiving notice, the Company shall appoint an independent
\n appraiser who is an expert in the valuation of wireless
\n telecommunication businesses to prepare an estimated value for
\n the Company within forty-five (45) days after his<\/p>\n
3<\/p>\n
4<\/p>\n
appointment, the Company Value. Such value shall not include
\n any provisions for a minority or marketability discount. If
\n the Employee does not agree with the Company appointed
\n appraiser’s valuation of the business, he may hire, at his own
\n expense, a second independent appraiser who is an expert in
\n the valuation of wireless telecommunication businesses to
\n prepare a second valuation. If the second valuation is within
\n 10% of the valuation prepared by the Company’s appointed
\n appraiser, the Company Value shall be the arithmetic mean of
\n the two (2) valuations.<\/p>\n
If the two (2) valuations are not within 10% of each other,
\n the Company and Employee will appoint and split the cost of
\n hiring a third independent appraiser who is an expert in the
\n valuation of wireless telecommunication businesses to prepare
\n a third valuation.<\/p>\n
If two (2) of the fair market values determined by the
\n appraisers are within 10% of one another, and the third value
\n is not within 10% of the other fair market values, then the
\n Company Value will be the arithmetic mean of the two (2) more
\n closely aligned fair market values.<\/p>\n
If none of the three (3) valuations are within 10% of each
\n other, then the Company Value will be the average of all three
\n (3) valuations.<\/p>\n
(ii) Using the Company Value estimated above, the value of the
\n Employee’s options shall be calculated. The value of an option
\n shall be the value of the Company, times the percent interest
\n represented by the option, less the Exercise Price of the
\n option, less any unpaid balance of Employee’s loan as
\n described in Paragraph 7(b). The sum of all such option values
\n shall be the Total Option Value.<\/p>\n
(iii) In exchange for the Employee’s options, the Company
\n shall then issue an interest in the Company equal to the Total
\n Option Value, divided by the Company Value.<\/p>\n
(6) Termination of Employment. If the Employee’s employment is
\n terminated prior to September 30, 2001, for any reason, the Company
\n shall have the absolute right to purchase the Employee’s stock options
\n at the Total Option Value described above, at any time after October 2,
\n 2003.<\/p>\n
3. EMPLOYEE BENEFITS. The Employee will be entitled to participate in all
\nincentive, retirement, profit-sharing, life, medical, disability and other
\nbenefit plans and<\/p>\n
4<\/p>\n
5<\/p>\n
programs (collectively “Benefit Plans”) as are from time to time generally
\navailable to other executives of the Company with comparable responsibilities,
\nsubject to the provisions of those programs. Without limiting the generality of
\nthe foregoing, the Company will provide the Employee with basic health and
\nmedical benefits on the terms that such benefits are provided to other
\nexecutives of the Company with comparable responsibilities. The Employee will
\nalso be entitled to a minimum of three (3) weeks paid vacation per year.
\nVacation time must be used during the year in which it accrues. Unused vacation
\ntime may not be carried over into the next employment year. Unused vacation time
\nwill not be paid to the Employee upon termination of the Employee’s employment.<\/p>\n
4. REIMBURSEMENT OF EXPENSES.<\/p>\n
(a) The Company will promptly reimburse the Employee, in accordance with
\n the Company’s policies and practices in effect from time to time, for
\n all expenses reasonably incurred by the Employee in performance of the
\n Employee’s duties under this Agreement.<\/p>\n
(b) In addition to reimbursed expenses, Employee is entitled to $600.00
\n per month for a vehicle allowance plus the standard mileage rate allowed
\n by the Internal Revenue Service, and set forth in a Revenue Procedure
\n (“Rev. Proc.”) each year.<\/p>\n
(1) In 1998, the standard mileage rate is 32.5(cent) per mile as
\n set forth in Rev. Proc. 97-58, 1997-52 I.R.B. 24, 12\/27\/97.<\/p>\n
(2) Business mileage does not include commuting from Employee’s
\n residence to the Company’s headquarters.<\/p>\n
(3) Employee is responsible for proper substantiation and reporting
\n of business mileage and\/or actual expenses.<\/p>\n
(4) Employee acknowledges that the payment to him of a monthly
\n vehicle allowance plus the standard mileage rate may result in
\n taxable income if the business portion of actual automobile
\n expenses is less than the total amount paid to employee under this
\n subsection, or if employee does not maintain the records required
\n by the Internal Revenue Code and the Regulations thereunder.
