**EXHIBIT 10.1**

 

**MASTER SITE AGREEMENT**

 

**THIS MASTERSITE AGREEMENT**(hereinafter referred to as this “MSA”), is made as of the 15th day of October,2003 (the “MSA Commencement Date”), by and between GoldenState Towers, LLC, aDelaware limited liability company, and its subsidiaries, affiliates,successors and permitted assigns (hereinafter collectively referred to as“GoldenState”) and UbiquiTel Leasing Company, a Delaware corporation, and itssuccessors and permitted assigns (hereinafter referred to as the “User”).

 

WHEREAS, as of the MSACommencement Date, GoldenState proposes to acquire the Towers located at theSites listed on Exhibit IA to this MSA, and

 

WHEREAS, User is a providerof certain wireless communications services in the United States; and

 

WHEREAS, as of the MSACommencement Date, User occupies space on the Towers and Ground Space andwishes to continue to occupy the space on the Towers; and

 

WHEREAS, GoldenState andUser desire to enter into this MSA which will establish the general terms andconditions by which User will occupy the space on the Towers; and

 

WHEREAS, GoldenState andUser will enter into a Site Agreement substantially in the form of Schedule“I” attached hereto and by reference made a part hereof which willestablish the terms for use of each Site.

 

NOW, THEREFORE, for valuableconsideration, the receipt, adequacy and sufficiency of which are herebyacknowledged, the parties hereby agree as follows:

 

1.                                       MSA.

 

(a)                                  Basic Terms and Conditions.  This MSA sets forth the basic terms and conditions upon which the Sitesshall be leased, licensed, subleased or sublicensed to User.  User and GoldenState shall execute SiteAgreements for each of the Sites at the time at which GoldenState acquires aSite pursuant to the Asset Purchase Agreement, which shall be attached to thisMSA and numbered sequentially, beginning as Schedule I-1, Schedule I-2, etc.,and by reference made a part hereof. The list of Sites governed by this agreement shall be updated by Userand GoldenState to accurately reflect the number and the identity of the Siteswhich GoldenState acquires, if any, as soon as practicable after eachacquisition has been completed.  Suchupdated list(s) shall be attached hereto as Exhibit IB and by this referencemade a part hereof.  Each Site Agreementshall identify a particular Site made subject to this MSA and more fully setforth specific terms particular to that Site. In the event of a conflict or inconsistency between the terms of thisMSA and a Site Agreement, the terms of this MSA shall govern and control forthat Site.

 

(b)                                 MSA Term.  The term ofthis MSA shall commence on the MSA Commencement Date and shall continue for two(2) years following the MSA Commencement Date, unless earlier terminated inaccordance with the provisions of this MSA.

 

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(c)                                  Effectiveness of Terms and Conditions.  The terms and conditions of this MSA shall remain in effect, withrespect to each individual fully executed Site Agreement, for so longthereafter as any such Site Agreement remains in effect in accordance with theremaining provisions of this MSA.

 

(d)                                 Renewal Terms.  Notwithstandingthe foregoing, the MSA Initial Term shall automatically renew for oneimmediately successive period of two (2) years unless GoldenState has givenUser no less than ninety (90) days prior written notice of its intention toterminate this MSA effective as of the end of the MSA Initial Term.

 

2.                                       Demise.

 

(a)                                  Grant.  On the MSACommencement Date, GoldenState grants to User or its Affiliate, UbiquiTelOperating Company, a Delaware corporation (“UOC”), at each Site:

 

(i)            the exclusive right to install, operate, maintain, andrepair the Equipment identified in each Site Agreement (as same may be modifiedin accordance with the terms of this MSA) on the Tower Space and on the GroundSpace; and

 

(ii)           the nonexclusive right and access on, over, along, andacross all portions of the Site for access, ingress, and egress to theFacilities solely for installing, operating, maintaining, repairing andreplacing the Equipment for the purposes of providing communications services.

 

(b)                                 Limitations.

 

(i)                                     User shall operate the Equipment and shallensure that UOC operates the Equipment in accordance with all federal, state,and local laws and regulations that pertain to the use and operation thereof.

 

(ii)                                  User shall not share and shall ensure thatUOC shall not share its use and/or occupancy rights to the Tower Space and/orthe Ground Space with any third party business entity(ies) or concern(s).  The parties agree that Resale Arrangements andRoaming Arrangements do not constitute sharing User’s use and/or occupancyrights to the Tower Space and/or the Ground Space.

 

3.                                       Prime Document.

 

Each Site Agreement shall besubject and subordinate to all of the terms and conditions of the Prime Documentfor the Site, which is incorporated into the Site Agreement for the Site byreference and a copy of which will be attached appropriately to each SiteAgreement as Exhibit B”, subject to redaction of the financial terms set forththerein or as otherwise required by confidentiality and non-disclosureprovisions contained therein.  Useracknowledges that it has received a copy of the Prime Document for each Site,and that this MSA and the related Site Agreements are subordinate to the PrimeDocument.  User has read and agrees tocomply with the terms, conditions and laws applicable to each Site and toensure that UOC shall comply with the terms, conditions and laws applicable toeach Site.

 

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4.                                       Conditions Precedent.

 

(a)                                                    Consent of Prime Landlord.  IfGoldenState is party to a Prime Document for a Site and GoldenState advisesUser that the Site Agreement for such Site is contingent upon GoldenStateobtaining consent from the Prime Landlord to such Site Agreement, then suchSite Agreement shall be contingent upon GoldenState obtaining the consent.  GoldenState shall use commerciallyreasonable efforts to obtain such consent promptly after the Site AgreementExecution Date.  User shall cooperateand shall ensure that UOC cooperates with GoldenState in GoldenState’s effortsto obtain the consent of the Prime Landlord. Notwithstanding the foregoing, neither party shall be required to payany form of consideration to obtain the approval or consent of any Prime Landlordunder a Prime Document, nor shall either party be required to take commerciallyunreasonable actions to obtain such approval or consent.

 

(b)                                                   Conditions Precedent to Site AgreementCommencement Date.  Each Site Agreement is further contingentupon User being able to satisfy the following conditions prior to the MSACommencement Date.  If any of theconditions set forth below are not satisfied as of the MSA Commencement Date,User shall have the right to terminate the Site Agreement without penalty orcontinuing liability for payment of Base Rent not accrued prior to thetermination date for the affected Site, except for any indemnity obligations,including without limitation, environmental indemnity and tax obligations andany other obligation arising prior to the date of termination, by givingGoldenState written notice thereof referencing this Section 4(b) prior to theMSA Commencement Date.  In the event nosuch notice is received from User prior to the MSA Commencement Date, thefollowing conditions shall be deemed to have been satisfied by User.  If User elects to terminate the SiteAgreement pursuant to this Section 4(b), the Site Agreement shall not becomeeffective.

 

(i)                                  Approvals.  User shall ensure that it orUOC obtains all Approvals necessary to permit User’s and UOC’s intended use ofthe Site.  User agrees to usecommercially reasonable efforts to secure such Approvals and upon User’srequest, GoldenState shall cooperate, at User’s sole cost and expense, withUser in its effort to obtain such Approvals; provided, however that,notwithstanding the foregoing, (A) GoldenState shall not be required to expendany funds or undertake any liability or obligation in connection with suchcooperation, (B) GoldenState may elect to obtain such required approvals orpermits on User’s or UOC’s behalf, and (C) in no event may User encourage,suggest, participate in or permit the imposition of any restrictions whatsoeveron GoldenState’s current or future use or ability to lease, sublease, orlicense space at the Site as part of or in exchange for obtaining any suchapproval or permit.  User shall ensurethat UOC does not encourage, suggest, participate in or permit the impositionof any restrictions whatsoever on GoldenState’s current or future use or abilityto lease, sublease, or license space at the Site as part of or in exchange forobtaining any such approval or permit. In the event that User notifies GoldenState that (1) any application foran Approval is rejected, (2) an Approval is canceled, expires, lapses, or isotherwise withdrawn or terminated for any reason whatsoever prior toinstallation of the Equipment by User, or (3) any application for Approval isnot likely to be obtained or approved, as determined in User’s sole good faithdiscretion, the Approvals shall be deemed to not have been obtained by User.

 

(ii)                               Radio Frequency Propagation Test. User shall determine, in its sole discretion, that the results of anyradio frequency propagation tests are satisfactory, such that User is able touse the Site for User’s intended use.

 

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(iii)                            Utilities and Access. User shall determine, in its sole discretion, that (A) telephone andelectric utilities are available at the Site of sufficient capacity to accommodateUser’s Equipment and (B) ingress and egress is available to and from the Siteand to and from a publicly dedicated road.

 

(iv)                           Tower Capacity. User shall determine in its sole discretion that the Tower is ofsufficient capacity to accommodate the load requirements of User’s Equipment.

 

(v)                              Title.  User shall determine in itssole discretion that the status of title as to the Property granted herein isacceptable to User.

 

(vi)                           Hazardous Substances. User shall determine in its sole discretion that the Site and Propertyare free of all Hazardous Substances.

 

5.                                       Site Agreement Term.

 

(a)                                                    Site Agreement Initial Term. Provided the applicable conditions and contingencies set forth inSection 4 of this MSA have been satisfied, each Site Agreement Initial Termshall begin on the MSA Commencement Date and shall end ten (10) yearsthereafter unless renewed pursuant to Section 5(b).

 

(b)                                                   Site Agreement Renewal Term. Provided the Prime Document for the Site remains in effect and has notexpired or been terminated, and User is not in default of any of itsobligations hereunder or under the Site Agreement, User shall have the optionof extending a Site Agreement for up to three (3) additional five (5) yearRenewal Terms.  Such Renewal Terms shallbe deemed automatically exercised without notice by User to GoldenState unlessUser gives GoldenState written notice of its intention not to exercise any suchoption at least ninety (90) days prior to the expiration of the then currentterm, in which case, the term of the Site Agreement shall expire at the end ofthe then-current Term.  Notwithstandingthe expiration of this MSA, the terms and conditions of this MSA shall continueto apply to each Site Agreement until the Site Agreement term, including anyRenewal Terms expires or terminates.

 

6.                                       Rent.

 

(a)                                                    Base Rent.  User shall pay the annualBase Rent specified in the applicable Site Agreement for the use of the Site.

 

(i)                                     The first monthly installment of Base Rent isdue and payable not later than the MSA Commencement Date.  If the Site Agreement Commencement Dateoccurs on a day other than the first day of a calendar month, User shall make aprorated monthly payment of the Base Rent payment for the first month of theSite Agreement Initial Term based upon the number of days in that month.

