Exhibit 10.3
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. 2
TO
PROCUREMENT AND SERVICES CONTRACT
BETWEEN
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P.
AND
NORTHERN TELECOM INC.
Made as of this 29th day of January, 1997, by and between Sprint
Spectrum Equipment Company, L.P. ("Equipment Co.") (the "Owner"), a Delaware
limited partnership, and Northern Telecom Inc., a Delaware corporation (the
"Vendor").
RECITALS:
WHEREAS, Equipment Co. and the Vendor, are parties to that certain
Procurement and Services Contract dated as of January 31, 1996, as amended the
"Contract", wherein Sprint Spectrum Holding Company L. P. (formerly known as
MajorCo, L.P., "Holdings") agreed to have the Vendor engineer and construct PCS
Systems in the System Areas and the Vendor agreed to provide Products and
Services to Holdings 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; and
WHEREAS, Equipment Co. is the successor to all of the rights and
obligations of Holdings under the Contract pursuant to that certain
Assignment, Assumption and Amendment No. 1 to the Contract dated as of June
26, 1996; and
WHEREAS, the Parties desire to amend subsections 6.3, 17.3, 27.7, and
Schedules 2 and 12 A/B of the Contract;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions set forth herein, the Parties hereby agree as follows:
1. Delete the next to the last paragraph of subsection 6.3 "Payments'
and replace, in lieu thereof, a new next to the last paragraph of subsection 6.3
as set forth below:
"Notwithstanding the foregoing, (i) invoices for RF
Engineering for each PCS System will be payable in accordance with
subsection 6.4(b) below and (ii) invoices for Facilities Preparation
Services being provided to the Vendor by a Subcontractor within any PCS
System will be submitted to the Owner by the Vendor upon the
Subcontractor's full and satisfactory completion of that portion of the
Facilities Preparation Services for which that invoice is written. Each
such invoice will be payable by the Owner within forty-five (45) days
of the date of Vendor's invoice."
2. Delete subsection 17.3 (c) Services Warranty and replace, in
lieu thereof, a new subsection 17.3 (c) as set forth below:
"(c) The Vendor warrants that, for a period of not less than
three (3) years (except in the case of Civil Work specific to site
preparation limited to only, grading, dirtwork, land clearing, pad
construction, compound construction, erection of towers, installation
of fencing, landscaping, road work, site and building improvements,
including retaining walls, roof repair and reinforcements, and building
reinforcements, or such other items as the Parties shall mutually agree
to in writing) as to which the period shall be one (1 ) year) from the
date of completion of Facilities Preparation Services within any PCS
System but in no event later than the achievement of Milestone M8
pursuant to Exhibit A1 in such PCS System (provided that in the event
of a Microwave Delay Period in such PCS System pursuant to subsection
2.37, the commencement of the Facilities Preparation Services Warranty
Period will not be later than three (3) months from the date the Vendor
would have otherwise been able to commence Substantial Completion
testing in such PCS System in accordance with Exhibit B3 and Milestone
M8 as set forth on Exhibit A1 but for the existence of such Microwave
Delay Period) (the `Facilities Preparation Services Warranty Period'
and collectively with the Engineering Warranty Period and the RF
Services Warranty Period, the `Services Warranty Periods') Facilities
Preparation Services will be (i) operational in accordance with the
Specifications, (ii) in compliance with all material Applicable Laws
and material Applicable Permits in effect at the time of the completion
of such Facilities Preparation Services in such PCS System, and (iii)
free from Defects or Deficiencies in design, materials, workmanship or
otherwise. It is expressly understood by the Parties that `Civil Work
specific to site preparation,' for the sole purpose of determining
which Civil Work is subject to a one (1) year warranty and which Civil
Work is subject to a three (3) year warranty pursuant to the terms set
forth above, does not include building construction, tower materials,
fencing materials and/or Non-Essential Equipment (which will be subject
to warranties pursuant to Subsection 17.2) all of which may be part of
Civil Work but will not be deemed `Civil Work specific to site
preparation.'"
3. Delete subsection 27.7 "Governing Law" and replace, in lieu
thereof, a new subsection 27.7 as set forth below:
"GOVERNING LAW AND FORUMS. THIS CONTRACT IS GOVERNED BY THE
LAWS AND STATUTES OF THE STATE OF NEW YORK, EXCLUSIVE OF NEW YORK'S
CONFLICT OF LAWS RULES. THIS CONTRACT AND THE WORK WILL BE DEEMED TO BE
MADE, EXECUTED AND PERFORMED IN THE STATE OF NEW YORK. IF ONE PARTY
COMMENCES A LAWSUIT IN RELATION TO THIS CONTRACT AGAINST THE OTHER
PARTY, SUCH LAWSUIT CAN ONLY BE BROUGHT IN THE STATE OF MISSOURI OR THE
STATE OF DELAWARE. THE PARTIES HEREBY WAIVE A TRIAL BY JURY IN ANY SUCH
LAWSUIT. THE VENDOR AND THE OWNER EACH HEREBY IRREVOCABLY (A) AGREES
THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS CONTRACT WILL BE BROUGHT IN THE FEDERAL DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI, OR IN THE FEDERAL DISTRICT COURT
FOR THE DISTRICT OF DELAWARE, WHICH COURTS WILL HAVE EXCLUSIVE
JURISDICTION OVER ANY CONTROVERSY ARISING OUT OF THIS CONTRACT, (B)
CONSENTS TO THE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDINGS AND (C) WAIVES ANY OBJECTION WHICH IT MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN SUCH COURTS
AND CLAIMS THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. SERVICE OF PROCESS IN ANY SUIT, ACTION OR
PROCEEDING MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS
TO THE OWNER OR THE VENDOR, AS THE CASE MAY BE, AT THE ADDRESSES
INDICATED IN SUBSECTION 27.6 HEREOF AND IN THE MANNER SET FORTH IN SUCH
SUBSECTION 27.6. NOTHING IN THIS SUBSECTION 27.7 WILL AFFECT THE RIGHT
OF THE OWNER OR THE VENDOR TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW."
4. Schedule 2 of the Contract is hereby amended by adding the following
as an additional line above the chart on the first page of such Schedule 2:
"The BSS discount applies to BSM spares."
5. Schedule 12 A/B of the Contract, is hereby deleted and replaced with
"Schedule 12 A/B (Revised)" as contained in Attachment A of this Amendment.
6. IN ALL OTHER RESPECTS, THE CONTRACT AS HERETOFORE AMENDED, SHALL RE-
MAIN IN FULL FORCE AND EFFECT WITH NO OTHER CHANGES WHATSOEVER.
7. This Amendment No. 2 shall be governed by New York law.
8. Capitalized term not otherwise defined herein have the meanings
set forth in the Contract.
9. This Amendment No. 2 may be executed by one or more of the Parties
to this Amendment No. 2 on any number of separate counterparts, and all of said
counterparts taken together will be deemed to constitute one and the same in-
strument.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be
executed by their duly authorized representatives as of the date first set forth
above.
SPRINT SPECTRUM EQUIPMENT
COMPANY, L.P.
By: /s/ Keith D. Paglusch
Name: Keith D. Paglusch
Title: Vice President - Network
Engineering and Operations
Date: 1-18-97
NORTHERN TELECOM INC.
By: /s/ Charles Drayton
Name: Charles Drayton
Title: Vice President - Marketing
and Sales
Date: January 29, 1997
ATTACHMENT A
DMS_MTX SPARES LIST
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