\n Employee has been advised to consult a tax advisor to determine the
\n taxability of payments under this subsection, and the record
\n keeping requirements associated with the travel and expenses
\n associated with such payments.<\/p>\n
5. TERMINATION. The Employee’s employment by the Company: (a) shall
\nterminate upon the Employee’s death or disability (as defined below); (b) may be
\nterminated by the Company without cause at any time beginning on the first day
\nof the thirteenth (13th) month after the Commencement Date; (c) may be
\nterminated by the Company for cause (as defined below) at any time.<\/p>\n
5<\/p>\n
6<\/p>\n
(a) The term “disability” means a physical or mental impairment which
\n renders the Employee unable to carry out the Employee’s duties under
\n this Agreement for more than ninety (90) days in any twelve-month
\n period.<\/p>\n
(b) The term “cause” means (i) the Employee’s willful and continued
\n failure substantially to perform the Employee’s duties with the Company,
\n (ii) any material breach of this Agreement by Employee which is not
\n cured within thirty (30) days after notice from the Company thereof,
\n (iii) commission of any act of fraud, embezzlement or dishonesty by the
\n Employee, (iv) any act or omission which constitutes a breach of that
\n certain Sprint PCS Management Agreement dated July 17, 1998 (“the Sprint
\n Agreement”); or (v) any other intentional misconduct by the Employee
\n adversely affecting the business or affairs of the Company in a material
\n manner. The term “intentional misconduct by the Employee adversely
\n affecting the business or affairs of the Company” shall mean such
\n misconduct that is detrimental to the business or the reputation of the
\n Company as it is perceived both by the general public and the
\n telecommunications industry.<\/p>\n
6. CONSEQUENCES OF TERMINATION.<\/p>\n
(a) CONSEQUENCES OF TERMINATION FOR CAUSE. If the Employee’s employment
\n is terminated for cause, (i) this Agreement terminates immediately, (ii)
\n except as may have vested or accrued or been paid or become payable
\n prior to the date of such termination or otherwise required under
\n applicable law, from and after such date, the Company shall be under no
\n obligation to pay the Employee any compensation (base salary or bonus)
\n pursuant to this Agreement, and (iii) the Employee’s benefits and rights
\n under any Benefit Plan shall be paid, retained or forfeited in
\n accordance with the terms of such plan; provided, however, that Employer
\n shall have no obligation to make any payments toward these benefits for
\n Employee from and after termination.<\/p>\n
(b) CONSEQUENCES OF TERMINATION ON EMPLOYEE’S DEATH OR DISABILITY. If
\n the Employee’s employment is terminated because of the Employee’s death
\n or disability, (i) this Agreement terminates immediately, (ii) the
\n Employee or his legal representative or estate, as the case may be, will
\n be entitled to receive any base salary due to the Employee through the
\n last day of employment, plus any accrued but unpaid bonus, to which the
\n Employee may have been entitled on the last day of employment, but had
\n not yet received, and (iii) the Employee’s benefits and rights under any
\n Benefit Plan shall be paid, retained or forfeited in accordance with the
\n terms of such plan; provided, however, that Employer shall have no
\n obligation to make any payments toward these benefits for Employee from
\n and after termination.<\/p>\n
(c) CONSEQUENCES OF TERMINATION FOR ANY REASON OTHER THAN FOR CAUSE OR
\n EMPLOYEE’S DEATH OR DISABILITY.<\/p>\n
6<\/p>\n
7<\/p>\n
(1) If the Employee’s employment is terminated, prior to September
\n 30, 2001, for any reason other than for cause or Employee’s death
\n or disability, (i) the Company will pay the Employee, in full
\n satisfaction of all of its compensation (base salary and bonus)
\n obligations under this Agreement, an amount (the “Termination
\n Payment”) equal to the sum of any base salary due to the Employee
\n through the last day of employment, plus any accrued but unpaid
\n bonus, to which the Employee may have been entitled on the last day
\n of employment, but not yet received; (ii) in the event of
\n termination without cause, the Company will pay the Employee
\n severance pay equal to six (6) months’ base salary; and (iii) the
\n Employee’s benefits and rights under any Benefit Plan, other than
\n any basic health and medical benefit plan, shall be paid, retained
\n or forfeited in accordance with the terms of such plan; provided,
\n however, that Employer shall have no obligation to make any
