CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
ASTERISK * DENOTES SUCH OMISSIONS.
CONTRACT NUMBER: 96-0053
AMENDMENT NO. 1 TO
SPECIFIC AGREEMENT NO. 96-0053
BY AND BETWEEN
METRO ONE TELECOMMUNICATIONS, INC.
AND
SPRINT SPECTRUM L.P.
THIS AMENDMENT No. 1 (the "Amendment") is made and entered into, effective as
of December 9, 1998 (the "Effective Date"), by and between Metro One
Telecommunications, Inc., an Oregon corporation ("Metro One") and Sprint
Spectrum L.P., a Delaware limited partnership ("Sprint Spectrum"), for the
purpose of amending Specific Agreement No. 96-0053 dated October 23, 1996, by
and between Metro One and Sprint Spectrum (the "Agreement"). In the event of
any conflict between the terms of this Amendment and the Agreement, the terms
of this Amendment will supersede and control. The term "Agreement," as used
in this Amendment, will collectively refer to the Agreement as modified by
this Amendment.
1. Section 2.1.ii) is amended by deleting the present language and replacing
it with the following:
***
CONFIDENTIAL
SPRINT SPECTRUM L.P. PROPRIETARY INFORMATION
1
CONTRACT NUMBER: 96-0053
***
2. Section 6.a., Rate, is amended by deleting the present language and
replacing it with the following:
(i) Effective January 1, 1999, Sprint Spectrum and each Sprint Spectrum
Affiliate will be invoiced by Metro One based on the EDA call count
volume at the rates set forth in the table below:
***
(ii) If a Sprint Spectrum Affiliate is operating under this Agreement,
their volumes will be included with Sprint Spectrum's in all of the
calculations.
(iii) Sprint Spectrum will be provided with a report of the total call
volumes for all of Sprint Spectrum and all Sprint Spectrum
Affiliates combined, during the same month.
(iv) Sprint Spectrum Affiliates will receive only their call
information.
(v) If Metro One requests and Sprint Spectrum agrees, the configuration
of Call Origination and Call Termination areas may be modified at
no incremental cost increase to Sprint Spectrum, based on a six (6)
month cost comparison.
SPRINT SPECTRUM L.P. PROPRIETARY INFORMATION
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CONTRACT NUMBER: 96-0053
(vi) The example below illustrates how the monthly invoices will be
calculated:
***
3. Section 6.c.i.), Payment Terms, following the fourth sentence, insert the
following:
"Notice of non-payment is to be mailed to Sprint Spectrum at the following
address:
Original sent to: Sprint PCS
Manager, Directory Assistance
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▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: Sprint PCS
Project Manager/Vendor Payments
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▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇"
4. Beginning in the second line of Section 6.f., Term, delete the words "for a
period of three (3) years following commercial availability of Metro One
EDA Services in twenty (20) markets listed in Exhibit 1 prior to any
amendment(s)" and replace them with "through December 31, 2002."
5. Exhibit 5, Service Level Standards, Performance Monitoring, is amended by
deleting the current Measurement and replacing it with the following:
***
6. Section 13.a., Indemnification and Liability, is amended by adding the
following:
SPRINT SPECTRUM L.P. PROPRIETARY INFORMATION
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CONTRACT NUMBER: 96-0053
"and (v) any misuse or misappropriation by Indemnitor of web enabled call
monitoring recordings. Sprint Spectrum shall indemnify Metro One for claims
arising from web enabled call recordings, if such claims are not the result
of Metro One's failure to comply with Sprint Spectrum's requirements and
procedures for such recordings, as described in a valid Work Order. Metro
One shall indemnify Sprint Spectrum for claims arising from the recording
of calls which result from the actions of Metro One, its employees, agents,
representatives, or contractors."