 

(ii)                                  Beginning in the first full month followingthe Site Agreement Commencement Date, Base Rent is to be paid in equal monthlyinstallments in advance on the first day of each month during the SiteAgreement Initial Term or any Renewal Term.

 

(iii)                               The Base Rent for each Site governed by thisMSA shall increase each year on the anniversary of the Site AgreementCommencement Date for that particular Site Agreement by an amount equal tothree percent (3%) of the immediately preceding year’s Base Rent.

 

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(iv)                              GoldenState and User acknowledge and agreethat the Base Rent pricing set forth in each Site Agreement is based on theusage specified in the Site Agreement and a total licensed Bandwidth of no morethan 55 megahertz (“MHz”) at each Site. The Base Rent is subject to increase in accordance with certain otherprovisions set forth in Section 7(b) if User transmits on more than 55 MHz ofBandwidth.

 

(v)                                 The Base Rent paid by User to GoldenStateshall be due without set-off, notice, or demand from GoldenState to User.

 

(vi)                              Any Base Rent or other payment made by Usershall contain a notation of the applicable GoldenState Site number applicableto the Site Agreement, which Site number is referenced in Section 1 of the SiteAgreement.  User may tender payment formore than one Site with one check, so long as the check is accompanied by alist of the applicable Sites identified by their Site number referenced inSection 1 of the Site Agreement and the amount allocated to each Site from theaggregate amount of such check.

 

(b)                                 Taxes.

 

(i)                                     Property Taxes. User shall pay or reimburse GoldenState for any increase in any taxes,fees and assessments directly attributable to the Equipment or User’s or UOC’suse of the Site (whether constituting a portion of real estate, sales, use,franchise fees or taxes or otherwise). If GoldenState receives a tax notification, GoldenState will promptlynotify User of User’s share of due taxes together with documentation supportingthe amount due and User shall submit payment to GoldenState within thirty (30)days after User’s receipt of such notification.

 

(ii)                                  Sales Taxes.  GoldenState shall beresponsible for billing, collecting, reporting, and remitting sales taxesdirectly on Base Rent payments received pursuant to this MSA and any SiteAgreement, if any.  User shall beresponsible for reimbursing GoldenState for all sales taxes billed related toBase Rent payments received pursuant to this MSA and any Site Agreement, suchreimbursement to be due and payable within thirty (30) days after GoldenState’sdelivery to User of a written invoice and copies of paid tax receiptsspecifying the payments made by GoldenState.

 

7.                                       Improvements by User.

 

(a)                                  Consent.  If User or UOC wishes (i) touse space at a Site in addition to the Facilities, (ii) to make anymodification to the Equipment that will result in the change of location,dimension, ratio of antennas to lines, windload capacity, loading and physicalspace occupied as set forth in the applicable Site Agreement, or (iii) toexpand the frequency channels or frequency bands on which the Equipmentoperates to exceed the limitation set forth in Section 6(a)(iv) of this MSA,User must first obtain GoldenState’s prior written consent to the proposedadditional use. User will submit an application to GoldenState for the proposedadditional use in accordance with Section 8(a) of this MSA.

 

(b)                                 Grant of Consent. GoldenState’s consent to the proposed additional use described inSection 7(a)(i) shall not be unreasonably withheld, conditioned, or delayed; provided,however, that such consent may be conditioned on, among other things,the availability of space and structural capacity and an increase in theportion of Base Rent attributable to that Site except where a change in thefrequency channels or frequency bands is required by the FCC.

 

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(c)                                  Additional Rent.  IfGoldenState grants its consent to the proposed additional use, GoldenState andUser shall negotiate in good faith to agree upon any additional portion of BaseRent for the Site to be paid to GoldenState as a result of the additional useof the Site.  No such additional use maybe made until the parties have agreed to the amount of such Base Rentincrease.  Upon such agreement, theparties will modify the Site Agreement, by amendment, to reflect the additionaluse and any increase in the Base Rent for that Site.

 

8.                                       Application Process.  Prior toperforming any Work, User shall follow and shall ensure that UOC follows theseprocedures:

 

(a)                                  Installation Plans  If theproposed Work will change the loading on a Tower or add frequency channels forbands such that the frequency channels or frequency band in use at a Site willexceed the limitation set forth in Section 6(a)(iv) of this MSA User shallsubmit and, to the extent that UOC plans to perform Work, ensure that UOCsubmits Installation Plans to GoldenState for approval at least fourteen (14)days before it plans to commence Work. User shall not perform and, to theextent that UOC plans to perform Work, shall ensure that UOCs shall not performany Work described in any Installation Plans required under this Section untilGoldenState has approved the Installation Plans.

 

(b)                                 Approval – Timing.  In eachinstance, GoldenState shall approve or disapprove the Installation Plans forthe Work within ten (10) days after receipt of the Installation Plans.  If GoldenState does not approve ordisapprove the Work within ten (10) days after receipt of the InstallationPlans, GoldenState shall be deemed to have approved the Installation Plans assubmitted.

 

(c)                                  Structural Analysis.  As acondition to its approval of the Work described in Section 8(a), within ten(10) days after receipt of the Installation Plans, GoldenState may request thatUser or User on behalf of UOC provide GoldenState with a StructuralAnalysis.  If GoldenState requires aStructural Analysis, with the request, GoldenState shall notify User of thestandards by which the Structural Analysis must be prepared.  User or User on behalf of UOC shall providethe Structural Analysis to GoldenState in substantial accordance withGoldenState’s requirements at User’s sole cost and expense.  GoldenState must provide its approval ordisapproval of the Installation Plans within five (5) Days after receipt of theStructural Analysis.

 

(d)                                 Permits.  User shallbe responsible for securing all necessary building and electrical permits fromany and all applicable governmental authorities prior to the commencement ofany construction or installation on the Site or shall ensure that theaforementioned are secured by UOC prior to the commencement of any constructionor installation on the Site by UOC. Copies of all permits issued to User and UOC shall be provided toGoldenState by User prior to the commencement of any constructionactivities.  Additionally, User agreesto provide and to ensure that UOC provides GoldenState with copies of allinspections and governmental sign-offs relating to User’s and UOC’sconstruction activities.

 

(e)                                  Standards of Work.  All Workshall be performed by User or User’s employees, contractors, subcontractors oragents in a good and workmanlike manner and User shall ensure that any Workperformed by UOC or UOC’s employees, contractors, subcontractors or agentsshall be performed in a good and workmanlike manner. GoldenState shall beentitled to require

 

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strict compliance with the Installation Plans approved by GoldenState,including specifications for the grounding of the Equipment.  All construction, installations andoperations in connection with this MSA by User shall comply with all applicableRules and Regulations of the FCC, the FAA and all applicable codes andregulations of the city, county, and state concerned.  GoldenState assumes no responsibility for the licensing,operation and maintenance of the Equipment. User shall ensure that UOC shall comply with all applicable Rules andRegulations of the FCC, the FAA and all applicable codes and regulations of thecity, county, and state concerned.

 

(f)                                    Costs.  All Workshall be performed at User’s sole cost and expense and User shall pay or Usershall ensure that UOC pays all invoices of labor and materialmen in a timelymanner.  User shall or it shall ensurethat UOC shall take any and all actions necessary or proper to prevent theimposition of any liens on the Property, GoldenState’s personal property orreal property interest, the Equipment located thereon or its interest in theSite.

 

(g)                                 Delivery of As-Built Drawings.  Upon the completion of any Work, but in no event later than twenty (20)days following completion of the Work, User shall or it shall ensure that UOCshall tender to GoldenState electronic and hard copies of As-Built Drawings,which will identify the date upon which the Work was performed, including thedate on which Work commenced and the date on which Work was completed.  Upon GoldenState’s receipt of the As-BuiltDrawings, the As-Built Drawings shall replace Exhibit A of the Site Agreementrelating to the affected Site.

 

9.                                       RF Emissions.

 

(a)                                  RF Compliance.             User will and shall ensure that UOC shallcooperate with GoldenState to facilitate any RF site analysis and to completeany corrective measures necessary to bring the Site as a whole into compliancewith the RF Standards.

 

(b)           RF Studies. GoldenState may commission or prepare a study at any Site to ensurecompliance with the RF Standards by User and UOC and any other users who haveinstalled communications equipment at the same Site, in the aggregate.  User will pay a pro-rated portion of anystudy commissioned or prepared under this Section based on the total price ofthe study divided by the total number of parties that have installedcommunications equipment at the subject Site at the time of the study.  User will pay its pro rata portion withinthirty (30) days after receipt after an invoice from GoldenState.

 

(c)                                  Individual Compliance.** **If GoldenState commissions or prepares a study under Section 9(b) andfinds that RF Emissions of User’s or UOC’s operations at a Site do not complywith the RF Standards, then GoldenState shall notify User of suchnon-compliance.  To the extentGoldenState notifies User of any noncompliance or User otherwise discovers thatthe RF Emissions of User’s or UOC’s operations at a Site do not comply with theRF Standards applicable to the Site, User shall immediately take any stepsnecessary to ensure that it is in compliance with the RF Standards applicableto the Site and shall immediately ensure that UOC takes any steps necessary toensure that UOC is in compliance with the RF Standards applicable to theSite.  GoldenState shall require allusers at the affected Site to take any and all steps necessary to ensure thatthey are in compliance with the RF Standards applicable to the Site.  User shall and shall ensure that UOC shallnotify GoldenState if it discovers that the RF Emissions of other users at aSite do not comply with the RF Standards applicable to the Site.

 

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(d)                                 Proper Training.** **User and GoldenState shall each ensure that, any of their respectivepersonnel, including, in the case of User, any UOC personnel,  accessing any Site will have proper occupationaltraining in the RF Standards, including, without limitation, training withregard to the risks of RF exposure and the means by which any risks may beminimized. Each party will maintain technical information supporting itscompliance with the RF Standards, and will make such information available tothe other party upon the other party’s request.

 

(e)                                  Reduction of RF Levels.** **User willcooperate and shall ensure that UOC cooperates to reduce RF exposure tomaintenance personnel at each Site by powering down the Equipment at the Siteor ceasing operations, as necessary, during periods of maintenance ormodification at each Site.  GoldenStatewill require other users at each Site to reduce RF exposure to maintenancepersonnel at each Site by powering down their communications equipment at aSite or ceasing operations, as necessary. Each party will provide the otherparty with as much advance notice of any such maintenance as is reasonablyavailable.