\n payments toward these benefits for Employee from and after
\n termination.<\/p>\n
(2) The Termination Payment<\/p>\n
a. will be in addition to any salary and bonus otherwise paid
\n during the fiscal year in which the Termination Event occurs;<\/p>\n
b. will be subject to offset for any advances, amounts
\n receivable, loans (except for the loan in subsection 7(b)
\n herein), including accrued interest, outstanding on the date
\n of the Termination Event; and<\/p>\n
c. will not be subject to offset on account of any
\n remuneration paid or payable to the Employee for any
\n subsequent employment the Employee may obtain, whether during
\n or after the period during which the Termination Payment is
\n made, and the Employee shall have no obligation whatever to
\n seek any subsequent employment.<\/p>\n
(3) For purposes of this Agreement, the term “Termination Event”
\n shall mean (i) the Employee’s receipt of a Non-Continuation Notice
\n from the Company, or, (ii) termination of the Employee’s employment
\n by the Company for any reason other than for cause or the
\n Employee’s death or disability, or (iii) the Employee’s submission
\n of a Non-Continuation Notice to the Company notifying the Company
\n of the Employee’s voluntary termination of employment.<\/p>\n
a. “Non-Continuation Notice” means written notice from the
\n Employee or the Company to the other that the Employee or<\/p>\n
7<\/p>\n
8<\/p>\n
the Company does not wish to continue the Employee’s
\n employment hereunder.<\/p>\n
7. EMPLOYEE’S OFFICE\/RELOCATION. Initially, the Employee’s office will be
\nlocated in the Company’s offices in Lubbock, Texas. In the event the Employee
\nrelocates to a location outside the San Antonio, Texas, area, the Company will<\/p>\n
(a) pay or reimburse the Employee for reasonable relocation expenses;
\n including (i) two (2) house-hunting trips not to exceed $1,000.00 per
\n trip, (ii) the reasonable cost to pack, transport, and unpack Employee’s
\n household goods and vehicles, (iii) real estate sales commission up to
\n six percent (6%) real estate commission paid in connection with the sale
\n of Employee’s current residence, (iv) six (6) months’ temporary housing
\n expense, not to exceed $1,500.00 per month, and (v) $2,500.00 to cover
\n incidental expenses related to the relocation; and<\/p>\n
(b) upon Employee’s providing the Company with written notice as to
\n Employee’s intent to relocate, loan Employee $100,000.00 for a period of
\n fifteen (15) years at the Wall Street Journal prime rate of interest
\n then in effect.<\/p>\n
(1) The loan shall be payable in equal monthly installments of
\n principal and interest until paid in full, said payments beginning
\n one (1) year after the date the loan is advanced, for a loan
\n amortization period of fourteen (14) years.<\/p>\n
(2) If Employee’s employment with the Company terminates, prior to
\n September 30, 2001, for any reason, the loan, plus any accrued
\n interest, is due and payable within two (2) years after the date of
\n termination.<\/p>\n
(3) The loan shall be secured by Employee’s Stock Options provided
\n in this Agreement.<\/p>\n
8. NON-COMPETITION BY EMPLOYEE. During the term of this Agreement, the
\nEmployee shall not, directly or indirectly, either as an Employee, Employer,
\nConsultant, Agent, Principal, Partner, Corporate Officer, Director or in any
\nother individual or representative capacity, engage or participate in any
\nbusiness that is in competition in any manner whatever with the business of the
\nCompany. For these purposes, the business of the Company is the PCS business,
\nincluding all aspects of PCS, within the Service Area as that term is defined in
\nthe Schedule of Definitions referred to in and incorporated by reference into
\nthe Sprint Agreement. Furthermore, upon the expiration of this Agreement or the
\ntermination of this Agreement, prior to September 30, 2001, for any reason, the
\nEmployee expressly agrees not to engage or participate, directly or indirectly,
\neither as an Employee, Employer, Consultant, Agent, Principal, Partner,
\nStockholder, Corporate Officer, Director or in any other individual or
\nrepresentative capacity, in any business located within and\/or doing business
\nwithin the Service Area as defined above, that is in competition with the
\nbusiness of the Company for a period of two (2) years. The parties agree that
\nthe Company has a legitimate interest in protecting the business and goodwill of
\nthe Company that has developed in the areas of the Company’s business and in the
\ngeographical areas<\/p>\n
8<\/p>\n
9<\/p>\n
of this Covenant Not To Compete as a result of the operations of the Company.
