Exhibit
10.11


 


AMENDMENT to the
TERRESTRIAL NETWORK RESELLER AGREEMENT


 


and


 


PRIVATE NETWORK
SATELLITE SERVICES AGREEMENT


 


THIS AMENDMENT (the “Amendment”) to the Terrestrial
Network Reseller Agreement dated November 29, 2000, between MOTIENT
COMMUNICATIONS INC. (“MOTIENT COMMUNICATIONS”) and AETHER SYSTEMS, INC.
(“AETHER”) and the Private Network Satellite Services Agreement dated November
29, 2000 between MOTIENT SERVICES INC. (“MOTIENT SERVICES”) and AETHER is
entered into as of October 9, 2001 (the “Amendment Effective Date”) by and
between MOTIENT COMMUNICATIONS, MOTIENT SERVICES, and AETHER.


 


WITNESSETH:


 


WHEREAS, MOTIENT
CORPORATION, MOTIENT SERVICES, and AETHER entered into the Asset Sale Agreement
dated November 29, 2000 (the “Asset Sale Agreement”); and


 


WHEREAS, MOTIENT
SERVICES, AETHER, and SunTrust Bank (the “Escrow Agent”) entered into the
Escrow Agreement dated November 29, 2000 (the “Escrow Agreement”); and


 


WHEREAS, MOTIENT
COMMUNICATIONS COMPANY and AETHER entered into the Terrestrial Network Reseller
Agreement dated November 29, 2000, as amended on August 17, 2001 (the
“Terrestrial Network Agreement”); and


 


WHEREAS, MOTIENT
COMMUNICATIONS COMPANY assigned the Terrestrial Network Agreement to MOTIENT
COMMUNICATIONS effective December 31, 2000; and


 


WHEREAS, MOTIENT
SERVICES and AETHER entered into the Private Network Satellite Services
Agreement dated November 29, 2000 (the “Satellite Network Agreement”); and


 


WHEREAS, MOTIENT
COMMUNICATIONS, MOTIENT SERVICES and AETHER now desire to amend the Terrestrial
Network Agreement and Satellite Network Agreement in certain respects.


 


NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, MOTIENT COMMUNICATIONS, MOTIENT SERVICES and AETHER agree as
follows:


 

















 


1.             Concurrent
with the execution of this Amendment, AETHER and MOTIENT SERVICES shall also
sign the attached joint written notice to the Escrow Agent, pursuant to Section
3.1(a) of the Escrow Agreement, instructing the Escrow Agent to disburse the
Escrow Deposit to MOTIENT SERVICES in accordance with the instructions in the
joint written notice or as directed by MOTIENT SERVICES.


 


2.             At
the request of AETHER, any unused balance of the prepayment set forth in
Section 5(c) of the Terrestrial Network Agreement that is not applied to
amounts owed under the Terrestrial Network Agreement, shall be applied to
amounts owed by AETHER to MOTIENT SERVICES for provision of the Service under
the Satellite Network Agreement.


 


3.             At
the request of AETHER, any unused balance of the prepayment set forth in
Article Two, Section 2.1(c) of the Satellite Network Agreement that is not
applied to amounts owed under the Satellite Network Agreement, shall be applied
to amounts owed by AETHER to MOTIENT COMMUNICATIONS for provision of the
Service under the Terrestrial Network Agreement.


 


4.             Section
8(a) of the Terrestrial Network Agreement is amended and restated in its
entirety as follows:


 


“The Initial Term of this Agreement shall be November
29, 2000 through November 29, 2006 (the “Initial Term”). At the end of the
Initial Term, the Agreement may be renewed on terms and conditions and at rates
to be agreed in writing by the parties, provided that neither party is then in
default under the Agreement. Notwithstanding the foregoing, if, at the end of
the Initial Term, Aether Systems has made all of the prepayments described in
section 5 above, but has not then consumed the Capacity Limit, and if Aether
Systems wishes to continue to receive the Service, the term of the Agreement
shall be extended, with and subject to the same terms and conditions, until
such date that Aether Systems has used all of the Capacity Limit”


 


5.             The
“Capacity Limit,” as defined in Section 4 of the Terrestrial Network Agreement
is increased to [*].


 


6.             Attachment
A to the Terrestrial Network Agreement is amended to add the following::


 


“Starting in the first full month after the Amendment
Effective Date MOTIENT COMMUNICATIONS agrees to provide Services to Aether
under the Terrestrial Network Agreement up to the Capacity Limit at a charge no
greater than [*] per kilobyte consumed for Services that are billed by the
kilobyte. [*]


 


7.             The
following sentence is hereby added to the end of Section 5(e) of the
Terrestrial Network Agreement:


 












* Confidential information.  Information has been redacted.