 

10.                                 Ingress and Egress.

 

(a)                                    Use.  Upon theSite Agreement Execution Date, GoldenState hereby grants to User or UOC,subject to the limitations set forth herein, in the Prime Document or in theapplicable Site Agreement:

 

(i)                                     the exclusive right to use the Tower Spaceand any Ground Space as specified in the Site Agreement, for the term hereof;and

 

(ii)                                  a non-exclusive easement for the term hereof,for ingress, egress, and access to the Tower Space and the Ground Spaceadequate to install, operate, maintain or service User’s Equipment, on atwenty-four (24) hour per day, seven (7) day per week basis (subject tolimitations contained in the Prime Document and subject to reasonable rules andlimitations established by GoldenState at any time during the term of the SiteAgreement), across (A) the Property in locations mutually agreed upon byGoldenState and User and (B) if the Property is leased, subleased, licensed orsublicensed by GoldenState, across the property of the Prime Landlord to theextent that and in the locations of the Prime Landlord granted ingress, egressand access easements to GoldenState in the Prime Document.

 

(b)                                   Emergency Access.  Theforegoing notwithstanding, User or UOC shall have access to the Site and theEquipment immediately and without notice in the event of an emergency, and Usershall notify and shall ensure that UOC shall notify GoldenState as soon aspracticable after User’s or UOC’s access during such emergency.

 

(c)                                    Site-Specific Security.  Any other security measures required for aparticular Site shall be set forth in the Site Agreement.

 

11.                                 Utilities, Cable Runs.

 

(a)                                    User Cables.  Upon theSite Agreement Execution Date, GoldenState hereby grants to User or UOC thenon-exclusive right to place any utilities and cable runs on the Tower, atlocations, consistent with Site Agreement or Installation Plans approved underSection 8(a).

 

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(b)                                   Utility Cables.  Uponthe Site Agreement Execution Date, GoldenState hereby grants to User or UOC anon-exclusive easement to the Ground Space for the term hereof to place anyutilities or cable runs on or bring utilities across the Property and if theProperty is leased, subleased, licensed or sublicensed by GoldenState, theproperty of the Prime Landlord to the extent and in the locations the PrimeLandlord granted utility and cable run easements.

 

(c)                                    Costs.  User shallpay the cost of all utility services necessary to install, operate, maintainand service the Equipment.

 

(d)                                   Meters.  If one doesnot exist, User shall install a separate electrical meter for User’s use withinthe Site, unless User obtains GoldenState’s prior written approval of analternate location.

 

(e)                                  Telephone Utilities.  User shallobtain and pay the cost of any and all telephone connections necessary to itsor UOC’s operations.  Installation oftelephone service shall be in compliance with the procedures for installationand maintenance of Equipment set forth herein.

 

(f)                                    No Resale or Swap.  Under no circumstances shall User or UOCresell or swap such utilities, backhaul or cable runs to or with any other useron the Property.

 

12.                                 User’s Covenants.

 

User covenants that from theSite Agreement Execution Date that the Equipment, and all installation,operation, modification, relocation and maintenance associated therewith, will:

 

(a)                                         Damage.  In no way damage the Site,the Tower, Property, any other structure or accessories thereto, any otheruser’s facilities or equipment, normal wear and tear excepted.  If damage occurs and such damage is causedby User, UOC, the Equipment, or User’s or UOC’s employees, agents, contractors,or subcontractors, then User shall be liable for repair or reimbursement ofrepair for said damages as applicable.

 

(b)                                        Prior Users.  Notinterfere with GoldenState’s operation on the Tower or the operations of anyPrior User.  In the event the Equipmentinterferes with the operation of GoldenState’s or a Prior User’s equipment,authorized frequency spectrum or signal strength, User shall or shall ensurethat UOC shall, within forty-eight (48) hours of notification, take all stepsnecessary to eliminate the interference, with the exception of ceasing User’sor UOC’s operations.  If User cannoteliminate or resolve such interference within the forty-eight (48) hour period,GoldenState shall have the right to require User turn off the Equipment andonly turn on the Equipment during off-peak hours in order to test whether suchinterference continues or it has been satisfactorily eliminated.  In the event that User is unable to resolveor eliminate such interference within thirty (30) days from the initialnotification of such interference, using commercially reasonable industrypractices, User will immediately remove or cease operations of theobjectionable Equipment at User’s sole cost. If User is unable to resolve or eliminate such interference, GoldenStateshall have the right to terminate the applicable Site Agreement upon writtennotice to User.  If User is unable toresolve or eliminate such interference after using all reasonable efforts, thenUser may terminate the applicable Site Agreement upon payment to GoldenState ofan amount equal to the Base Rent due to GoldenState for the remainder of theInitial Term or applicable Renewal Term, discounted by an annual percentagerate equal to ten percent (10%), within thirty (30) days of receipt of noticeof such termination by GoldenState. Such termination will release both parties from all liabilities, exceptfor any indemnity

 

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obligations, includingwithout limitation, environmental indemnity and tax obligations and any otherobligation arising prior to the date of termination.  Notwithstanding anything to the contrary, nothing in this Section12(b) shall be deemed or interpreted to authorize User or UOC to illegallytransmit on any frequency, to transmit on a channel or frequency not specifiedin the individual Site Agreement, to operate at variance from thespecifications in its FCC license or the FCC’s rules governing User’s and UOC’soperation of the Equipment, or to provide any protection to User or UOC frominterference from parties who are not users of the Towers.  In the event that any of User’s or UOC’soperations from a Site are governed by Part 15 of the FCC’s rules andregulations (47 C.F.R. § 15.1, et seq.), as updated, amended and/or superseded(“Part 15”), User’s rights pursuant to Section 12(b) with respect to such useshall only be enforceable with respect to interference which is not governed byPart 15.

 

(c)                                         Tower Lighting.  Notinterfere with the maintenance of the Tower and the Tower lighting system.

 

(d)                                        Maintenance.  Keep theEquipment in a state of good repair.

 

(e)                                         Identification.  Identifyall of the Equipment with metal tags fastened securely to the antenna bracketon the Tower and to each transmission line or cable.

 

(f)                                           Compliance with Laws.  Comply withall applicable rules and regulations of the FCC and all federal, state andlocal laws governing User’s use of the Site, including but not limited to Workperformed on any Tower and User shall ensure that UOC shall comply with allapplicable rules and regulations of the FCC and all federal, state and locallaws governing UOC’s use of the Site, including but not limited to Workperformed on any Tower.

 

(g)                                        Liens.         Payall invoices of labor and materialmen in a timely manner to prevent theimposition of any liens on the real property, GoldenState’s personal propertyor real property interest, the Equipment located thereon or its interest in theGround Space and Tower Space, except as specifically provided in this MSA. Inengaging any person or company to perform work at the Site, User shall requireand shall ensure that UOC requires a written waiver from any contractor,subcontractor, laborer or materialman of all rights under state material andmechanic lien laws or other laws to impose a lien on the real property or anyof GoldenState’s personal property or real property interest.  It shall be a material breach of this MSAand of any applicable Site Agreements if any lien other than any lienspecifically authorized by this MSA is filed against the Property, the Tower,the Site or the Equipment as a result of the acts or omissions of User or UOC,its employees, agents or contractors or subcontractors.  User shall indemnify and hold harmless GoldenStatefrom any claims by such person contracting with User or UOC and/or any claimsby the Prime Landlord and/or by any Prior Users and/or by any Subsequent Users,in addition, GoldenState may require User to immediately bond off or dischargeany such liens.

 

(h)                               Remove Equipment.  At its solecost and expense, upon the expiration or termination of a Site Agreement,remove all Equipment from the Property and restore the Tower and the Site toits original condition, normal wear and tear excepted.  If User does not remove and ensure that UOCremoves the Equipment on or prior to the expiration or termination of theapplicable Site Agreement and the failure to remove the Equipment is not due toa legal or natural impediment, User shall remove such Equipment within areasonable period thereafter provided User pays to GoldenState 150% of the BaseRent in effect during between the date of the expiration or termination of theSite Agreement and the date on which the Equipment is removed (“HoldoverPeriod”).  If neither User or UOCremoves the Equipment within thirty (30)

 

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days after the expiration ortermination of the Site Agreement, GoldenState may remove and store theEquipment, at User’s sole expense, and User shall reimburse GoldenState forsuch expenses upon demand.  IfGoldenState removes the Equipment, GoldenState shall not be responsible for anydamage to the Equipment during the removal and storage thereof unless caused bythe gross negligence of GoldenState. Notwithstanding the foregoing, User shall not be required to remove anyconcrete pads upon which User’s or UOC’s Equipment shelters or cabinets mayhave been located, underground conduits, antenna mounting brackets, groundingsystems or meters upon the expiration or termination of a Site Agreement,unless User, UOC or GoldenState installed the concrete pads for User’s or UOC’sexclusive use after the Site Commencement Date.

 

(i)                                                       Disclosure.  Withinthirty (30) days after the completion of the relocation of the Equipment orinstallation of additional equipment on the Site and, for any year in whichUser or UOC has performed a site audit on the Site or the Equipment or User’sor UOC’s operations at the Site have changed or been modified, or promptly followingreceipt of written request by GoldenState, User shall provide GoldenState witha copy of any applicable hazardous materials business plan which has or shallbe submitted to the applicable regulatory authority, such documentation shallinclude an accurate list of the number of batteries, battery model numbers,battery manufacturers, the number of cells in each battery and the amount ofsulfuric acid in User’s or UOC’s batteries on the Site in order for GoldenStateor, if the Property is leased, subleased, licensed or sublicensed byGoldenState, the Prime Landlord, to file such information with the EPA and anystate and local authorities as required by applicable law.  Further, within thirty (30) days after User’sreceipt of a written request from GoldenState, User will provide GoldenStatewith any other information and copies of documents relating to the Equipmentlocated on the Site which GoldenState or Prime Landlord may be required to filewith the FCC, FAA, EPA or any other governmental agencies.

 

(j)                                                       Special Considerations.  Inthe event that the Tower at a Site also serves an AM Station which requires adetuning apparatus to protect the array of the AM station, the detuningapparatus must be rendered inert during the actual installation of any additionalantennas to the structure.  At its ownexpense, User shall take all steps necessary to ensure the Tower’s compliancewith the rules concerning the AM Station. After User’s or UOC’s Work is completed, User, at its own expense,retain the detuning consultant designated by GoldenState to take proximitymeasurements of the Tower to adjust the detuning apparatus to accommodateUser’s or UOC’s antenna.

