EX-10.4 7 w48478ex10-4.txt AMENDMENT 1 TO AGREEMENT TO BUILD TO SUIT 1 EXHIBIT 10.4 AMENDMENT NO. 1 TO THE AGREEMENT TO BUILD TO SUIT Amendment No. 1 (this "Amendment"), dated as of January 31, 2001, to the Agreement to Build to Suit (the "Agreement"), dated as of December 14, 2000, by and among SBC Wireless, LLC ("SBCW"), for itself and as Agent for the SBCW Parties (as defined in Section 1.01 of the Agreement) designated on the signature page thereto), SpectraSite Holdings, Inc. ("TowerCo Parent") and SpectraSite Communications, Inc. ("Vendor"). Unless otherwise defined herein, capitalized terms shall have such meanings as ascribed to them in the Agreement. WHEREAS, SBCW, Vendor and TowerCo Parent desire to amend the Agreement as more particularly set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Amendment to Section 1.01. ------------------------- The definition of "Existing POPs" is hereby deleted in its entirety and replaced by the following: "`Existing POPs' means the sum of the POPs shown in Schedules 3.12(a) and 3.12(b) to this Agreement," as such Schedules may hereafter be amended in accordance with the provisions hereof." 2. Amendment to Section 3.12. ------------------------- Section 3.12 is hereby amended as follows: 2.1 The following parenthetical is hereby inserted after the word "POPs" the first and third times it appears in Section 3.12(c): "(determined by reference to Schedules 3.12(a) and 3.12(b) to this Agreement, as such Schedules may hereafter be amended in accordance with the provisions hereof)." 2.2 The following clause (h) is added at the end of Section 3.12: "(h) Notwithstanding anything to the contrary contained herein, promptly after POPs for the year 2000 have been published by the authorities described at the end of Schedule 3.12(b), Schedules 3.12(a) and 3.12(b) shall be amended to replace the POPs reflected thereon with the POPs for the year 2000 as so published, and from and after such amendment, each reference to POPs included in this Agreement, shall refer to the POPs which appear on Schedules 3.12(a) and 3.12(b), as so amended." 2 2 3. Amendment to Schedule 3.12(a). ----------------------------- Schedule 3.12(a) is hereby deleted in its entirety and replaced by Schedule 1 attached hereto and made a part hereof. 4. Amendment to Schedule 3.12(b). ----------------------------- Schedule 3.12(b) is hereby deleted in its entirety and replaced by Schedule 2 attached hereto and made a part hereof. 5. Counterparts. ------------ This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts and all such counterparts shall be deemed to be one and the same instrument. Each party hereto confirms that any facsimile copy of such party's executed counterpart of this Amendment (or its signature page thereof) shall be deemed to be an executed original thereof. 6. Ratification of Agreement. ------------------------- This Amendment shall not constitute an amendment or modification of any other provision of the Agreement not expressly referred to herein. Except as expressly amended or modified herein, the provisions of the Agreement are and shall remain in full force and effect. 7. Governing Law. ------------- This Amendment shall be governed by, and interpreted and construed in accordance with, the laws of the State of New York, without regard to conflicts of laws or rules. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 3 3 IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the day and year first above written. SBCW: SBC WIRELESS, LLC, as attorney-in-fact for the SBCW Parties listed on Exhibit A pursuant to Section 16.17 of the Agreement By:/s/Kathy Rehmer ------------------------------------------ Kathy Rehmer, as attorney-in-fact VENDOR: SPECTRASITE COMMUNICATIONS, INC. By:/s/ Glen Spivak ------------------------------------------ Glen Spivak Vice President TOWERCO PARENT: SPECTRASITE HOLDINGS, INC. By:/s/ Richard Byrne ------------------------------------------ Richard Byrne Executive Vice President 4 S-2 SBCW PARTIES: ABILENE SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 5 S-3 AMARILLO SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ---------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 6 S-4 AMCELL OF ATLANTIC CITY, LLC By: AMERICAN CELLULAR NETWORK LLC, its manager By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 7 S-5 AMERICAN CELLULAR NETWORK COMPANY, LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 8 S-6 AMERITECH MOBILE COMMUNICATIONS, LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 9 S-7 AMERITECH WIRELESS COMMUNICATIONS, LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 10 S-8 AURORA/ELGIN CELLULAR TELEPHONE, LLC By: AMERICAN CELLULAR NETWORK LLC, its manager By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 11 S-9 CELL SOUTH OF NEW JERSEY LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 12 S-10 CHAMPAIGN CELLTELCO By: SOUTHWESTERN BELL MOBILE SYSTEMS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 13 S-11 CINCINNATI SMSA LIMITED PARTNERSHIP By: AMERITECH MOBILE COMMUNICATIONS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 14 S-12 CORPUS CHRISTI SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, its General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 15 S-13 C-SW CELLULAR PARTNERSHIP By: SOUTHWESTERN BELL MOBILE SYSTEMS, LLC, its General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney By: AMERICAN CELLULAR NETWORK LLC, its General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 16 S-14 DALLAS SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 