\nThe parties agree that the Company is entitled to protection of its interests in
\nthese areas. The parties further agree that the limitations as to time,
\ngeographical area, and scope of activity to be restrained do not impose a
\ngreater restraint upon Employee than is necessary to protect the goodwill or
\nother business interest of the Company. The parties further agree that in the
\nevent of a violation of this Covenant Not To Compete, that the Company shall be
\nentitled to the recovery of damages from Employee and\/or an injunction against
\nEmployee for the breach or violation or continued breach or violation of this
\nCovenant. This Covenant Not To Compete shall not prohibit the Employee from
\nowning or purchasing any corporate securities that are regularly traded on a
\nrecognized stock exchange or over-the-counter market.<\/p>\n
9. CONFIDENTIAL INFORMATION OF EMPLOYEE. During the time of the Employee’s
\nemployment by the Company, the Company will provide to Employee certain
\ninformation that is confidential to the Company. This confidential information
\nwill include, but not be limited to, client, customer and\/or mailing lists as
\nwell as marketing information as well as information containing other contacts
\nwithin the PCS and telecommunications industries. Such information may also
\ninclude information that may constitute a trade secret as to the Company. This
\nconfidential information belongs to the Company and is vital to the Company’s
\nbusiness. The disclosure of this confidential information could be harmful to
\nthe Company’s business.<\/p>\n
10. NO DISCLOSURE OF CONFIDENTIAL INFORMATION. The parties agree that the
\nEmployer has a legitimate interest in protecting this confidential information
\nof the Company. The parties agree that the Company is entitled to protection of
\nits interests in this confidential information. Employee agrees that Employee
\nwill not disclose to anyone or any third party any of the confidential
\ninformation referred to in the preceding paragraph. Employee acknowledges that
\nthe disclosure of the above described confidential information belonging to the
\nCompany to anyone or any third party could cause monetary loss and damages to
\nthe Company. The parties further agree that in the event of a violation of this
\ncovenant against non-disclosure of confidential information, that the Company
\nshall be entitled to a recovery of damages from Employee and\/or an injunction
\nagainst Employee for the breach or violation or continued breach or violation of
\nthis covenant.<\/p>\n
11. EXCEPTIONS TO NON-DISCLOSURE AND NON-COMPETITION COVENANTS.
\nNotwithstanding anything herein to the contrary or apparently to the contrary,
\nthe following shall not be a violation or breach of the non-disclosure of
\nconfidential information and\/or the non-competition covenants contained in this
\nAgreement. Employee may invest in an entity involved in the PCS or
\ntelecommunications industries, provided that Employee is only an investor and
\nsuch investment does not in any way involve actual active control of or actual
\nactive management of the entity. The mere investment by Employee in an entity
\ninvolved in the PCS or telecommunications industries, without any control and
\nwithout any management of the entity, will not be a violation of the
\nnon-disclosure and non-competition covenants contained in this Agreement. While
\nsuch passive role shall not be deemed to be a breach of these covenants,
\nEmployee shall not disclose any trade secrets of the Company to any third party
\nor entity.<\/p>\n
9<\/p>\n
10<\/p>\n
12. DISPUTES. The Company and Employee agree to the following in regard to
\nany disputes between them arising under this Agreement.<\/p>\n
(a) MEDIATION. The Company and Employee agree to mediate any dispute
\n arising under this Agreement. In the event of any dispute, the parties,
\n within thirty (30) days of a written request for mediation, shall
\n attend, in good faith, a mediation in order to make a good faith
\n reasonable effort to resolve any dispute arising under this Agreement.