 

(k)                                                    No Sublease.  Notwithstandinganything to the contrary in Section 2(b)(ii), except as specifically authorizedunder this MSA, User shall not, directly or indirectly, (i) assign, share,sublease, swap or otherwise transfer to a third party less than all of User’sinterests or right in duplexing of signals, shared use rights, or digital oranalog interconnect facilities; (ii) share, sublease, swap or otherwisetransfer to a third party any interest or right in User’s Equipment, includingbut not limited to, coaxial cable, antennas, dishes and/or base stationequipment, or (iii) assign, share, sublease, swap or otherwise transfer to athird party less than all of its rights, title, or interests hereunder (itbeing understood that an assignment, sharing, sublease, swap or transfer of allof the rights, title or interests of User referred to in this Section 12(k)shall be permitted if it complies with Section 15(a)).  Notwitstanding anything to the contrary inthe MSA, UOC shall have no right to (i) assign, share, sublease, swap orotherwise transfer to a third party less than all of UOC’s interests or rightin duplexing of signals, shared use rights, or digital or analog interconnectfacilities; or (ii) share, sublease, swap or otherwise

 

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transfer to a third partyany interest or right in the Equipment, including but not limited to, coaxialcable, antennas, dishes and/or base station equipment.

 

13.                                 GoldenState’s Covenants.

 

GoldenState covenants thatduring the term of a Site Agreement it will:

 

(a)                                  Maintenance.  Maintainthe Tower and surrounding area in a workmanlike condition.

 

(b)                                 Quiet Enjoyment.  UponUser’s payment of Base Rent and performance of its covenants, but subject tothe terms of any Prime Document pursuant to which GoldenState has rights in andto the Property, and subject to any prior lien or encumbrance on the Property,ensure User’s quiet use and enjoyment of the Site.

 

(c)                                  Compliance with Laws.  Comply withall applicable rules and regulations of the FCC, FAA, and all federal, stateand local laws governing the Tower and Property.

 

(d)                                 Subsequent Users.  Not permitany Subsequent User to interfere with the operation of User’s Equipment,authorized frequency spectrum, signal strength or Equipment.  In the event any Subsequent User interfereswith the operation of User’s Equipment, authorized frequency spectrum, signalstrength or Equipment, GoldenState shall, notify the interfering SubsequentUser of its interfering operations within four (4) hours after User providesnotice of interference.  GoldenStateshall cause the interfering Subsequent User to take all steps reasonablynecessary to eliminate the interference, short of discontinuing operations,within forty-eight (48) hours after notification from GoldenState to suchSubsequent User.  If the interferingSubsequent User cannot eliminate or resolve the interference within theforty-eight (48) hour period, GoldenState shall require that the SubsequentUser turn off its equipment and only turn on its equipment during off-peakhours in order to test whether the interference continues or it has beensatisfactorily eliminated.  In the eventthat the interfering Subsequent User is unable to resolve or eliminate theinterference within thirty (30) days from the initial notification of theinterference, GoldenState shall cause the Subsequent User to immediately removeor cease operations of the objectionable equipment.  If GoldenState does not resolve the interference from theinterfering Subsequent User within thirty (30) days after the date on whichUser provided notice of the interference, in addition to any other remedies itmay have at law or in equity, on the thirty-first (31st) day afterthe date on which User provided notice of the interference, User may terminatethe affected Site Agreement, without penalty or continuing liability for paymentof Base Rent not accrued prior to the termination date for the affected Site,except for any indemnity obligations, including without limitation,environmental indemnity and tax obligations and any other obligation arisingprior to the date of termination.

 

14.                                 Compliance with Laws.

 

(a)                                  FCC and FAA Compliance. GoldenState acknowledges that it is aware of its obligations underSection 303 of the Communications Act of 1934 (47 U.S.C. 303), as amended, tomaintain the painting and illumination of Towers as prescribed by the FCC.  GoldenState shall timely pay any and allforfeitures assessed by the FCC for violations of such rules andrequirements.  GoldenState furtheragrees that it, and not User, and not UOC and not Sprint, shall be responsiblefor compliance with all Tower or building marking and lighting requirementswhich may be required by the FAA or the FCC. GoldenState shall indemnify and hold harmless

 

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User and Sprint from any and all fines or other liabilities caused byGoldenState’s failure to comply with governmental requirements. In the eventUser or UOC receives notice or otherwise obtains knowledge that a Tower is notin compliance with any legal requirement, User will immediately so notify GoldenStateand, to the extent necessary, will cooperate in all reasonable respects withGoldenState in curing the noncompliance. Notwithstanding the foregoing, if FAA or FCC compliance requires theremoval and/or relocation of the Tower, User may terminate the Site Agreementfor such Tower, without penalty or continuing liability for payment of BaseRent not accrued prior to the termination date for the affected Site, exceptfor any indemnity obligations, including without limitation, environmental indemnityand tax obligations and any other obligation arising prior to the date oftermination.

 

(b)                                 Hazardous Substances. User, UOC and GoldenState shall not use, store, dispose, or release anyHazardous Substances on the Property in violation of any applicable federal,state or local law, regulation, or order. GoldenState shall indemnify and save User harmless from and against anyand all claims, liabilities, demands, causes of action, losses, damages,orders, judgments, penalties, remediation costs, costs and expenses including,without limitation, attorneys fees and costs arising from GoldenState’smisrepresentation or violation or breach of warranty or breach of agreement,contained in this Section 14(b). Usershall indemnify and save GoldenState harmless from and against anyand all claims, liabilities, demands, causes of action, losses, damages,orders, judgments, penalties, remediation costs, costs and expenses including,without limitation, attorneys fees and costs arising from User’s or UOC’smisrepresentation or violation or breach of warranty or breach of agreement,contained in this Section 14(b).The obligations of this Section 14(b) shallsurvive the termination or expiration of this MSA and each Site Agreement for aperiod of five (5) years or until the expiration of the applicable statute oflimitations, whichever is earlier.

 

15.                                 Assignment or Subletting.

 

(a)                                  Assignment.

 

(i)                                     Either party may:

 

(A)assign all but not less than all of this MSA and transfer all but not less thanall of its rights, interests, or obligations under this MSA to an Affiliate orin connection with its merger, consolidation, or corporate reorganization, orthe sale of all or a substantial portion of its assets to a third party, or achange of control including as a result of transfers of its securities to anyassignee, and it will have no continuing obligation under this MSA as long assuch assignee is an ongoing concern with ongoing business and agrees in writingto be bound by and subject to the terms of this MSA and the assigning partyprovides notice to the other party of the assignment or transfer no less thanten (10) Business Days prior to the consummation of the assignment or transfer;and

*** ***

(B)without the consent or approval of the other Party (but upon notice to theother Party) assign as additional collateral to the lenders under its primarysecured credit facility or to any agent for said lenders, its rights,including, but not limited to, any rights to indemnification, under this MSA,provided that no such assignment shall or shall be deemed to

 

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imposeupon any such lender or agent, any responsibility for performance of any of itsobligations under this MSA or excuse the Party from its obligations under thisMSA.

*** ***

(ii)                                  Either Party may otherwise assign this MSAand transfer all but not less than all of its rights, interests, or obligationsunder this MSA to any assignee, and it will have no continuing obligation underthis MSA as long as such assignee is an ongoing concern with ongoing businessand agrees in writing to be bound by and subject to the terms of this MSA andthe assigning Party provides notice to the other Party of the assignment ortransfer no less than ten (10) Business Days prior to the consummation of theassignment or transfer.

*** ***

(iii)                               Any assignee of User under this Section 15will agree in writing to be bound by and subject to the terms of this MSA,except as otherwise expressly provided above.

 

(iv)                              Any subsequent assignment of this MSA will besubject to the same restrictions set forth in this Section 15.

 

(v)                                 UOC shall have no right to assign, sublet,sublicense or otherwise transfer the MSA and/or any or all of the SiteAgreements in whole or in part.

 

(b)                                 Successors.  This MSA will be binding uponthe successors, heirs, and assigns of the Parties.

 

(c)                                  Third Party Beneficiaries. Except as specifically provided in this MSA, none of the duties andobligations of either party under this MSA will in any way or in any manner bedeemed to create any liability to, or any rights in, any person or entity otherthan the other party to this MSA, including but not limited to UOC.

 

16.                                 Insurance; Risk of Loss.

 

(a)                                  Each Party shall obtain and maintaincomprehensive general liability insurance coverage in the amount of $1,000,000for personal injuries and/or property damage per occurrence with $2,000,000excess umbrella coverage, automobile liability insurance of $1,000,000 peroccurrence, and statutory workers’ compensation insurance coverage for the statutorylimit, but in no event less than $1,000,000 per occurrence.

 

(i)**                                    **User will ensure that each insurance policyobtained and maintained under this Section:

 

(A) lists GoldenState,GoldenState’s mortgagees, and the Prime Landlord, if applicable, each as anadditional insured; and

 

(B) provides that thepolicies cannot be canceled without at least twenty (20) days written notice toGoldenState.

 

(ii)                                  GoldenState will ensure that each insurancepolicy obtained and maintained under this Section:

 

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(A)lists User, User’s mortgagees and Sprint each as an additional insured; and

 

(B)provides that the policies cannot be canceled without at least twenty (20) dayswritten notice to User.

 

(iii)                               The insurance will insure, on an occurrencebasis, against liability of the insured party and its agents arising out of orin connection with the use, management, occupancy, or maintenance of any Site.

 

(iv)                              Each party will submit to the other party thefully paid policies or certificates of insurance evidencing the requiredinsurance coverage within thirty (30) days after receipt of a request for it.

 

(v)                                 Each party shall ensure that each provider ofits insurance under this Section is of national reputation and licensed to dobusiness in the jurisdictions where the Sites are located.

 

(vi)                              Neither party will do or permit to be done inor about any Site nor bring or keep or permit to be brought to any Siteanything that is prohibited by any insurance policy carried by either party.

 

(b)                                 Contractor Insurance.  Eachparty will require that each contractor it retains to perform Work at any Siteobtains and maintains the insurance coverage set forth in Section 16(a) abovein connection with any Work performed by a contractor at any Site.  Each party will ensure that eachcontractor’s insurance policy complies with Section 16(a)(i) and (ii). Eachparty will ensure that each contractor submits the fully paid policies orcertificates of insurance evidencing the insurance coverage of its contractorat the other party’s request.

 

(c)                                  UOC Insurance.  Usershall require that UOC and each of its contractors it retains to perform Workat any Site obtains and maintains the insurance coverage set forth in Section16(a) above in connection with any Work performed by a contractor at anySite.  User shall ensure that eachcontractor’s insurance policy complies with Section 16(a)(ii) and (ii).  User shall require UOC to obtain andmaintain the insurance coverage set forth in Section 16(a) in connection withUOC’s use and occupancy at any Site. User will ensure that UOC and each contractor submits the fully paidpolicies or certificates of insurance evidencing the insurance coverage of itscontractor at GoldenState’s request.

 

(c)                                  No Waiver of Indemnity.** **A party’s compliance with thisSection 16 will not relieve the party of its obligations under Section 17 ofthis MSA.

