Exhibit 10.2
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
AMENDMENT NO. 1 dated as of February 25, 1997, to the Amended
and Restated Procurement and Services Contract dated as of October 9, 1996,
between Sprint Spectrum Equipment Company, L.P., a Delaware limited partnership
(the "Owner") and Lucent Technologies Inc., a Delaware corporation, the full
successor to the Network Systems Group of AT&T Corp., a New York corporation
(the "Vendor", and together with the Owner, the "Parties").
RECITALS:
WHEREAS, the Parties are parties to a certain Amended and
Restated Procurement and Services Contract dated as of October 9, 1996 as may be
amended, supplemented or modified from time to time (the "Contract") wherein the
Owner agreed to have the Vendor engineer and construct PCS Systems in the System
Areas and the Vendor, itself or through its Subcontractors, agreed to provide
Products and Services to the Owner in connection with the engineering and
construction of PCS Systems in the System Areas pursuant to and in accordance
with the terms of the Contract.
WHEREAS, pursuant to and in accordance with a Consent and
Waiver between the Parties (the "Consent and Waiver") dated as of December 23,
1996, the Parties desire to amend the Contract.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions set forth herein, the Owner and the Vendor hereby agree as follows:
1. Definitions. Unless otherwise defined herein, all capit- alized terms
used in this Amendment will have the meaning given to such terms in the
Contract.
2. Agreement. The Parties understand and agree that the terms of Paragraph
2 of the Consent and Waiver are hereby incorporated into and are made a part of
the Contract.
3. Amendment to Subsection 2.7. Subsection 2.7 is hereby amended to add the
following subsection 2.7(c) after subsection 2.7(b):
"(c) Notwithstanding anything contained in subsection
2.6, this subsection 2.7 and/or Exhibit A1 to the contrary, the Vendor
will be required to complete the Work in accordance with the
Specifications as required by each of Milestone 6, Milestone 7 and
Milestone 8 within the time periods between the Milestones (denoted by
"M" on the table below) set forth on the table below. The Guaranteed
Substantial Completion Dates for each of the PCS Systems and PCS
Sub-Systems listed in the following table will not be later than the
dates set forth in the column marked "Guaranteed Substantial Completion
Date".
===========================--------------------------------=====================
PCS System/PCS M5 Latest M6 to M7 Latest M7 to M8 M8
Sub-System M6 date Interval M7 date Interval Guaranteed
Substantial
Completion Date
===========================--------------------------------=====================
[ ]
Furthermore and notwithstanding anything contained in this Contract to
the contrary, for any PCS System and/or PCS Sub-System (other than any
PCS Systems and/or PCS Sub-Systems listed on the table above) which did
not achieve the requirements of Milestone 5 pursuant to the terms of
the Contract on or before January 15, 1997 (each a "97 System"), the
target permissible interim period between Milestone 5 and Milestone 8
in which the Vendor must complete the Work required for and as a
condition of achieving Substantial Completion in a timely manner in
accordance with the terms of this Contract shall be ninety (90) days;
provided that in certain larger PCS Systems and PCS Sub-Systems such
period may exceed ninety (90) days, as mutually agreed by the Owner and
the Vendor, but in no event will such period exceed a total of one
hundred thirty (130) days. For all such 97 Systems, the applicable
permissible interim periods (including the periods between applicable
Interim Milestones) will be mutually agreed by the Owner and the Vendor
on or before achieving Milestone 5 for each such 97 System. All such
agreements will be reflected in writing, executed by authorized
representatives of both the Owner and the Vendor. For purposes hereof,
the authorized representative of the Vendor is Pat Pomponio and the
authorized representative of the Owner is Keith Paglusch.
4. Amendment to Subsection 15.2. Subsection 15.2(b) is hereby amended to
add the following sentence after the last sentence of 15.2(b):
"Notwithstanding anything contained herein to the contrary, for any of
the five PCS Systems and/or PCS Sub-Systems listed on the table in
subsection 2.7(c) or any 97 System, any Interim Delay Penalties accrued
pursuant to subsection 15.2(a) will be credited back to the Vendor in
the manner described in the immediately preceding sentence to the
extent that (i) the Vendor successfully achieves Substantial Completion
of such PCS System or PCS Sub-System on or before the Guaranteed
Substantial Completion Date (as such date is determined in accordance
with the terms of subsection 2.7(c)) and (ii) the relevant interim
delay does not otherwise materially adversely affect the Owner, such
PCS System or PCS Sub-System and/or the System as a whole."
5. NO OTHER AMENDMENTS. EXCEPT AS EXPRESSLY AMENDED, MODIFIED AND
SUPPLEMENTED HEREBY, THE PROVISIONS OF THE CONTRACT ARE AND WILL REMAIN IN FULL
FORCE AND EFFECT AND NOTHING IN THIS AMENDMENT WILL BE CONSTRUED AS A WAIVER OF
ANY OF THE RIGHTS OR OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT.
6. GOVERNING LAW. THIS AMENDMENT WILL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARDS TO THE LAWS AND
PRINCIPLES THEREOF WHICH WOULD DIRECT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
7. Descriptive Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provisions of this
Amendment.
8. Counterparts. This Amendment may be executed in any number of identical
counterparts, each of which will constitute an original but all of which when
taken together will constitute but one contract.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be signed by their duly authorized representatives on the date
first above written.
SPRINT SPECTRUM EQUIPMENT
COMPANY, L.P., as the Owner
By: /s/ KEITH PAGLUSCH
Name: Keith Paglusch
Title: Vice President - Engineering &
Operations
LUCENT TECHNOLOGIES INC.,
as the Vendor
By:/s/ WILLIAM K. NELSON
Name: William K. Nelson
Title: Vice President