\n The parties shall attempt, in good faith, to agree to a mediator. If
\n unable to so agree, the parties, in that event, will move to arbitration
\n as provided in this Agreement and there will be no mediation. If this
\n good faith mediation effort fails to resolve any dispute arising under
\n this Agreement, the Company and Employee agree to arbitrate any dispute
\n arising under this Agreement. This arbitration shall occur only after
\n the mediation process described herein.<\/p>\n
(b) ARBITRATION. The Company and Employee agree, as concluded by the
\n parties to this Agreement on the advice of their counsel, and as
\n evidenced by the signatures of the parties and of their respective
\n attorneys, it is agreed that all questions as to rights and obligations
\n arising under the terms of this Agreement are subject to arbitration and
\n such arbitration shall be governed by the provisions of the Texas
\n General Arbitration Act (Texas Civil Practice and Remedies Code Section
\n 171.001 et seq as it may be amended from time to time).<\/p>\n
(c) DEMAND FOR ARBITRATION. If a dispute should arise under this
\n Agreement, either party may within thirty (30) days make a demand for
\n arbitration by filing a demand in writing with the other.<\/p>\n
(d) APPOINTMENT OF ARBITRATORS. The parties to this Agreement may agree
\n on one arbitrator, but in the event that they cannot so agree, there
\n shall be three arbitrators, one named in writing by each of the parties
\n within thirty (30) days after demand for arbitration is made, and a
\n third to be chosen by the two so named. The arbitrators among themselves
\n shall appoint a presiding arbitrator. Should either party fail to timely
\n join in the appointment of the arbitrators, the arbitrators shall be
\n appointed in accordance with the provisions of Texas Civil Practice and
\n Remedies Code Section 171.041.<\/p>\n
(e) HEARING. All arbitration hearings conducted under the terms of this
\n Agreement, and all judicial proceedings to enforce any of the provisions
\n of this Agreement, shall take place in Lubbock County, Texas. The
\n hearing before the arbitrators of the matter to be arbitrated shall be
\n at the time and place within that County selected by the arbitrators or
\n if deemed by the arbitrators to be more convenient for the parties or
\n more economically feasible, may be conducted in any city within the
\n Service Area as defined herein or within the State of Texas.<\/p>\n
10<\/p>\n
11<\/p>\n
(f) ARBITRATION AWARD. If there is only one arbitrator, his or her
\n decision shall be binding and conclusive. The submission of a dispute to
\n the arbitrators and the rendering of their decision shall be a condition
\n precedent to any right of legal action on the dispute. A judgment
\n confirming the award of the arbitrators may be rendered by any court
\n having jurisdiction; or the court may vacate, modify, or correct the
\n award in accordance with the provisions of the Texas General Arbitration
\n Act (Texas Civil Practice and Remedies Code Section 171.087 et seq as it
\n may be amended from time to time).<\/p>\n
(g) COSTS OF ARBITRATION. The costs and expenses of arbitration,
\n including the fees of the arbitrators, shall be advanced by the Company,
\n but will ultimately be borne by the losing party or in such proportions
\n as the arbitrators shall determine.<\/p>\n
(h) CONDUCT OF ARBITRATION. Any arbitration brought under the terms of
\n this Agreement shall be conducted in the following manner:<\/p>\n
(1) Time Limitations. The parties agree that the following time
\n limitations shall govern the arbitration proceedings conducted
\n under the terms of this Agreement:<\/p>\n
(a) Any demand for arbitration must be filed within thirty
\n (30) days of the date the mediation is deemed unsuccessful, or
\n thirty (30) days after the date of the written request for
\n mediation, whichever is later.<\/p>\n
(b) Each party must select an arbitrator within thirty (30)
\n days of receipt of notice that an arbitration proceeding has
\n commenced. In the event that no such selection is made, the
\n arbitrator selected by the other party may conduct the
\n arbitration proceeding without selecting any other arbitrator.<\/p>\n
(c) The hearing must be held within sixty (60) days of the
\n date on which the third arbitrator is selected.<\/p>\n
(d) Hearing briefs must be submitted no later than ten (10)
\n days after the hearing.<\/p>\n
(e) The arbitration award must be made within thirty (30) days
\n of the receipt of hearing briefs.<\/p>\n
(2) Discovery in Arbitration Proceedings. The parties agree that
\n discovery may be conducted in the course of the arbitration
\n proceeding in accordance with the following provisions:<\/p>\n
11<\/p>\n
12<\/p>\n
(a) Each party may notice no more than three (3) depositions