 

(d)                                 Risk of Loss. Notwithstanding anything herein to the contrary, each party shall bearthe risk of loss of or damage to its personal property during the term of eachSite Agreement except to the extent damage is caused by the negligence orwillful misconduct of the other party. Neither party shall be liable for any damage to the other party’spersonal property except to the extent caused by its own negligence or willfulmisconduct.

 

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(e)                            Duration of Obligation.  Theobligation to maintain the insurance coverages set forth in this Section 16shall remain in effect during the Term and until the Equipment is removed fromthe Site.

 

17.                                 Indemnification.

 

User shall indemnifyGoldenState against and hold harmless from any and all costs, demands, damages,suits, expenses, or causes of action (including reasonable attorneys fees andcourt costs) which arise out of the use and/or occupancy of the Site by Userand UOC. GoldenState shall indemnify User against and hold harmless from anyand all costs, demands, damages, suits, expenses, or causes of action(including reasonable attorneys fees and court costs) which arise out of theuse and/or occupancy of the Site by GoldenState.  This indemnity does not apply to any claims arising from thegross negligence or intentional misconduct of the indemnified party.

 

18.                                 Default.

 

(a)                                  User’s Default.  Eachof the following shall be considered a default of a Site Agreement by the User:

 

(i)                                 The failure to pay any Base Rent or otherfees as required pursuant to this MSA and the Site Agreement within ten (10)Business Days after User’s receipt of written notice of such failure fromGoldenState;

 

(ii)                              The failure to cure any breach under this MSAor the Site Agreement, within thirty (30) days after User’s receipt of writtennotice thereof from Golden State, provided, however, that if such breach is notcapable of being cured within such period but User has undertaken diligentefforts to cure such breach, and such breach is capable of being cured, suchthirty (30) day period shall be extended for so long as User is diligentlyattempting in good faith, to cure such breach, not to exceed an additionalthirty (30) days (except for promises relating to interference as set forth inSection 12(b) hereof) and, provided, however, that if User fails to make anypayment of the Base Rent when due and cures such default two (2) times withinany twelve (12) month period, the third (3rd) failure within thesame twelve (12) month period shall be a default with no cure period;

 

(iii)                           The willful failure of User to eliminateinterference problems as set forth in Section 12(b); or

 

(iv)                          If (A) User gives notice to any governmentalbody of its insolvency or pending insolvency or makes an assignment for thebenefit of creditors or takes any other similar action for the protection orbenefit of its creditors, or files an answer admitting the material allegationsof, or consenting to, or defaults in answering any pleading filed with respectto the commencement of any case or proceeding respecting User under anybankruptcy or insolvency law, or (B) any order for relief is entered againstUser in any case in bankruptcy, any order, judgment or decree is enteredagainst User by a court of competent jurisdiction appointing a receiver,trustee, custodian or liquidator of User or of all or a substantial part of itsassets, and such order, judgment, or decree continues unstayed and in effectfor a period of sixty (60) consecutive days, or any proceeding for thereorganization of a party under, or for an arrangement under, any bankruptcy orinsolvency law applicable to User is commenced whether by or against User andnot dismissed within sixty (60) days from commencement thereof.

 

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(b)                           Remedies.  Upon default of a SiteAgreement by User, as contemplated in Section 18(a), in addition to all other remediesprovided at law or in equity, GoldenState may, at its option:

 

(i)                                     elect to terminate the Site Agreement and toremove all of the Equipment by legal process, thereby terminating the SiteAgreement, and store the Equipment at User’s expense, payable upon demand byGoldenState and accelerate and declare to be immediately due and payable thethen present value of all Base Rent which would otherwise be due under theapplicable Site Agreement which would otherwise have been due GoldenStateabsent a breach by User discounted by an annual percentage rate equal to tenpercent (10%).

 

(ii)                                  elect to treat the Site Agreement in fullforce and effect and shall be entitled to collect the Base Rent or other feesprovided for hereunder.

 

(c)                                  Cross Default. Notwithstanding anything to the contrary contained in the foregoing, inthe event User breaches any of its obligations under this MSA with respect tofifteen percent (15%) or more of the Site Agreements executed hereunder,GoldenState shall have the right (but not the obligation) to terminate all ofthe Site Agreements under this MSA and/or the MSA without prejudice to anyother remedies to which it may be entitled hereunder or by law.

 

(d)                                 Effect of Termination Because of User’sDefault.  Upon the termination of a Site Agreementpursuant to this Section, the parties hereto shall be released from all duties,obligations, liabilities and responsibilities under the Site Agreement exceptfor indemnity obligations, including without limitation, environmental indemnityand tax obligations, any obligations arising prior to the date of termination,and User’s obligation to pay the accelerated rent as described in Section18(b), if any, and to remove its Equipment from the Property.

 

19.                                 Termination.

 

(a)                                  Expiration or Termination of Prime Document.  GoldenState shall use all commerciallyreasonably means to maintain or extend the Prime Document during the SiteAgreement for each Site.  In the eventGoldenState’s right to occupy the Property is terminated at any time followingexecution of a Site Agreement as a result of the termination or expiration ofthe Prime Document, GoldenState shall have no liability to User or UOC as aresult of such termination, the Site Agreement shall automatically terminateupon the effective termination date of the Prime Document and be of no furtherforce and effect, without penalty or continuing liability for payment of BaseRent not accrued prior to the termination date for the affected Site, exceptfor any indemnity obligations, including without limitation, environmentalindemnity and tax obligations and any other obligation arising prior to thedate of termination, and User’s obligation to remove the Equipment from theProperty, the parties hereto shall be released from all duties, obligations,liabilities and responsibilities under the Site Agreement.

 

(b)                                 Legal Impediment.  In the event that any law, ordinance,regulation or directive of any governmental or regulatory authority hereinafterenacted or ordered prohibits GoldenState’s use of the Site, the Site Agreementfor such Site may be terminated by either Party, without penalty or continuingliability for payment of Base Rent not accrued prior to the termination datefor the affected Site, except for any indemnity obligations, including withoutlimitation, environmental indemnity and tax obligations and any otherobligation arising prior to the date of termination, and User’s obligation toremove the Equipment from the Property, the

 

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parties hereto shall be released from all duties, obligations,liabilities and responsibilities under the Site Agreement.

 

20.                                 Condemnation and Destruction.

 

(a)                                  Condemnation.  Ifthe whole or any substantial part of the Property shall be taken by any publicauthority under the power of eminent domain, so as to interfere with User’s useand occupancy thereof, then the applicable Site Agreement shall terminate tothe extent of the taking on the date of possession by such authority of thatpart or the destruction of that part, and any unearned Base Rent paid inadvance of such date shall be refunded by GoldenState to User within thirty(30) days of such possession.  Thetermination of the affected Site Agreement shall be without penalty orcontinuing liability for payment of Base Rent not accrued prior to thetermination date for the affected Site except for any indemnity obligations,including without limitation, environmental indemnity and tax obligations andany other obligation arising prior to the date of termination.

 

(b)                                 Damage or Destruction.  Inthe event a Tower or other portions of the Site are destroyed or so damaged asto be unusable, GoldenState may elect to repair or replace the Tower or damagedSite.  GoldenState shall notify User ofits intention to repair or replace the Tower or the Site within thirty (30)days after the date of the destruction or damage.

 

(i)                                     If GoldenState elects to repair or replacethe Tower or the Site, as necessary, with its notice of election to repair orreplace, GoldenState shall provide to User a plan for completing repair orreplacement of the Tower or the Site, as necessary, within one hundred twenty(120) days after the date of destruction or damage.

 

(ii)                                  If GoldenState cannot effect repair orreplacement within one hundred twenty days (120) after the date of destructionor damage or GoldenState fails to timely provide User a notice of election torepair or replace in accord with Section 20(b) or GoldenState elects not torepair or replace the Site, User may terminate the Site Agreement, withoutpenalty or continuing liability for payment of Base Rent not accrued prior tothe termination date for the affected Site except for any indemnityobligations, including without limitation, environmental indemnity and taxobligations and any other obligation arising prior to the date of termination.

 

(iii)                               If GoldenState elects to repair or replacethe affected Tower, User shall be entitled to an abatement of Base Rent duringthe time in which it cannot use the Tower or the Site and termination orresumption of use, as appropriate.

 

(iv)                              In no event shall the tenancy or otherinterest created by the Site Agreement be specifically enforceable and in noevent shall GoldenState be responsible to User or UOC for indirect, incidental,special punitive or consequential damages, lost business opportunities, lostprofits or lost market share.  Exceptfor its own acts of gross negligence or intentional misconduct, GoldenStatewill have no liability for personal injury or death, loss of revenue due todiscontinuance of operations at the Site, or imperfect communicationsoperations experienced by User or UOC for any reason.

 

21.                                 Relocation of Tower.

 

At its own cost andelection, GoldenState may relocate the Tower to an alternative location or propertyowned, leased, subleased, licensed or sublicensed by GoldenState.

 

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(i)                                     If GoldenState elects to relocate any Tower,

 

(A)                              GoldenState shall ensure that User’soperations at the alternative location of the Tower and the specifications ofUser’s use of the Tower at the new location shall not adversely affect User’soperations from the relocated Tower, as demonstrated by reasonable andcustomary engineering reports prepared by an engineer chosen by mutualagreement of the parties, performing under a scope of work developed by and ata cost mutually agreed upon by the parties. GoldenState shall pay any cost or expense of the preparation of anengineering report under this section.

 

(B)                                If the process of relocation would result inan interruption of User’s operations, at GoldenState’s expense, GoldenStateshall provide a temporary location from which User may conduct its operationsand GoldenState shall install User’s Equipment on a the temporary Tower.

 

(ii)                                  Upon such relocation, User and GoldenStateshall enter into an amendment of the Site Agreement, to specify the new Site.

 

22.                                 Limitation of Liability.

 

(a)                                  Limitation.  NeitherUser nor GoldenState shall be liable to the other for loss of anticipatoryprofits or any other direct, special, incidental, punitive or consequentialdamages incurred as a result of User’s or UOC’s use of any Site pursuant tothis MSA.

 

(b)                                 User’s Remedies.  Except for performance under Section 13(d) ofthis MSA, if GoldenState fails to perform or observe any term, condition,covenant or obligation required to be performed or observed by it under thisMSA or any Site Agreement and such failure to perform continues for thirty (30)days after receipt of User’s written notice thereof provided, however, that ifsuch breach is not capable of being cured within such period but GoldenStatehas undertaken diligent efforts to cure such breach, and such breach is capableof being cured, such thirty (30) day period shall be extended for so long asGoldenState is diligently attempting in good faith, to cure such breach, not toexceed an additional thirty (30) days, in addition to any other remediesavailable to User at law or in equity, User may terminate the applicable SiteAgreement without penalty or continuing liability for payment of Base Rent notaccrued prior to the termination date for the affected Site, except for anyindemnity obligations, including without limitation, environmental indemnityand tax obligations and any other obligation arising prior to the date oftermination and recover any unused prepaid Base Rent paid to GoldenState.

