exv10w38



 





Exhibit 10.38

Agreement No. 980427-03

Amendment No. 3





AMENDMENT NO. 3




TO AGREEMENT NO. 980427-03



This Amendment No. 3 to Agreement No. 980427-03, is effective on the date when
signed by the last Party (“Effective Date”), and amending Agreement No.
980427-03, is by and between Minorplanet Systems USA, Inc., a Delaware
corporation (“Minorplanet ”) and SBC Services, Inc., a Delaware corporation
(“SBC”), each of which may be referred to in the singular as “Party” or in the
plural as “Parties.”




WITNESSETH



WHEREAS, Minorplanet and SBC entered into Agreement No. 980427-03 on January
31, 2002 (the “Agreement”);



WHEREAS, Minorplanet and SBC desire to amend the Agreement as hereinafter set
forth.



NOW, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, the Parties hereto agree as follows:



1. AMENDMENT TO SECTION A- TERMS & CONDITIONS APPLICABLE TO ENTIRE AGREEMENT,
SECTION 2.51 “TERM OF AGREEMENT.”



Paragraph 1. of Section 2.51 shall be amended with the following new Paragraph
1.:




     1. This Agreement is effective on the date when signed by the last Party
and unless Terminated or Canceled as provided in this Agreement, shall remain
in effect for a term ending on January 30, 2005. The term of this Agreement may
only be extended or renewed upon the mutual agreement of the parties hereto.


2. AMENDMENT TO SECTION D — MINORPLANET NETWORK SERVICES, SECTION 3.04 SERVICE
COMMITMENT



Subsection C of Section 3.04 shall be deleted in its entirety and replaced with
the following new Subsection C:




     C. All service terms described herein terminate on January 30, 2005.


For the term of this Agreement, SBC shall not be required to maintain any
minimum number of HM 5005S Units activated for service. However, if at any time
during the term, SBC does not maintain a minimum of 13,140 HM 5005S Units
activated for service, SBC and Minorplanet shall use




Proprietary Information

The information contained in this Agreement is not for use or disclosure outside SBC, Supplier, their Affiliates and their third party representatives, except under written Agreement by the contracting Parties.




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Agreement No. 980427-03

Amendment No. 3



commercially reasonable efforts to negotiate such amendment to the Agreement to
adjust the service rates charged to SBC for transmission and
maintenance/repair. If SBC and Minorplanet are unable to negotiate and finally
consummate such amendment to the Agreement within 30 days from the day the
number of HM 5005S Units activated became less than 13,140, Minorplanet shall
be entitled to terminate the Agreement immediately upon written notice.



SBC and Minorplanet agree that Minorplanet will file no claims, actions or
other proceedings against SBC based on the refusal of SBC to either renew or
extend the Agreement Subsequent to the expiration of the term of this
Agreement.



If one party to the Agreement commits a material breach of the Agreement, and
the breaching party fails to cure such material breach within the applicable
cure period as provided for in the Agreement following receipt of written
notice of the material breach and a request to cure, the non-breaching party
may treat such material breach as a final repudiation of the Agreement by the
breaching party and terminate its performance under the Agreement. Following
such termination, the non-breaching party shall have no further liability under
the Agreement. Such termination of the Agreement by the non-breaching party
shall not be considered an election of remedies on the part of the
non-breaching party.



3. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]




(Signature page to follow)




Proprietary Information

The information contained in this Agreement is not for use or disclosure outside SBC, Supplier, their Affiliates and their third party representatives, except under written Agreement by the contracting Parties.




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Agreement No. 980427-03

Amendment No. 3



The terms and conditions of Agreement No. 980427-03 in all other respects
remain unmodified and in full force and effect.



IN WITNESS WHEREOF, the Parties have caused this Amendment No. 3 to Agreement
No. 980427-03 to be executed, which may be in duplicate counterparts, each of
which will be deemed to be one and the same original instrument, as of the date
the last Party signs.




	 	 	 
	MINORPLANET SYSTEMS USA, INC.

	 	SBC Services, Inc.
	 
	 	 
	By: (x) W Michael Smith

	 	By: (x) Mark Hummel
	 
	 	 
	Printed Name: W. Michael Smith

	 	Printed Name: Mark Hummel
	 
	 	 
	Title: Chief Operating Officer

	 	Title: Executive Director-Marketing and
	

	 	            General Business Contracting
	 
	 	 
	Date: 1/21/2004

	 	Date: 1/21/2004







Proprietary Information

The information contained in this Agreement is not for use or disclosure outside SBC, Supplier, their Affiliates and their third party representatives, except under written Agreement by the contracting Parties.





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