\n in total, including both witnesses adherent to the adverse
\n party and third-party witnesses.<\/p>\n
(b) Each party may serve no more than twenty-five (25)
\n requests for admission on the other party. No requests may be
\n served within ten (10) days of the date of hearing, unless the
\n parties otherwise stipulate. All requests for admission shall
\n be responded to within ten (10) days of service of the
\n requests, unless the parties otherwise stipulate.<\/p>\n
(c) Each party may serve no more than fifty (50)
\n interrogatories on the other party. No interrogatory shall
\n contain subparts, or concern more than one topic or subject of
\n inquiry. Interrogatories may not be phrased so as to
\n circumvent the effect of this clause. No interrogatories may
\n be served within ten (10) days of the date of hearing, unless
\n the parties otherwise stipulate. All interrogatories shall be
\n responded to within ten (10) days of service of the
\n interrogatories, unless the parties otherwise stipulate.<\/p>\n
(d) Each party may serve no more than ten (10) requests for
\n production of documents on the other party. No request for
\n production of documents shall contain subparts, or seek more
\n than one type of document. Requests for production of
\n documents may not be phrased so as to circumvent the effect of
\n this clause. Unless the parties otherwise stipulate, requests
\n for production of documents may not be served within ten (10)
\n day of the date of hearing, and all requests for production of
\n documents shall be responded to within ten (10) days of
\n service of the requests.<\/p>\n
(e) If any party contends that the other party has served
\n discovery requests in a manner not permitted by this Section,
\n or that the other party’s response to a discovery request is
\n unsatisfactory, the party may request the presiding arbitrator
\n to resolve such discovery disputes. The presiding arbitrator
\n shall prescribe the procedure by which such disputes are
\n resolved. Any discovery dispute may be handled by telephone
\n conference among the parties and the presiding arbitrator.<\/p>\n
13. SUCCESSORS; BINDING AGREEMENT; ASSIGNMENT. The Company shall require
\nany successor (whether direct or indirect, by purchase, merger, consolidation or
\notherwise) to all or substantially all of the business or assets of the Company
\nto expressly assume and agree in writing to perform this Agreement in the same
\nmanner and to the same extent that the Company would be required to perform it
\nif no such succession had taken place, provided that the Employee need only be a
\nsenior executive officer with the<\/p>\n
12<\/p>\n
13<\/p>\n
authority, powers and responsibilities set forth in Section 1 hereof with
\nrespect to the subsidiary or subdivision which operates the business of the
\nCompany as it exists on the date of such business combination. Failure of the
\nCompany to obtain such express assumption and agreement at or prior to the
\neffectiveness of any such succession shall be a breach of this Agreement and
\nshall entitle the Employee to compensation and benefits from the Company in the
\nsame amount and on the same terms to which the Employee would be entitled
\nhereunder if the Company terminated the Employee’s employment without Cause,
\nexcept that for purposes of implementing the foregoing, the date on which any
\nsuch succession becomes effective shall be deemed the date of termination. As
\nused in this Agreement, “Company” shall mean the Company as hereinbefore defined
\nand any successor to its business or assets as aforesaid which assumes and
\nagrees to perform this Agreement by operation of law, or otherwise. The Company
\nmay not assign this Agreement, except in connection with, and to the acquiror
\nof, all or substantially all of the business or assets of the Company, provided
\nsuch acquiror expressly assumes and agrees in writing to perform this Agreement
\nas provided in this Section. The Employee may not assign his rights or delegate
\nhis duties or obligations under this Agreement.<\/p>\n
14. NOTICE. Any notices or other communications required or permitted to be
\ngiven hereunder shall be in writing and shall be deemed to have been duly made
\nor given when hand delivered, one (1) business day after being transmitted by
\ntelecopier (confirmed by mail) or sent by overnight courier against receipt, or
\nfive (5) days after being mailed by registered or certified mail, postage
\nprepaid, return receipt requested, to the party to whom such communication is
\ngiven at the address set forth below, which address may be changed by notice
\ngiven in accordance with this Section:<\/p>\n
If to the Company: Alamosa PCS LLC
\n P. O. Box 65700
\n Lubbock, Texas 79464-5700
\n Attn: David E. Sharbutt, Chairman<\/p>\n
With Copy to: Jack McCutchin, Jr.
