AMENDMENT TO MASTER DISTRIBUTION AGREEMENT
This AMENDMENT (the "Amendment") is made and entered into this 6th day
of November, 1998 (the "Amendment Date"), by and between Intek Global Corp.
("Intek"), a corporation organized under the laws of the State of Delaware
with principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxxxx 00000-0000, NRTC LLC ("NRTC"), a limited-liability company organized
under the laws of the Commonwealth of Virginia with principal offices at 0000
Xxxxxxxxxxx Xxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and the National Rural
Telecommunications Cooperative ("NRTC Corporate"), a non-profit cooperative
association organized under the laws of the District of Columbia with
principal offices at 0000 Xxxxxxxxxxx Xxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000.
RECITALS:
WHEREAS, Intek and NRTC entered into a Master Distribution Agreement
dated September 4, 1998 (the "'Distribution Agreement") pursuant to which the
parties agreed to provide for the distribution by NRTC to its Members of the
equipment and expertise of Intek and its affiliates in the construction and
operation of wireless communications systems in the 220-222 MHz band (the
"220 MHz Band") pursuant to licenses granted by the Federal Communications
Commission (the "FCC");
WHEREAS, pursuant to the FCC's auction of Phase II 220 MHz Band
licenses, affiliates of each of the parties have acquired the rights to
operate on new frequencies and in new geographic areas in the 220 MHz Band;
WHEREAS, the parties have agreed to further define their rights and
obligations pursuant to the distribution of Intek products and services to
NRTC and its members and now are desirous of further memorializing in this
Amendment their current understandings;
NOW, THEREFORE, in consideration of the foregoing and of the respective
representations, warranties, agreements and conditions contained herein, the
parties hereto agree as follows:
1. Except to the extent that a new definition is provided in this
Amendment, all Capitalized terms used herein shall have the meaning defined
for such terms in the Distribution Agreement.
2. Amendment to Section 2. Section 2.2 of the Distribution Agreement is
hereby amended by adding Subsection (d) as follows:
(d) For purposes of this Amendment the "Roamer Marks" shall mean the
trademark "RoameR One" and the tradename "RoameR One" and similar variations
thereof and all registration, application and renewals thereof in the U.S.
and all logos, whether or not registered, used in the U.S. in connection
therewith. The Members in each State in the Exclusive Territory who purchased
whole state 220 MHz rights from NRTC (or its affiliate, NRTC Corporate) shall
notify Intek no later than January 1, 1999 (or such later date as the parties
may agree) of their intention to use the Roamer Marks in connection with the
distribution of Company Products in their State. Any authorized Member who
purchased whole state 220 MHz rights from NRTC (or its affiliate, NRTC
Corporate) which elects to use the Roamer Marks in a State (a "Participating
Member") in the Exclusive Territory shall pay royalties annually to Intek in
the amount of $15,000 plus $500 for each base station constructed within that
State up to maximum annual royalty due of $25,000 for each State. Intek and
all Participating Members shall execute License Agreements, which Agreements
shall provide for support of the use of the Roamer Marks by Intek as
described in Schedule 1 to this Amendment. The License Agreements shall
further provide for use of the Roamer Marks by the Participating Member
subject to the continuing rights of Intek and existing RoameR dealers to use
such Roamer Marks and the payment of the royalties by the Participating
Member. Intek and any NRTC Member (a "Non-Participating Member") or
non-member associate of NRTC Corporate (including NRTC and NRTC Corporate
each) who desires to use the Roamer Marks on a non-exclusive, non-statewide
and royalty-free basis shall enter into Dealer Agreements, which Agreements
shall on a most favored nation basis provide, among other things, the
Non-Participating Member (and NRTC and/or NRTC Corporate each) a
non-exclusive license to use the Roamer Marks within that Member's or
entity's service area. The License Agreements and the Dealer Agreements shall
also provide Intek with the right to take such actions as are necessary to
protect the Roamer Marks, including the right to approve all promotional
materials bearing the Roamer Marks and the right to terminate the license
upon the misuse of the Roamer Marks by a Member or upon the provision of
service by a Member employing the Roamer Marks not in accordance with
acceptable industry practices and standards.
3. Amendment to Section 4. Sections 4.2 (f) and 4.2 (g) of the
Distribution Agreement are hereby deleted in their entirety and shall be of
no further force and effect.
4. Joint Development.
Intek and NRTC have agreed as follows with respect to the use and joint
development of the J, K and L Block licenses: (a) the Nationwide K Block
License shall be available for use during the term of the Development
Agreements, as defined below, by Intek and NRTC, respectively, and their
affiliates, subsidiaries, members and subscribers as follows: Intek shall
designate up to fifty (50) of the 100 top MSAs not in the Exclusive Territory
and five (5) of the channel pairs shall be available for use by Intek, and
five (5) of the channel pairs shall be available for use by NRTC in the
selected MSAs, with all channel pairs available for use by NRTC outside the
selected MSAs; (b) the Nationwide L Block License shall be available for
three years following grant of the license for the use and development by
Intek and NRTC of national wireless communications opportunities employing
Intek's Linear Modulation ("LM") technology and equipment, or such other
technology and equipment as may be mutually agreed by the parties; and (c)
the Regional J Block Licenses shall be available for three years following
the grant of the licenses for the use and development by Intek and NRTC of
wireless communications systems employing Intek's LM technology and
equipment, or such other technology and equipment as may be mutually agreed
by the parties as follows: Intek shall designate up to ten of the top 100
MSAs not in the Exclusive Territory in each Region and eight (8) of the
channel pairs shall be available for use by Intek and seven of the channel
pairs shall be
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available for use by NRTC in the selected MSAs, with all channel pairs
available for use by NRTC outside the selected MSAs. The parties use and
development of the licenses pursuant to this Section shall be subject to all
applicable FCC Rules, regulations and policies. Intek and NRTC shall each
use their best reasonable efforts to negotiate and agree on Joint Development
Agreements (the "Development Agreements") for the joint development and use
by the parties and their affiliates, subsidiaries and members of the
Nationwide K and L Block FCC Licenses and the Regional J Block FCC Licenses
incorporating these provisions. The Development Agreement shall further
provide that if after three years from the date of grant of the J Block
licenses satisfactory progress towards construction of the licenses in
response to FCC construction requirements and market demands has not been
made, then Intek and NRTC shall each hold an option to terminate the J Block
Development Agreement and purchase the J Block licenses and all associated J
Block assets held by the other party for a payment in the amount of
$1,018,250.00 plus the book value of any systems or equipment then operated
by the other party or its Members, subsidiaries and affiliates on such
frequencies. The Development Agreements shall provide for cooperation between
the parties in the construction of facilities on the J, K and L Block
licenses in an efficient manner to timely satisfy the construction
requirements of Sections 90.767 and 90.769 of the FCC's Rules.
5. Each of Intek and NRTC hereby restate and confirm as of the Amendment Date
the truth and accuracy in all material respects of the representations and
warranties contained in Section 6 of the Distribution Agreement.
6. NRTC Corporate is hereby made a party to the Distribution Agreement for
such purposes as expressly indicated herein.
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In Witness Whereof, the parties have hereunto set their hands and seals
this 6th day of November, 1998.
NATIONAL RURAL TELECOMMUNICATIONS COOPERATIVE
/s/
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By:
INTEK GLOBAL CORP.
/s/
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By:
NRTC LLC
/s/
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By:
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