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Exhibit 2.8
AMENDMENT NO. 1 TO THE AGREEMENT TO SUBLEASE
Amendment No. 1, dated as of December 14, 2000, to the
Agreement to Sublease, dated as of August 25, 2000 among SBCW, for itself and on
behalf of the Sublessor Entities, TowerCo Parent and TowerCo (the "Agreement").
Unless otherwise defined herein, defined terms shall have such meanings ascribed
to them in the Agreement.
WHEREAS, pursuant to Section 16.19 of the Agreement, SBCW,
TowerCo 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 3.2(d).
The last sentence of Section 3.2(d) is hereby deleted in its
entirety and replaced by the following:
"Notwithstanding the foregoing, if TowerCo Parent elects to
pay all of the End Date Adjustment Payment in Parent Stock,
the maximum number of shares of Parent Stock TowerCo Parent
will be required to issue in order to satisfy its obligation
with respect to such payment shall not exceed the product of
(x) 10,783,179 shares of Parent Stock and (y) a fraction the
numerator of which is equal to the SBCW End Date Stock Amount,
and the denominator of which is equal to 14,291,997 shares of
Parent Stock, and if TowerCo Parent elects to pay some of the
End Date Adjustment Payment in the form of Parent Stock, the
foregoing limitation on the maximum number of shares of Parent
Stock required to be issued shall be applied proportionately
based on the percentage of such payment TowerCo Parent elects
to pay in Parent Stock."
2. Amendment to Section 3.2(e).
The last sentence of Section 3.2(e) is hereby deleted in its
entirety and replaced by the following:
"Notwithstanding the foregoing, if TowerCo Parent elects to
pay all of the Change of Control Payment in Parent Stock, the
maximum number of shares of Parent Stock TowerCo Parent will
be required to issue in order to satisfy its obligation with
respect to such payment shall not exceed the product of (x)
10,783,179 shares of Parent Stock and (y) a fraction the
numerator of which is equal to the SBCW Change of Control
Stock Amount, and the denominator of which is equal to
14,291,997 shares of Parent Stock, and if TowerCo Parent
elects to pay some of the Change of Control Payment in the
form of Parent Stock, the foregoing limitation on
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the maximum number of shares of Parent Stock required to be
issued shall be applied proportionately based on the
percentage of such payment TowerCo Parent elects to pay in
Parent Stock."
3. Amendment to Section 3.2(f).
The last sentence of Section 3.2(f) is hereby deleted in its
entirety and replaced by the following:
"Notwithstanding the foregoing, if TowerCo Parent elects to
pay all of the Liquidity Event Payment in Parent Stock, the
maximum number of shares of Parent Stock TowerCo Parent will
be required to issue in order to satisfy its obligation with
respect to such payment shall not exceed the product of (x)
10,783,179 shares of Parent Stock and (y) a fraction the
numerator of which is equal to the SBCW Liquidity Event Stock
Amount, and the denominator of which is equal to 14,291,997
shares of Parent Stock, and if TowerCo Parent elects to pay
some of the Liquidity Event Payment in the form of Parent
Stock, the foregoing limitation on the maximum number of
shares of Parent Stock required to be issued shall be applied
proportionately based on the percentage of such payment
TowerCo Parent elects to pay in Parent Stock."
4. Amendment of Denominator.
The language appearing after the phrase "the denominator of
which is equal to" in (A) clause (ii) of the second sentence of the definition
of Change of Control Payment, (B) clause (ii) of the second sentence of the
definition of Liquidity Event Payment, and (C) clause (ii) of the second
sentence of the definition of End Date Adjustment Payment, is hereby deleted and
replaced with the following phrase "14,291,997 shares of Parent Stock."
5. Amendment of Section 3.2(h).
Section 3.2(h) is hereby amended by including the following
sentence at the beginning thereof:
"Any references to the number of shares of Parent Stock in (A)
the definition of Change of Control Payment, (B) the
definition of Liquidity Event Payment, (C) the definition of
End Date Adjustment Payment, (D) Section 3.2(d), (E) Section
3.2(e) and (F) Section 3.2(f), shall be subject to appropriate
adjustment in the event of any stock dividends, splits,
combinations or subdivisions occurring after August 25, 2000."
6. Amendment of the definition of "Liquidity Event
Payment".
The definition of Liquidity Event Payment is hereby amended by
deleting the phrase "SBCW Affiliates" in the proviso of the first sentence
thereof and replacing it with the phrase "its Affiliates".
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7. Amendment of Section 4.6(b).
The following language is hereby inserted at the end of
Section 4.6(b):
"If TowerCo reasonably believes that an Existing Site should
become an Excluded Site (rather than deferring such Site to a
later Closing Date) because either (i) the applicable
Sublessor Entity will not be able to satisfy all of its
conditions to this Agreement to close on such Site or (ii) the
matters disclosed by the applicable Sublessor Entity on the
Disclosure Schedule would have a Material Adverse Effect on
such Existing Site which is not capable of being cured,
TowerCo shall promptly notify SBCW or SBCW's designated agent
of such determination."
8. Continuing Effect of Stockholders' 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.
9. 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.
10. 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.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this agreement, as of the day and year first above written.
SBC WIRELESS, INC.
By: /s/ Kathy Rehmer
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Kathy Rehmer, as attorney-in-fact
SOUTHERN TOWERS, INC.
By: /s/ Glen F. Spivak
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Glen F. Spivak
Vice President
SPECTRASITE HOLDINGS, INC.
By: /s/ Richard J. Byrne
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Richard J. Byrne
Executive Vice President