7. Section 15, Termination, is amended by adding the following:
"h. TERMINATION FOR CONVENIENCE. At any time, but no later than March 31,
2000, Sprint Spectrum may notify Metro One of the month Sprint Spectrum
will terminate this Agreement, in whole or in part, taking into
consideration Section 16.g, at any time, with no liability other than the
fees set forth in Exhibit 15, attached hereto. Sprint Spectrum will provide
Metro One a wind-down transition period plan which details the timeframe
and market-by-market plan to re-route the Calls. The termination effective
date will be as determined by Sprint Spectrum during the wind-down
transition period. This termination for convenience option may not be
exercised prior to March 1, 2000.
If Sprint Spectrum terminates this Agreement for convenience as provided in
this Section 15.h., Sprint Spectrum agrees to pay Metro One a termination
fee in an amount equal to the amounts set forth in Exhibit 15, attached
hereto. The amount of the termination fee will be based upon the effective
date of the termination for convenience."
8. In Section 16.a., Affiliate Transactions, delete the Section in its
entirety and replace it with the following:
"This Agreement is entered into by Sprint Spectrum on its own behalf and
for the benefit of all Sprint Spectrum embedded and independent affiliated
entities (each a "Sprint Spectrum Affiliate"). An embedded Affiliate means
any entity who is authorized to sell digital wireless products or services
under the Sprint PCS brand name or any other brand name(s) subsequently
primarily used by Sprint Spectrum to market its digital wireless products
and services and Sprint Spectrum is Metro One's day-to-day contact and
responsible party for accounts receivable. An independent Affiliate means:
a) any entity in which Sprint Spectrum holds or controls an equity or
similar interest; b) any entity which holds or controls an equity or
similar interest in Sprint Spectrum; c) any subsidiary, and any
corporation, partnership, limited liability company, limited liability
partnership, joint venture or other entity controlling, controlled by or
under common control with Sprint Spectrum, directly or indirectly by or
through one or more intermediaries; d) Tele-Communications, Inc., Comcast
Corporation, ▇▇▇ Communications, Inc. or Sprint Corporation; e) SprintCom,
Inc.; or f) any entity that is authorized to sell digital wireless products
or services under the Sprint PCS brand name or any other brand name(s)
subsequently primarily used by Sprint Spectrum to market its digital
wireless products and services and Sprint Spectrum is not Metro One's
day-to-day contact and responsible party for accounts receivable.
All references to Sprint Spectrum refer equally to each Sprint Spectrum
Affiliate executing a Work Request with terms in accordance with this
Agreement. No Sprint Spectrum Affiliate is authorized or allowed to modify
any policies, processes, procedures, scripts, etc. that Metro One and
Sprint Spectrum have agreed to without the prior written consent of Sprint
Spectrum. Any embedded or independent Affiliate not executing a Work
Request under this Agreement is considered an Alternate Channel for
purposes of this Agreement. No commitment is made by Sprint Spectrum or any
Sprint Spectrum Affiliate, or any liability accepted, except as set forth
in
SPRINT SPECTRUM L.P. PROPRIETARY INFORMATION
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CONTRACT NUMBER: 96-0053
a properly signed Work Request. All communications and invoices must be
directed to the Sprint Spectrum Affiliate issuing the Work Request under
the instructions contained in the Work Request. Services performed on
behalf of any Sprint Spectrum Affiliate will be invoiced to and collected
from that Sprint Spectrum Affiliate only. Only the Sprint Spectrum
Affiliate issuing a specific Work Request under this Agreement will incur
any obligation or liability for any claim which may arise from or relate to
that Work Request.
9. In the second line of Section 16.b., Affiliate Rights, after the word
"Agreement", insert "with the prior written consent of Sprint Spectrum and
Metro One, which consent will not be unreasonably withheld."
10. Exhibit 13 in its entirety and all references to Exhibit 13 contained in
the Agreement are deleted.
11. Add the following new subsection to Section 16:
"g. ACQUISITIONS: If Sprint Spectrum acquires a controlling interest in
any entity which has Services provided to it by Metro One, Sprint
Spectrum may, in its sole discretion, terminate the contract for
Services between Metro One and such entity, without liability, and the
acquired entity will be provided Services pursuant to the terms and
conditions of this Agreement for the greater of a) the remaining term
of this Agreement; or b) the initial term remaining on the acquired
entity's agreement, which shall be limited to no more than five (5)
years."
