EXHIBIT 10.13.4
Amendment No. 3 to the General Agreement for Purchase of Personal
Communications Systems and Services Between
TeleCorp PCS, Inc., and Lucent Technologies Inc.
This is the third amendment ("Amendment No. 3") to the General Agreement
for the Purchase of Personal Communications Systems and Services ("General
Agreement"), Contract No. LNM980501JATEL, between TeleCorp PCS, Inc., a Delaware
corporation ("Customer"), and Lucent Technologies Inc. ("Seller" or Lucent"), a
Delaware corporation, and is entered into as of November 10th, 1998. Capitalized
not defined herein shall have the meaning given to such terms in the General
Agreement.
WHEREAS, the undersigned parties have previously entered into the
General Agreement as amended by Amendment No.1 and Amendment No.2; and
WHEREAS, the undersigned parties now wish to modify the General
Agreement as stated in this Amendment.
NOW, THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned parties hereto agree to modify the General
Agreement as follows:
1. Customer hereby places a Purchase Order for Lucent to ship the
following Products: 100 cell sites and 200 radio/amplifier pairs, as more fully
set forth on Attachment A to this Amendment No. 3. Customer hereby agrees that
Seller shall issue an invoice(s) on Delivery(ies) of these Products and
Customer agrees to pay said invoice(s) within thirty (30) days of its (their)
issuance. Title and risk of loss shall transfer to Customer upon Delivery.
2. Sub-Article 1.1 HEADINGS AND DEFINITIONS is hereby amended by adding
the term "Delivery" which shall read as follows: "Delivery means the Delivery of
Products and Licensed Materials F.O.B. (defined in accordance with Incoterms
1990, as may be updated from time to time) at Seller's staging or manufacturing
facilities in Columbus, Ohio, Omaha, Nebraska, or any other Seller's
manufacturing facility and, with respect to batteries only, Dallas, Texas."
3. Sub-Article 1.4 MINIMUM MARKET COMMITMENT is hereby amended by
adding Puerto Rico, and by adding the following sentence at the end of the
sub-article: "Customer agrees that during the term of this Agreement Seller
shall be the exclusive supplier of MSC Products and Base Station Products and
related Licensed Materials in any additional expansion Market that Customer
elects to build out, provided Seller provides additional vendor financing for
such Market on terms and in amounts (the amounts being 50% of the projected
first five year purchase of Products, Licensed Materials and Services
1
from Lucent for such Market: the "Projected Purchases") generally equivalent to
the existing Series A and C Bonds (it being agreed that the financing for 15% of
the Projected Purchases shall be evidenced by Series A Bonds and 35% by Series C
Bonds, for an aggregate of 50% of the Projected Purchases).
4. Paragraph (a) of Sub-Article 1.12 INVOICES AND TERMS OF PAYMENT
is hereby retroactively amended to the effective date of the General Agreement
and shall continue through the remaining term of the General Agreement to read
as follows:
"For the Products and Licensed Materials (including
transportation charges and taxes, if applicable) listed on
Attachment A to the General Agreement shipped on or after the
date of this Amendment, Customer shall be invoiced one hundred
percent (100%) of the purchase price on Delivery or as soon
thereafter as practicable. Customer shall pay the invoiced
amounts within thirty (30) days of the date of Seller's invoice.
For the Products and Licensed Materials (including
transportation charges and taxes, if applicable) listed on
Attachment A to the General Agreement which were shipped prior
to the date of this Amendment and invoiced on a progress or
percentage payment method, any outstanding percentage will be
invoiced by Seller immediately and Customer will pay such
invoiced amounts within thirty (30) days from the date of
Seller's invoice(s).
For the Products and Licensed Materials (including
transportation charges and taxes, if applicable) which are not
listed on Attachment A to the Genral Agreement, Customer and
Seller shall mutually agree at the time of an order for such
Products and Licensed Materials as to the invoicing and payment
terms.
Invoicing for the four million dollar ($4,000,000) Optional
Feature RTU per MSC with respect to each of the first four (4)
MSC's shall occur on Delivery of such Optional Features, and
payment for said invoices shall be due thirty (30) days after
the date of Seller's invoice. Invoicing for the four million
dollar ($4,000,000) Optional Feature RTU per MSC with respect to
MSC's other that the first four (4) MSC's shall occur on
Delivery of such Optional Features, and payment for said
invoices shall be due thirty (30) days after Acceptance of the
Initial System relating to such MSC.
In every case, engineering will be billed upon Delivery of
Products and installation will be billed as performed or as soon
thereafter as practical."
5. Notwithstanding anything to the contrary contained in this
Amendment or in the General Agreement, Customer shall not have the right to
return to Lucent any Products or Licensed Materials listed on Attachment A to
the General Agreement as a result of any delay in Provisional, Final or System
Acceptance and Customer's only rights or remedies as a result of any such delay
shall be to have Lucent timely correct any failure or problem necessary to
obtain Provisional, Final or System Acceptance and to recover liquidated or
other damages as provided for in the General Agreement.
6. Paragraph (c) of Sub-Article 1.12 INVOICES AND TERMS OF PAYMENT
is hereby deleted in its entirety.
7. Except as modified by this Amendment, all terms and conditions
of the General Agreement (as amended by Amendment 1 and Amendment 2) shall be
fully applicable to this Amendment.
8. Deference shall be granted to this Amendment hereto in the event
of a conflict between this Amendment and the General Agreement.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be
executed by their duly authorized representative on the date(s) indicated.
TeleCorp PCS, Inc. Lucent Technologies Inc.
By: /s/ RP Druski By: /s/ Kenneth J. Farrell
--------------------------------- ---------------------------------
Name: RP Druski Name: Kenneth J. Farrell
------------------------------- --------------------------------
Title: CFO Title: Sales Director
------------------------------ -------------------------------
Date: 11-10-98 Date: 11-10-98
------------------------------- -------------------------------
3