17 S-15 DECATUR CELLULAR TELEPHONE COMPANY LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 18 S-16 DELAWARE VALLEY PCS COMMUNICATIONS, LLC By: AMERICAN CELLULAR NETWORK LLC, its manager By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ---------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 19 S-17 DETROIT SMSA LIMITED PARTNERSHIP By: AMERITECH MOBILE COMMUNICATIONS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 20 S-18 EASTERN MISSOURI CELLULAR LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 21 S-19 GARY CELLULAR TELEPHONE COMPANY By: SOUTHWESTERN BELL MOBILE SYSTEMS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 22 S-20 HOUMA THIBADOUX CELLULAR PARTNERSHIP By: SBC WIRELESS, LLC, its General Partner By:/s/Kathy Rehmer ----------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of- Attorney 23 S-21 JOLIET CELLULAR TELEPHONE, LLC By: AMERICAN CELLULAR NETWORK LLC, its manager By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 24 S-22 KANSAS CITY SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 25 S-23 LUBBOCK SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 26 S-24 MADISON SMSA LIMITED PARTNERSHIP By: AMERICAN MOBILE COMMUNICATIONS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 27 S-25 MCALLEN-EDINBURG-MISSION SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 28 S-26 MIDLAND-ODESSA SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 29 S-27 MILWAUKEE SMSA LIMITED PARTNERSHIP By: AMERITECH MOBILE COMMUNICATIONS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 30 S-28 MISSOURI RSA 8 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 31 S-29 MISSOURI RSA 9B1 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 32 S-30 MISSOURI RSA 11/12 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 33 S-31 NEHOLDINGS, LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of- Attorney 34 S-32 OKLAHOMA CITY SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 35 S-33 OKLAHOMA RSA 3 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 36 S-34 OKLAHOMA RSA 9 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 37 S-35 PACIFIC TELESIS MOBILE SERVICES, LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 38 S-36 ST. JOSEPH SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 39 S-37 SAN ANTONIO SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, its General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 40 S-38 SBMS CELLULAR TELECOMMUNICATIONS BLOOMINGTON LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 41 S-39 SBMS CELLULAR TELECOMMUNICATIONS SPRINGFIELD LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 42 S-40 SNET CELLULAR LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 43 S-41 SOUTHWESTERN BELL MOBILE SYSTEMS LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 44 S-42 SOUTHWESTERN BELL WIRELESS, LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 45 S-43 SPRINGWICH CELLULAR LIMITED PARTNERSHIP By: SNET CELLULAR LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 46 S-44 TEXAS RSA 6 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 47 S-45 TEXAS RSA 7B 1 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 48 S-46 TEXAS RSA 9B 1 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 49 S-47 TEXAS RSA 9B4 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 50 S-48 TEXAS RSA 10B1 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 51 S-49 TEXAS RSA 18 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 52 S-50 TEXAS RSA 19 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ---------------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 53 S-51 TEXAS RSA 20B1 LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 54 S-52 OPEKA SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------ Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 55 S-53 VINELAND CELLULAR TELEPHONE COMPANY LLC By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer ------------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 56 S-54 WASHINGTON/BALTIMORE CELLULAR LIMITED PARTNERSHIP By: WASHINGTON/BALTIMORE CELLULAR HOLDCO LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer -------------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 57 S-55 WICHITA SMSA LIMITED PARTNERSHIP By: SOUTHWESTERN BELL WIRELESS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 58 S-56 WORCESTER TELEPHONE COMPANY By: SOUTHWESTERN BELL MOBILE SYSTEMS LLC, General Partner By: SBC WIRELESS, LLC, its manager By:/s/Kathy Rehmer --------------------------- Kathy Rehmer as Attorney-in-Fact by Power-of-Attorney 59 S-57 CCPR OF THE VIRGIN ISLANDS, INC. By:/s/Paul R. Driscoll ----------------------------- Paul R. Driscoll Vice President 60 S-58 CCPR SERVICES, INC. By:/s/Paul R. Driscoll ------------------------------ Paul R. Driscoll Vice President 61 S-59 PINE BLUFF CELLULAR, INC. By:/s/Paul R. Driscoll ------------------------------ Paul R. Driscoll Vice President 62 S-60 PINNACLE CELLULAR LIMITED PARTNERSHIP By: OZARK CELLULAR CORPORATION, as general partner By:/s/Paul R. Driscoll ------------------------------------ Paul R. Driscoll Vice President 63 S-61 RADIOFONE HOLDINGS, INC. By:/s/Paul R. Driscoll ------------------------------ Paul R. Driscoll Vice President 64 S-62 SAN JUAN CELLULAR TELEPHONE COMPANY By: CCPR, INC., General Partner By:/s/Paul R. Driscoll ------------------------------ Paul R. Driscoll Vice President 65 S-63 USVI CELLULAR TELEPHONE CORPORATION By:/s/Paul R. Driscoll ------------------------------ Paul R. Driscoll Vice President