 

23.                                 Rules/Posted Signs.

 

GoldenState may, from timeto time, establish reasonable rules relating to access to and from theProperty.  User agrees to comply and toensure that UOC complies with such rules and posted signs on the Property andat the Site, so long as the rules do not materially impede User’s or UOC’saccess rights described elsewhere in this MSA or in the applicable SiteAgreement or otherwise adversely affect User’s or UOC’s use of the Site.

 

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24.                                 Mortgage by GoldenState.

 

This MSA and each SiteAgreement shall be subject to any security interest or mortgage which might nowor hereafter constitute a lien upon the Site. This MSA and each Site Agreement shall be subject and subordinate in allrespects to any and all such mortgages on the Site and to all renewals,modifications, consolidations, replacements and extensions thereof.  In the event any proceedings are brought forforeclosure or in the event of the exercise of the power of sale under anymortgage covering any Site, the User shall attorn to the purchaser upon anysuch foreclosure or sale and recognize such purchaser as the lessor under thisMSA and the applicable Site Agreement(s); provided that so long as the User isnot in default hereunder, this MSA and the applicable Site Agreement(s) shallremain in full force and effect, and User’s use and occupancy pursuant to thisMSA and applicable Site Agreements shall not be disturbed.

 

25.                                 Mortgage by User.

 

(a)                                  User’s Mortgagee. GoldenState agrees that (i) User may from time to time without theconsent of GoldenState encumber and/or assign User’s interest in this MSA andthe Sites, the rights granted hereunder and thereunder and/or User’s interestin the improvements and any other property of the User located at the Sites byone or more mortgages, deeds of trust and/or other security instruments(individually, as amended, extended, removed, replaced, restructured, restated,refinanced, supplemented or otherwise modified from time to time, a “LeaseholdMortgage”) and (ii) the execution, delivery and recordation thereof shall notbe deemed to be a default pursuant to the terms of this MSA or any SiteAgreement. GoldenState hereby specifically acknowledges and consents to aLeasehold Mortgage in favor of BNP Paribas, as Collateral Agent (in suchcapacity, together with all of it successors, assigns and replacement orsubstitute lenders the “Collateral Agent;” the Collateral Agent and any othermortgagee, beneficiary of a deed of trust or other secured party pursuant to aLeasehold Mortgage, are individually referred to herein as the “User’sMortgagee”).

 

(b)                                 Notices and Demands. GoldenState shall give to the User’s Mortgagee a copy of each notice ofdefault or alleged default by User at the same time and in the same manner asthe notice given by GoldenState to User.

 

(c)                                  Right to Cure.  TheUser’s Mortgagee shall have the right, but not the obligation, to perform anyterm, covenant, condition or agreement and to remedy any default by User underthis MSA, and GoldenState shall accept such performance by User’s Mortgageewith the same force and effect as if performed by the User.  Except in the case of certain defaultsdescribed in Section 25(d) hereof, the User’s Mortgagee shall have a periodwhich shall extend five (5) days beyond the cure period given to User underthis MSA within which to remedy any default of User hereunder or cause such defaultto be remedied; provided, however, if no such cure period exists in favor ofUser hereunder, the cure period applicable to the User’s Mortgagee shall befive (5) days.  Subject to any time,place or manner restrictions on access or use set forth in the Prime Documentand the provisions of this MSA, GoldenState and User hereby authorize theUser’s Mortgagee to enter upon the Sites to effect the cure of a default byUser.  In the event there is a restraintwhich precludes the User’s Mortgagee from taking any actions hereunder orotherwise (such as a judicial order or administrative order including, withoutlimitation, an automatic stay), all applicable cure periods shall be extendedby a period equal to the period of such restraint.  Any default by the User which cannot be cured by the User’sMortgagee because it is personal to User shall not prohibit User’s Mortgageefrom exercising its rights under Section 25. For the purposes of this MSA, defaults deemed to be “personal” to Usershall include but

 

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shall not be limited to (i) the failure to deliver books and records(including financial statements and balance sheets), (ii) the failure todeliver licenses and permits issued directly to User and (iii) the bankruptcyor reorganization of User, but shall not include (x) User’s obligationsregarding the condition of the Sites, including User’s obligations to maintainor repair the Sites and (y) User’s obligations to comply with laws.

 

(d)                                 Certain Defaults.  Inthe event a default by User occurs in the performance or observance of anynon-monetary term, covenant, condition or agreement on User’s part to beperformed under this MSA which cannot practicably be cured by the User’sMortgagee without taking possession of the Sites, or if such non-monetarydefault is of such a nature that the same is not susceptible of being cured bythe User’s Mortgagee because it is personal to User, then GoldenState shall notserve notice of election to terminate or otherwise exercise remedies under orin respect of this MSA, or otherwise terminate the leasehold estate or anyother estate, right, title or interest of User hereunder by reason of suchdefault without allowing the User’s Mortgagee reasonable time within which:

 

(i)                                     In the case of a default which cannotpractically be cured by the User’s Mortgagee without taking possession of theSite(s), to obtain possession of the Site(s) as mortgagee (through theappointment of a receiver or otherwise), and, upon obtaining possession, tocommence and diligently prosecute to completion such action as may be necessaryto cure such default; and

 

(ii)                                  In the case of a default which cannot becured by the User’s Mortgagee because it is personal to User, to commence anddiligently prosecute to completion foreclosure proceedings or to acquire theUser’s estate hereunder, either in its own name or through a nominee, byassignment in lieu of foreclosure or otherwise.

 

The User’s Mortgagee shallnot be required to continue to proceed to obtain possession, or to continue inpossession as mortgagee, of the Sites pursuant to clause (i) above, or tocontinue to prosecute foreclosure proceedings pursuant to clause (ii) above, ifand when such default shall be cured. If the User’s Mortgagee, or its nominee, or a purchaser at a foreclosuresale, shall acquire title to the User’s leasehold estate hereunder, and shallcure all defaults of User hereunder (except with respect to such defaults thatcannot be cured because they are personal to User) which are reasonablysusceptible of being cured, then the defaults of any prior holder of User’sleasehold estate or any other estate, right, title or interest hereunder whichare not susceptible of being cured by the User’s Mortgagee (or by such nomineeor purchaser) because they are personal to User shall no longer be deemed to bedefaults hereunder.

 

(f)                                    The User’s Mortgagee’s Rights Under theLeasehold Mortgage.  In the event a default under a LeaseholdMortgage shall have occurred, the User’s Mortgagee may exercise with respect tothe Sites any right, power or remedy afforded to it thereunder or underapplicable Laws including, without limitation, the right to exercise itsforeclosure remedies contained in such Leasehold Mortgage, to take over User’sinterest as tenant under this MSA, and/or to realize on the stock or any otherequity interest in User and/or any of User’s Affiliates.  GoldenState specifically agrees that therealization on such stock or equity shall not constitute an “assignment” orother transfer pursuant to the terms and conditions of this MSA.

 

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(g)                                 Statement by GoldenState. Within twenty (20) days following receipt of a written request of Useror User’s Mortgagee (specifying the information sought), GoldenState shallexecute and deliver to the addressee(s) thereof a written statement declaring:(i) whether or not the Agreement is modified and, if it is modified, specifyingthe modifications, and in either event that the Agreement is in full force andeffect; (ii) the dates to which monetary obligations hereunder have been paid;(iii) whether User is then in default, and if GoldenState claims User is thenin default, specifying such defaults; and (iv) any other items reasonablyrequested by the User’s Mortgagee at User’s cost.

 

(h)                                 Assignment.  If User’s Mortgagee foreclosesupon or otherwise acquires all or part of User’s leasehold interest, thetransfer to User’s Mortgagee or to any third party designated by User’sMortgagee shall not require GoldenState’s consent.  User’s Mortgagee shall otherwise have the same rights to transferor assign this MSA as set forth herein. The User’s Mortgagee or any other party who acquires User’s leaseholdinterest pursuant to foreclosure or assignment in lieu of foreclosure orotherwise shall not be liable to perform any obligations of the User incurredor accruing prior to the date such party becomes the tenant under this MSA.Notwithstanding anything to the contrary contained herein or elsewhere, (i) theUser’s Mortgagee shall not have any personal liability hereunder except (A)during any period when it is the tenant under this MSA or (B) to the extent itassumes User’s obligations in writing and (ii) the User Mortgagee’s liabilityshall be limited to its interest in this MSA. All liability of User’s Mortgagee shall terminate as of the effectivedate of any assignment of this MSA.

 

(i)                                     No Amendments without the User’s MortgageeConsent.  GoldenState and User shall not amend,supplement or modify the terms of this Section 25 of this MSA without the priorconsent of the User’s Mortgagee.

 

(j)                                     Requests for Consents by User. Notwithstanding anything to the contrary contained in this MSA,GoldenState shall promptly deliver to User’s Mortgagee a copy of any request byUser for GoldenState’s consent to any transfer, assignment, pledge orhypothecation of the User’s interest in this MSA or the execution of any otherLeasehold Mortgage encumbering any of its interests.

 

(k)                                  Memorandum of Agreement.  Usermay record a short form memorandum of the applicable Site Agreement in the realproperty records of the County in which each Site is located. GoldenState shallexecute such memorandum immediately upon request of User at User’s cost.

 

(l)                                     No Merger.  If this MSA and the fee estatein any of the Sites are commonly held, then they shall remain separate anddistinct estates which shall not merge without the consent of the User’sMortgagee.

 

(m)                               Successors and Assigns.  Theprovisions of this Section 25 shall inure to the benefit of the successorsand/or assigns of the User’s Mortgagee and shall be binding upon GoldenStateand its successors and assigns.

 

26.                                 Estoppels.

 

Within twenty (20) daysafter receipt of GoldenState’s written request, User shall deliver toGoldenState, or to any mortgagee or prospective purchaser of GoldenState’sinterest, a

 

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certificate stating, insofar as true, that: (i) User has entered intooccupancy of the Tower and Property in accordance with the provisions of thisMSA and applicable Site Agreement; (ii) this MSA and/or Site Agreement is infull force and effect; (iii) GoldenState has performed the covenants,agreements or conditions required of GoldenState, if such be the case (and ifsuch not be the case, then User shall list those covenants, agreements orconditions not so performed), and any other information reasonably requested byGoldenState or such mortgagee or prospective purchaser.