12. In Section 2.n., EDA Services Numbers, insert the following as the second
and third sentence:
"At Sprint Spectrum's sole discretion, Sprint Spectrum may or may not route
such calls to Metro One if such calls are associated with an "Alternate
Channel". The term Alternate Channel means a distribution channel for
Sprint Spectrum products and services which may be branded under a
different name, co-branded, or marketed in such a way that Sprint Spectrum
does not solely own the end user relationship or any entity to whom Sprint
Spectrum is required by law, regulation or contract to provide products or
services involving products or services to be provided pursuant to this
Agreement."
13. Exhibits 1, 2, and 3 are deleted in their entirety and replaced by the
attachments hereto and Exhibit 15 is added.
14. Section 2.r. is deleted in its entirety and replaced with the following:
"YEAR 2000 WARRANTY. Metro One warrants that the hardware, software and
firmware used to provide Enhanced Directory Assistance under this Agreement
which contain or depend upon a date processing function (the "Systems")
will be "Year 2000 Compliance" no later than ***, which means the
functions, calculations, and other computing processes of the System
(collectively "Processes") perform and otherwise process, perform date
arithmetic, display, print or pass date/time data in a consistent manner,
regardless of the date in time on which the Processes are actually
performed or the dates used in such data, whether on, during or after
January 1, 2000 and whether or not the date/time data is affected by leap
years. To the extent the System is intended to be used in combination with
other Sprint Spectrum software, hardware and/or firmware, the System will
properly exchange date/time data with such software, hardware and/or
firmware to the extent the Sprint Spectrum software, hardware and firmware,
correctly processes date/time data input. The System will accept and
respond to two-digit year-date input, correcting or supplementing as
necessary, and store, print, display or pass date/time data in a manner
that is unambiguous as to
SPRINT SPECTRUM L.P. PROPRIETARY INFORMATION
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CONTRACT NUMBER: 96-0053
century. No date/time data will cause the System to perform an abnormally
ending routine or function within the Processes or generate incorrect
values or invalid results.
Metro One warrants that the System will be been tested by Metro One to
determine whether the System is Year 2000 Compliant. Upon the written
request of Sprint Spectrum, Metro One will deliver the test objectives and
results of such tests.
If determined by Metro One or Sprint Spectrum that the System is not Year
2000 Compliant, Metro One will, at its expense, within thirty (30) days
after notice of the non-compliance, either (1) immediately correct or
modify the System such that it is Year 2000 Compliant; or (2) replace the
System with a System that is functionally equivalent to the non-compliant
System and is Year 2000 Compliant. If neither of these options are
available, Sprint Spectrum may terminate this Agreement without any
liability.
Except as expressly modified by this Amendment, the terms and conditions of the
Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment Number 1 to be
executed and represent and warrant that the signatory whose signature appears
below has been and is on the Effective Date duly authorized by all necessary and
appropriate corporate action to execute this Amendment Number 1.
METRO ONE TELECOMMUNICATIONS, SPRINT SPECTRUM L.P.
INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- ------------------------------
Signature Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- ------------------------------
Print Name Print Name
President & CEO Vice President, Bus. Svcs.
----------------------------------- ------------------------------
Title Title
December 11, 1998 12/15/98
----------------------------------- ------------------------------
Date Date
SPRINT SPECTRUM L.P. PROPRIETARY INFORMATION
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CONTRACT NUMBER: 96-0053
EXHIBIT 1 ***
EXHIBIT 2 ***
EXHIBIT 3 CURRENT METRO ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Dallas, Texas
Denver, Colorado
Detroit, Michigan
Ft. Lauderdale, Florida
Los Angeles, California
Minneapolis, Minnesota
New York, New York
Philadelphia, Pennsylvania
Phoenix, Arizona
Portland, Oregon
Sacramento, CA
San Diego, California
San Francisco, California
Seattle, Washington
St. Louis, Missouri
EXHIBIT 15 ***
7