EXHIBIT 10.3
AMENDMENT NO. 1 TO
MASTER PROFESSIONAL SERVICES AGREEMENT
This Amendment No. 1 (this "AMENDMENT") to the Master Professional
Services Agreement between The ▇▇▇▇▇▇▇▇ Companies, Inc. ("▇▇▇▇▇▇▇▇") and
International Business Machines Corporation ("PROVIDER") dated June 1, 2004 (the
"AGREEMENT") is made as of June 1, 2004 (the "AMENDMENT EFFECTIVE DATE") by and
between ▇▇▇▇▇▇▇▇ and IBM.
WHEREAS, ▇▇▇▇▇▇▇▇ and Provider engaged in extensive negotiations,
discussions and due diligence that have culminated in the formation of the
contractual relationship described in the Agreement;
WHEREAS ▇▇▇▇▇▇▇▇ and Provider desire to make minor changes and corrections
to the Agreement and the various Schedules thereto in order to better reflect
the intended relationship between the parties; and
WHEREAS, capitalized terms used herein and not otherwise defined herein,
shall have the meanings given such terms in the Agreement,
NOW THEREFORE, in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, ▇▇▇▇▇▇▇▇ and Provider
hereby agree as follows:
1. OTHER PROVISIONS UNCHANGED. Except as specifically amended hereby, all
other provisions of the Agreement shall remain in full force and effect.
2. SECTION 2.1(86). Section 2.1(86) of the Agreement is hereby revised and
restated to read as follows:
"TAX AUTHORITY" shall mean any federal, state, provincial, regional,
territorial, local or other fiscal, revenue, customs or excise authority, body
or official competent to impose, collect or assess tax.
3. SECTION 16.1(c). The first sentence of Section 16.1(c) of the Agreement is
hereby revised and restated to read as follows:
"ENDORSEMENTS. Provider's insurance policies as required herein under
Sections 16.1(a)(ii) and (iii) shall name ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Affiliates
and Eligible Recipients and their respective officers, directors and
employees as Additional Insureds for any and all liability arising at any
time in connection with Provider's performance under this Agreement."
4. SECTION 9.1(a). The first sentence of Section 9.1(a) of the Agreement is
hereby revised and restated to read as follows:
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DELIVERY AND CONTENTS. As part of the Services, and at no additional cost
to ▇▇▇▇▇▇▇▇, Provider shall deliver to ▇▇▇▇▇▇▇▇ for its review, comment
and approval (i) a reasonably complete draft of the Policy and Procedures
Manual by the date indicated in Schedule H and (ii) a final draft of the
Policy and Procedures Manual by the date indicated in Schedule H or, if
later, within thirty (30) days after receipt of comments and suggestions
as described in Section 9.1(b).
In Section 9.1(a)(iii), the words "and 15.14" are deleted.
5. SECTION 12.2. The final sentence of Section 12.2 of the Agreement is hereby
revised and restated to read as follows:
"Prior to the Commencement Date and until such time ▇▇▇▇▇▇▇▇ achieves an
investment grade status of ▇▇▇▇▇'▇ "Baa3" or better, or Standard & Poors "BBB-"
or better, ▇▇▇▇▇▇▇▇ shall provide to Provider an irrevocable letter of credit of
Two Million Dollars ($2,000,000) to the benefit of Provider to be drawn upon by
Provider in its sole discretion in the event of ▇▇▇▇▇▇▇▇'▇ non-payment of
undisputed amounts after first giving notice to ▇▇▇▇▇▇▇▇ and providing ▇▇▇▇▇▇▇▇
the five (5) business day opportunity to cure as set forth above."
6. Section 18.3(c)(i). The word "indemnitees" is replaced by "indemnities."
7. Section 21.3(a): The address under the second heading of "with a copy to" is
replaced by the following:
General Counsel
IBM Business Consulting Services
Building 2, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. SCHEDULE B. Schedule B is hereby replaced with the revised Schedule B
attached to the Agreement.
9. SCHEDULE D. Schedule D is hereby amended as set forth in Exhibit 1 hereto
10. SCHEDULE G. Schedule G and the Attachments to Schedule G are hereby
replaced with the revised Schedule G and the revised Attachments to
Schedule G attached to the Agreement.
11. SCHEDULE J. Schedule J and the Attachments to Schedule J are hereby
replaced with the revised Schedule J and the revised Attachments to
Schedule J attached to the Agreement.
12. SCHEDULE L. Schedule L is hereby replaced with the revised Schedule L
attached to the Agreement.
13. SCHEDULE S. Schedule S is hereby amended as set forth in Exhibit 1 hereto.
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10. COUNTERPARTS. This Amendment may be executed in more than one counterparts
by the parties hereto, each of which shall be deemed an original but all
of which shall constitute one and the same instrument.
11. GOVERNING LAW AND FORUM. This Amendment and performance under it shall be
governed by and construed in accordance with Section 19.5 of the
Agreement. This Amendment is incorporated into and made a part of the
Agreement. This Amendment is subject to the terms and conditions of the
Agreement, as such terms are modified by this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective duly authorized representatives as of the Amendment
Effective Date.
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC. INTERNATIONAL BUSINESS
MACHINES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President Title: Senior Project Executive
Date 08/02/04 Date: 08/02/04
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