 

27.                                 Waiver.

 

Any breach or default by aparty will not be waived or released other than in writing signed by the otherparty.  Failure or delay on the part ofeither party to exercise any right, power, privilege or remedy hereunder shallnot operate as a waiver thereof; nor shall any single or partial exercise ofany right under this MSA of under a Site Agreement preclude any other orfurther exercise thereof or the exercise of any other right.

 

28.                                 Binding Effect.

 

This MSA and the SiteAgreements shall extend to and bind the heirs, personal representatives,successors, permitted assigns, or its successors in interest of the partieshereto.

 

29.                                 Governing Law.

 

This MSA shall be construedand interpreted and the rights of the parties determined in accordance with theinternal laws of the State of California.

 

30.                                 Notice.

 

All notices, consents,approvals, and other communications given to either party under this MSA shallbe in writing to such party at the address set forth for such party below or atsuch other address as such party shall designate by notice to the other partyhereto in accordance with this Section 30 and may be delivered by privatecourier services, including overnight courier delivery or by first-class UnitedStates mail, postage prepaid, registered or certified mail with return receiptrequested, to the party entitled thereto, and shall be deemed to be duly givenor made when deposited with the applicable overnight carrier or courier or onthe date received or refused if sent via registered or certified mail.

 

GoldenState:

 

GoldenStateTowers, LLC

125Ryan Industrial Court, Suite 109

SanRamon, CA 94583

Attn:  Property Management

FacsimileNo.: 925-837-9999

 

User:

 

DavidL. Zylka, Vice President of Engineering

UbiquiTel Leasing Company

One West Elm Street

Suite 400

Conshohocken, Pennsylvania 19428

Facsimile No.:  610-832-3400

 

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And, consistent with Section25, to:

 

BNP Paribas

787 Seventh Avenue

New York, NY 10019

Attention:  Gardner Horan

 

With a copy (which shall notconstitute notice) to:

 

Patricia E. Knese, Esq.

Vice President and GeneralCounsel

UbiquiTel Leasing Company

One West Elm Street

Suite 400

Conshohocken, Pennsylvania19428

Facsimile No.:  610-832-1076

 

And to:

 

Marjorie K. Conner, Esq.

700 West View Terrace

Alexandria, Virginia  22301

Facsimile No. 703-706-5917

 

31.                                 Headings.

 

Section headings in this MSAand in each Site Agreement are included for the convenience of reference onlyand shall not constitute a part of this MSA or the Site Agreement for any otherpurpose. Capitalized terms used in this MSA but not defined herein are definedin Appendix I, attached hereto and incorporated by this reference.  Each of the parties has agreed to the use ofthe particular language of the provisions of this MSA and any Site Agreements,and any questions of doubtful interpretation shall not be resolved by any ruleor interpretation against the draftsman, but rather in accordance with the fairmeaning thereof, having due regard to the benefits and rights intended to beconferred upon the parties hereto and the limitations and restrictions uponsuch rights and benefits intended to be provided.

 

32.                                 Brokerage.

 

User warrants and representsto GoldenState that it has not dealt with a real estate agent or broker withrespect to this MSA or any Site Agreement, and shall hold GoldenState harmlessagainst all claims by any real estate agent or broker claiming a commissionhereunder or thereunder on behalf of User. GoldenState warrants and represents to User that it has not dealt with areal estate agent or broker with respect to this MSA or any Site Agreement, andshall hold User harmless against all claims by any real estate agent or brokerclaiming a commission hereunder or thereunder on behalf of GoldenState.

 

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33.                                 Relationship of Parties.

 

The parties are notpartners, joint venturers, or agents and nothing in this MSA will be construedto place them in any such relationship. Neither party will have the power to obligate or bind the other in any mannerwhatsoever.  Each party will be solelyand entirely responsible for its acts and for the acts of its agents,employees, servants, and subcontractors during the performance of this MSA.

 

34.                                 Ownership of the Equipment.

 

The Equipment and otherpersonal property owned, controlled or operated by User or UOC, which Useranticipates shall be located by User or UOC on the Site, is more particularlydescribed in each Site Agreement. The Equipment shall remain User’s or UOC’sexclusive personal property throughout the term and upon termination of theSite Agreement User and UOC shall have the right to remove all Equipment atUser’s sole cost and expense on or before the expiration or earlier terminationof the Site Agreement.

 

35.                                 Counterparts.

 

This MSA may be executed inany number of counterparts, each of which shall be an original, but all ofwhich together shall constitute but one instrument.

 

36.                                 Authority.

 

(a)                                  Corporate Authority.  Each partyhereby represents and warrants to the other that all necessary corporateauthorizations required for execution and performance of this MSA and each SiteAgreement have been given and that the undersigned officer is duly authorizedto execute this MSA and each Site Agreement and bind the party for which itsigns.

 

(b)                                 GoldenState’s Authority.  GoldenState has the right to grant to User the rights granted underthis MSA and each Site Agreement and the rights granted to User under this MSAand each Site Agreement do not, to GoldenState’s knowledge, exceedGoldenState’s rights to use the Sites.

 

37.                                 Severability.

 

If any term, covenant,condition or provision of this MSA or the Site Agreement or any applicationhereof or thereof shall, to any extent, be invalid or unenforceable, theremainder of this MSA and each Site Agreement shall not be affected thereby,and shall be valid and enforceable to the fullest extent permitted by law.  Both GoldenState and User agree to promptlyrenegotiate in good faith any covenant, condition or provision held to beinvalid or unenforceable under this Section.

 

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38.                                 Non-Disclosure.

 

The parties agree thatwithout the express written consent of the other party, neither party shallreveal, disclose or publish to any third party the terms and conditions of thisMSA or any portion thereof, or any Site Agreements hereunder, except to suchthird party’s auditor, accountant, lender or attorney or to a governmentalagency if required by regulation, subpoena or government order to do so.  GoldenState acknowledges that User will filea copy of this MSA with is parent’s filings with the U. S. Securities andExchange Commission (“SEC”). GoldenState specifically consents to User’s SEC filing.

 

39.                                 Entire Agreement and Construction.

 

(a)                                  Entire Agreement.  ThisMSA, along with all the exhibits as same may be amended from time to time,represents the entire understanding of the parties with respect to the subjectmatter of this MSA and supersedes and replaces any prior or contemporaneousagreement between the parties, whether oral or written, relating to the subjectmatter of this MSA.  Any addition,variation or modification of this MSA will be effective only if made in awritten document signed by authorized representatives of both parties.

 

(b)                                 Asset Purchase Agreement. Notwithstanding anything to the contrary in this MSA, this MSA isseparate and apart from the Asset Purchase Agreement.  This MSA does not incorporate, modify, alter, supersede or in anyway affect the terms and conditions of the Asset Purchase Agreement.  Nothing in the Asset Purchase Agreement maymodify, alter, supersede or in any affect the terms and conditions of this MSA.

 

(d)                                 True Lease.  This MSA constitutes a truelease agreement and is not a financing arrangement.

 

(e)                                  Exhibits.  The exhibits, appendices,schedules and attachments to this MSA are incorporated by reference into andmade part of this MSA.  The parties willmodify any exhibit, schedule or attachment to this MSA to reflect any changesin or additions to the information contained in the exhibit, schedule orattachment.

 

40.                                 Disclaimer of Warranties.

 

EXCEPT AS SPECIFICALLYPROVIDED IN THIS MSA, GOLDENSTATE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ASSOCIATED WITH THEPROPERTY OR THE TOWER.  USER ACCEPTS THESITE “AS IS”.

 

41.                                 Survivability.

 

Absent any expresssurvivability period in this MSA the provisions of this MSA and each SiteAgreement shall terminate upon the expiration or earlier termination of eachSite Agreement, except for Section 6, Section 12(a), Section 12(g), Section12(h), Section 12(i), Section 14, Section 16, Section 17, Section 18(c),Section 18(d), Section 22,  Section 29,Section 30, Section 38 and Section 41 which shall survive until the date onwhich the statute of limitations applicable to the circumstances giving rise toany specific claim if applicable.

 

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IN WITNESS WHEREOF, theparties hereto have set their hands the day and year first above written.

 
|   | **GoldenState:**                                                         |
|--------|--------------------------------------------------------------------------|
|   |                                                                     |
|   | GoldenState Towers, LLC, a  Delaware  limited liability company          |
|   |                                                                     |
|   |                                                                     |
|   | By:                                                                      |   |   |
|   | Printed Name:  John F. Ricci                                        |
|   | Title:  Chief Executive Officer                                     |
|   | Signature Date:   October      , 2003 |
|   |                                                                     |
|   |                                                                     |
|   | **User:**                                                                |
|   |                                                                     |
|   | UbiquiTel Leasing Company                                                |
|   |                                                                     |
|   |                                                                     |
|   | By:                                                                      |   |   |
|   | Printed Name: David L.  Zylka                                            |
|   | Title:  Vice President                                              |
|   | Signature Date:  October 15, 2003                                   |
|        |                                                                          |  |  |  |  |

 

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**APPENDIX I**

 

**Definitions.**  Thefollowing terms as used in this MSA and any Site Agreement pursuant hereto aredefined as follows:

 

“**Affiliate(s)**”  Anybusiness entity, (i) directly or indirectly controlled by, controlling or undercommon control with another business entity and (ii) any director or officer ofsuch business entity or of any business entity referred to in clause (i)above.  For the purposes of thisdefinition control of any business entity means ownership, directly orindirectly, of 50% or more of the voting stock of such business entity, if a corporation,and ownership of 50% or more of the equity or beneficial interest in any otherbusiness entity.  Any general partner ofany business entity who is a partnership will be deemed to control suchbusiness entity.  Any manager of amanager-run limited liability company shall be the deemed to control suchbusiness entity.

 

“**Asset Purchase Agreement**” The Asset Purchase Agreement by and between User and GoldenState datedJune 12, 2003.

 

**“Approvals”**  Allcertificates, permits, licenses and other approvals that may be required by anyfederal, state or local authorities to permit User’s and UOC’s intended use ofa Site.

 

**“As-BuiltDrawings” **The visual depiction of the Site showing thelocation, type, and orientation of the Equipment on the Tower as such Equipmentwas installed or as it may be modified from time to time in accordance with theterms of this MSA, and which depiction is rendered after construction has beencompleted.

 

**“Bandwidth”**  Thewidth of the User’s and UOC’s licensed communications channels as measured inmegahertz.

 

**“Base Rent”**  Theannual rental payment due from User to GoldenState for the lease, license,sublease, or sublicense of the Facilities at each Site calculated in accordancewith Section 6(a) hereto, and as adjusted from time to time pursuant to Section6(a) hereto.