\n Crenshaw, Dupree & Milam, L.L.P.
\n P. O. Box 1499
\n Lubbock, Texas 79408-1499<\/p>\n
If to the Employee: Jerry Brantley
\n 14639 Snip
\n San Antonio, Texas 78248<\/p>\n
With Copy to: Paul T. Curl
\n 300 Convent, Suite 2500
\n San Antonio, Texas 78205<\/p>\n
15. MISCELLANEOUS.<\/p>\n
(a) SEVERABILITY. If any provision of this Agreement shall be declared
\n to be invalid or unenforceable, in whole or in part, such invalidity or<\/p>\n
13<\/p>\n
14<\/p>\n
unenforceability shall not affect the remaining provisions hereof which
\n shall remain in full force and effect.<\/p>\n
(b) NO ORAL MODIFICATION, WAIVER OR DISCHARGE. No provisions of this
\n Agreement may be modified, waived or discharged orally, but only by a
\n waiver, modification or discharge in writing signed by the Employee and
\n such officer as may be designated by the Board of Managers of the
\n Company to execute such a waiver, modification or discharge. No waiver
\n by either party hereto at any time of any breach by the other party
\n hereto of, or failure to be in compliance with, any condition or
\n provision of this Agreement to be performed by such other party shall be
\n deemed a waiver of similar or dissimilar provisions or conditions at the
\n time or at any prior or subsequent time. No agreements or
\n representations, oral or otherwise, express or implied, with respect to
\n the subject matter hereof have been made by either party which are not
\n expressly set forth in this Agreement or in the documents attached as
\n Exhibits to this Agreement.<\/p>\n
(c) ENTIRE AGREEMENT. This Agreement and the Exhibits attached hereto
\n represent the entire agreement of the parties and shall supersede any
\n and all previous contracts, arrangements or understandings, express or
\n implied, between the Employee and the Company with respect to the
\n subject matter hereof.<\/p>\n
(d) SECTION HEADINGS FOR CONVENIENCE ONLY. The section headings herein
\n are for the purpose of convenience only and are not intended to define
\n or limit the contents of any section.<\/p>\n
(e) EXECUTION IN COUNTERPARTS. The parties may sign this Agreement in
\n counterparts, all of which shall be considered one and the same
\n instrument.<\/p>\n
(f) GOVERNING LAW AND PERFORMANCE. This Agreement shall be governed by
\n the laws of the State of Texas and shall be deemed to be executed in and
\n performance called for in Lubbock, Lubbock County, Texas.<\/p>\n
* * * * *<\/p>\n
14<\/p>\n
15<\/p>\n
DATED this 2nd day of October, 1998, to be effective October 1, 1998.<\/p>\n
COMPANY<\/p>\n
ALAMOSA PCS LLC<\/p>\n
By \/s\/ David E. Sharbutt
\n ————————————–
\n DAVID E. SHARBUTT, Chairman<\/p>\n
EMPLOYEE<\/p>\n
\/s\/ Jerry W. Brantley
\n —————————————–
\n JERRY W. BRANTLEY<\/p>\n
Approved as to the mediation and arbitration provisions in Paragraph 12 above.<\/p>\n
CRENSHAW, DUPREE & MILAM, L.L.P.<\/p>\n
By \/s\/ Jack McCutchin, Jr.
\n ————————————–
\n JACK McCUTCHIN, JR.
\n Attorneys for Alamosa PCS LLC<\/p>\n
\/s\/ Paul T. Curl
\n —————————————–
\n PAUL T. CURL
\n Attorney for Employee<\/p>\n
Attachment: Exhibit “A” – The Milestones<\/p>\n
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