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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."
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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S-15
DECATUR CELLULAR TELEPHONE COMPANY LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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S-17
DETROIT SMSA LIMITED PARTNERSHIP
By: AMERITECH MOBILE
COMMUNICATIONS LLC, General
Partner
By: SBC WIRELESS, LLC,
its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact
by Power-of-Attorney
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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
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S-19
GARY CELLULAR TELEPHONE COMPANY
By: SOUTHWESTERN BELL MOBILE
SYSTEMS LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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S-21
JOLIET CELLULAR TELEPHONE, LLC
By: AMERICAN CELLULAR NETWORK
LLC, its manager
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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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
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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
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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
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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
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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
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S-28
MISSOURI RSA 8 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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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
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S-31
NEHOLDINGS, LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
------------------------------------
Kathy Rehmer
as Attorney-in-Fact by Power-of-
Attorney
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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
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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
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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
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S-35
PACIFIC TELESIS MOBILE SERVICES, LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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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
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S-38
SBMS CELLULAR TELECOMMUNICATIONS BLOOMINGTON LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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S-40
SNET CELLULAR LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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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
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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
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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
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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
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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S-47
TEXAS RSA 9B4 LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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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
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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
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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
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S-53
VINELAND CELLULAR TELEPHONE
COMPANY LLC
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
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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
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S-55
WICHITA SMSA LIMITED PARTNERSHIP
By: SOUTHWESTERN BELL WIRELESS
LLC, General Partner
By: SBC WIRELESS, LLC, its manager
By:/s/Kathy Rehmer
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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
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Kathy Rehmer
as Attorney-in-Fact by
Power-of-Attorney
59
S-57
CCPR OF THE VIRGIN ISLANDS, INC.
By:/s/Paul R. Driscoll
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Paul R. Driscoll
Vice President
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S-58
CCPR SERVICES, INC.
By:/s/Paul R. Driscoll
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Paul R. Driscoll
Vice President
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S-59
PINE BLUFF CELLULAR, INC.
By:/s/Paul R. Driscoll
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Paul R. Driscoll
Vice President
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S-60
PINNACLE CELLULAR LIMITED PARTNERSHIP
By: OZARK CELLULAR
CORPORATION, as general partner
By:/s/Paul R. Driscoll
------------------------------------
Paul R. Driscoll
Vice President
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S-61
RADIOFONE HOLDINGS, INC.
By:/s/Paul R. Driscoll
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Paul R. Driscoll
Vice President
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S-62
SAN JUAN CELLULAR TELEPHONE COMPANY
By: CCPR, INC., General Partner
By:/s/Paul R. Driscoll
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Paul R. Driscoll
Vice President
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S-63
USVI CELLULAR TELEPHONE
CORPORATION
By:/s/Paul R. Driscoll
------------------------------
Paul R. Driscoll
Vice President