 

**“BusinessDays”**  Those calendar days excluding Saturdays,Sundays and legal federal holidays.

 

**“EPA”**  TheUnited States Environmental Protection Agency.

 

**“Equipment**” User’s or UOC’s communications equipment including, but not limited toUser’s or UOC’s antennas, cables, connectors, wires, radios, equipment sheltersor cabinets, and related transmission and reception hardware and software, andother personal property installed on the Facilities and authorized pursuant toa Site Application and Site Agreement approved by GoldenState and anyReplacement Equipment.

 

**“FAA”**  TheUnited States Federal Aviation Administration.

 

**“FCC”**  TheUnited States Federal Communications Commission.

 

**“Facilities”**  Thatportion of each Site, consisting of Tower Space and/or Ground Space which isleased, licensed, subleased, or sublicensed to User by GoldenState.

 

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**“GroundSpace”**  That land area within the Property which isleased, licensed, subleased, or sublicensed to User for the placement of theEquipment at a Site.

 

**“HazardousSubstances”**  Any hazardous material or substance which isor becomes defined as a hazardous substance, pollutant or contaminant subjectto reporting, investigation or remediation pursuant to any federal, state orlocal law, regulation or order; and any substance which is or becomes regulatedby federal, state or local governmental authority; and any oil, petroleumproducts and their by-products.

 

**“InstallationPlans”: **The materials that User must submit toGoldenState prior to performing any Work, which will consist of: (i) finalconstruction or installation plans for any Equipment modification or additionor Site repair; (ii) a schedule of performance of the Work; (iii) the name andcontact information of the contractor who will perform the Work; (iv) a copy ofall insurance policies required under this MSA; (v) a copy of any and allpermits required by law in connection with the Work; and (vi) such otherdocuments as reasonably may be requested by GoldenState.

 

**“Memorandumof Agreement”**  A short form of a Site Agreementsatisfactory for recording.

 

**“MSAInitial Term”**  The two (2) year period following the MSACommencement Date.

 

**“MSAExtension Term” **The two (2) year period immediately followingthe MSA Initial Term.

 

**“MSATerm” **The period of time commencing on the firstday of the MSA Initial Term and ending on the last day the MSA Initial Term orthe applicable MSA Extension Term, if it is renewed.

 

**“PrimeDocument”**  The lease, license or other agreementbetween the Prime Landlord and GoldenState or its successor(s)-in interest fromwhich GoldenState derives its rights in a Property.

 

**“PrimeLandlord”**  The landlord, lessor, or licensor named inthe Prime Document.

 

**“PriorUser”**  Another user of the Site that installed itsequipment on the Tower before the date on which User or UOC installedtheEquipment on the same Tower.

 

**“Property”**  Theland area, including easements and roadways, owned, leased, licensed managed,operated or otherwise controlled by GoldenState pursuant to a Prime Document.

 

“**Renewal Term”**  The termfor which any particular Site Agreement may be extended pursuant to Section5(b) of this MSA.

 

**“ReplacementEquipment” **Equipment to be installed of like form, fitand function as the Equipment which it replaces.

 

“**Resale Arrangements” **Arrangementswith third parties which purchase airtime from User or Sprint at wholesalerates and resell it under their own trade names at retail prices.

 

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**“RoamingArrangements**”Arrangements by which User provides service to customers of other wirelesscarriers when the customers originate or receive calls while in the User’sservice area.

 

**“RFAnalysis”**  A radio frequency interference analysis, orintermodulation study, of the Equipment with all other existing and proposedequipment.

 

**“RFEmissions”**  The power output, or energy, from antennasand other equipment located on the Tower.

 

“**RF Standards**” FCC OET Bulletin 65, entitled EvaluatingCompliance with FCC Guidelines for Human Exposure to Radio frequencyElectromagnetic Fields, Edition 97-01, released August 1997 (“OET Bulletin65”), including the completion of RF worksheets showing compliance with theguidelines set forth in OET Bulletin 65 and all existing and future laws, rulesand regulations related thereto.

 

**“Site”**  TheTower and land area, including easements and roadways, and all improvementsthereto owned, leased, licensed managed, operated or otherwise controlled byGoldenState.

 

**“SiteAgreement”**  Any of the site agreements executed andattached to this MSA as Schedule I-1 – Schedule I-100, by which User or UOCoccupies a Site which shall include a combination of a visual depiction of theGround Space (“Site Drawing”) and As-Built Drawings as Exhibit A and the PrimeDocument for the Site as Exhibit B.

 

**“SiteAgreement Commencement Date”**  The Site AgreementCommencement Date is the date upon which GoldenState acquires a Site from Userpursuant to the Asset Purchase Agreement.

 

“**Site Agreement Execution Date**”  The Site Agreement Execution Date is the same date as the SiteAgreement Commencement Date.

 

**“SiteAgreement Initial Term”**  The first period of ten (10) years from theSite Agreement Commencement Date for which the Facilities are leased, licensed,subleased, or sublicensed to User.

 

**“SiteAgreement Term”**  The term of any Site Agreement shall be theperiod commencing on the first day of the Site Agreement Initial Term andending on the last day the Site Agreement Initial Term or the applicable Site AgreementRenewal Term, if it is renewed.

 

“**Sprint**”  SprintSpectrum, L.P. a Delaware limited partnership.

 

**“StructuralAnalysis”**  The engineering analysis performed todetermine the physical, structural capacity of a Tower to accommodate theproposed Equipment, considering industry standard factors such as weight, windand ice loading, physical space requirements, and all applicable governmentalregulations and requirements.

 

**“SubsequentUser”**  Any other user of a Site which installs itsequipment after the date on which User or UOC installed the Equipment at thesame Site.

 

**“Tower” **Communications tower or structure located on the Property.

 

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**“TowerSpace” **That location on a Tower which is leased,licensed, subleased, or sublicensed to User for the placement of User’sEquipment.

 

**“Work” **The installation and/or performance of: (i) any modifications,additions or enhancements to the Equipment at a Site or the loading offrequency channels or frequency bands in excess of the limit set forth inSection 6(a).

 

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**SCHEDULE “I”**

 

SITEAGREEMENT

 

THIS SITE AGREEMENT (the“Site Agreement”) is made as of the Site Agreement Execution Date, by andbetween GOLDENSTATE TOWERS, LLC, its successors and assigns (hereinafterreferred to as “GoldenState”) and UbiquiTel Leasing Company,  (hereinafter referred to as “User”).  Unless otherwise defined herein, capitalizedterms shall have the meaning set forth in the Master Site Agreement datedOctober 15, 2003 between GoldenState and User (“MSA”).  The parties agree that except as otherwiseset forth herein, the terms and conditions of the MSA shall govern therelationship of the parties under this Site Agreement and the MSA is incorporatedherein by reference.  In the event of aconflict or inconsistency between the terms of the MSA and this Site Agreement,the terms of the MSA shall govern and control.

 

**Site Nameand Site Number:**                 [*Insert Site Name*];            [*Insert GoldenState Site Number*]

 

**I.****                                        ****Site Agreement CommencementDate:                                                      **

** **

**II.****                                    ****Base Rent:**

 

**III.****                                ****Equipment:**

 

The following constitutesLessee’s Equipment at the Site:

 

**1.****                                     ****Antennas:**

** **
| **Type** |   | **Quantity** |   | **Make** |   | **Model No.** |   | **Size** |   | **Mounting****Height** |   |
|----------|--------|--------------|--------|----------|--------|---------------|--------|----------|--------|------------------------|--------|
|     |   |         |   |     |   |          |   |     |   |                   |   |
|     |   |         |   |     |   |          |   |     |   |                   |   |

** **

**2.****                                     ****Dishes –**

 

**3.****                                     ****Permitted OperatingFrequency of Equipment:**

 

**TxFrequencies:**MHz

 

**RxFrequencies:**MHz

 

----

 

**4.**                                      **Cable:**

** **
| **Transmit/Receive  Antenna Cables** |   |
|--------------------------------------|--------|
|                                 |   |
| **Quantity:**                        |   |
|                                 |   |
|                                 |   |
| **Diameter:**                        |   |
|                                 |   |
|                                 |   |
| **Length:**                          |   |
|                                 |   |

** **
| *Receive-only  Antenna Cables* |
|--------------------------------|
|                           |
| **Quantity:**                  |   |
|                           |   |
|                           |   |
| **Diameter:**                  |   |
|                           |   |
|                           |   |
| **Length:**                    |   |
|                           |   |
|                           |   |

 

**5.****                                     ****Base Station:**

** **
| **Manufacturer:**       |   |
|-------------------------|--------|
|                    |   |
|                    |   |
| **Model  No.:**         |   |
|                    |   |
|                    |   |
| **Dimensions:**         |   |
|                    |   |
|                    |   |
| **Power  Output:**      |   |
|                    |   |
|                    |   |
| **Power  Requirement:** |   |

 

II-2

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| **Total  Floor  Space:** |   |
|--------------------------|--------|
|                     |   |
|                     |   |

 

**6.****                                     ****Equipment Power:**

** **
| **Total  effective radiated power of all Transmit Antennas:**  |   |
|---------------------------------------------------------------------|--------|
|                                                                |   |
|                                                                |   |
|                                                                |   |
| **Total  effective radiated power of all Transmit Dishes:**         |   |
|                                                                |   |
|                                                                |   |

 

**7.****                                     ****Other Equipment:**

** **
| **Back Up  Power Source:**                 |   |
|-------------------------------------------------|--------|
|                                            |   |
| **Power and  Telco Interconnect Source:**  |   |

 

 

**III.****                                ****Ground Space and TowerSpace:**

 

The Equipment is installedin the following locations at the Site:

 

**1.****                                     ****Ground Space:****               **10’ x 15’ x 10’ location as indicated on theattached drawing.

 

**2.****                                     ****Tower Space:****                      **15’ of Tower Space (7.5’ above and belowantenna center); Site and As-Built Drawing to be attached.

 

 

 

 

II-3

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IN WITNESS WHEREOF, theparties hereto have set their hands as of the date set forth below.

 
| **GoldenState:**                                                    |
|---------------------------------------------------------------------|
|                                                                |
| GoldenState Towers, LLC, a  Delaware limited liability company |
|                                                                |
| By:  EXHIBIT – NOT FOR SIGNATURE                          |
| Printed Name:                                                       |
| Title:                                                              |
| Date:                                                               |
|                                                                |
| **User:**                                                           |
|                                                                |
| UbiquiTel Leasing Company,  a Delaware corporation                  |
|                                                                |
|                                                                |
| By:  EXHIBIT – NOT FOR SIGNATURE                          |
| Printed Name:                                                       |
| Title:                                                              |
| Date:                                                               |

 

II-4

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EXHIBITA

 

CombinedSite and As-Built Drawings

 

 

II-5

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EXHIBITB

 

PrimeDocument

 

 

II-6

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