 


2

















 


“For the avoidance of doubt, as of the date AETHER has
exhausted [*] of prepayments under the Terrestrial Reseller Agreement by
applying such prepayment to Services provided under the Terrestrial Network
Agreement and/or Satellite Network Agreement, AETHER shall have no further
prepayment obligations under the Terrestrial Network Agreement and shall pay
for the Services under the Terrestrial Network Agreement as such Services are
consumed by AETHER and invoiced by MOTIENT COMMUNICATIONS.”


 


8.             Section
1.1 of the Satellite Network Agreement is hereby deleted and replaced with the
following:


 


“This Agreement shall begin on November 29, 2000 and
shall end on November 29, 2006 (the “Initial Term”). At the end of the Initial
Term, this Agreement may be renewed on terms and conditions and at rates agreed
to in writing by the parties, provided that neither party is in default under
this Agreement. The Initial Term, and any extension thereof in accordance with
the preceding sentence, shall automatically end, with no further liability or
obligation on the part of Motient and no further liability or obligation on the
part of PNC for future prepayments, upon the end-of-life of Motient’s satellite
(“EOL”), which is defined as the earlier of: [*].


 


9.             Section
1.2 (“Service Capacity Limit”) of the Satellite Network Agreement is hereby
amended and restated in its entirety as follows:


 


[*]


 












* Confidential information.  Information has been redacted.


 


3

















 


(b)           All
Service used by PNC will count against the Capacity Limit. Unless agreed
otherwise in writing by Motient, PNC’s use of the Service shall be limited to
Service consumed in connection with PNC’s assumption and provision of the
Transportation Business pursuant to the Asset Sale Agreement. During the Term
of the Agreement for so long as there is satellite capacity available on the
Motient satellite, Motient shall provide Service to PNC in excess of the
Capacity Limit, on terms and conditions satisfactory to both parties.”


 


10.           Subject
to MOTIENT SERVICES receiving the required approvals and consents of the other
investors in MOBILE SATELLITE VENTURES LLC (formerly MOTIENT SATELLITE VENTURES
LLC) (including TMI Communications and Company, LP), Section 2.1 of the
Satellite Network Agreement is hereby amended by adding the following:


 


“MOTIENT SERVICES agrees to provide Services under the
Satellite Network Agreement at a charge no greater $[*] dollars per kilohertz
per year from November 29, 2004 throughout the remaining term of such
Agreement.”


 


MOTIENT SERVICES shall use its best efforts to obtain
such required approvals and consents to the amendment set forth in this
Paragraph 10. If MOTIENT SERVICES is unable to obtain such required approvals
and consents, the price for the Services shall remain at $[*] per watt per year
and $[*] per kilohertz per year.


 


11.           The
following sentence is hereby added to the end of Section 2.1(e) of the
Satellite Network Agreement:


 


[*]


 












* Confidential information.  Information has been redacted.


 


4

















 


12.           MOTIENT
SERVICES will provide AETHER Usage Reports monthly pursuant to Section 2.1(d)
of the Satellite Network Agreement.


 


13.           MOTIENT
COMMUNICATIONS, MOTIENT SERVICES and AETHER agree to complete the Joint
Operations Plan between MOTIENT COMMUNICATIONS, MOTIENT SERVICES and AETHER no
later than October 31, 2001.


 


Except as set forth is this Amendment, the Terrestrial
Network Agreement and the Satellite Network Agreement are unchanged and remain
in full force and effect.


 


IN WITNESS WHEREOF, MOTIENT COMMUNICATIONS, MOTIENT
SERVICES, and AETHER have caused this Amendment to be signed and delivered by their
duly authorized representatives, all as of the Amendment Effective Date.


 












* Confidential information.  Information has been redacted.


 


5

















 


	
  MOTIENT COMMUNICATIONS INC.

  	
  AETHER
  SYSTEMS, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Walter V. Purnell, Jr.

  	
   

  	
  By:

  	
  /s/ David C. Reymann

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Walter V. Purnell, Jr.

  	
   

  	
  Name:

  	
  David C. Reymann

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  President and C.E.O.

  	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  October 10, 2001

  	
   

  	
  Date:

  	
  October 10, 2001

  	
   

  
													



 


 


	
  MOTIENT
  SERVICES INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Walter V. Purnell, Jr.

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Walter V. Purnell, Jr.

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  President and C.E.O.

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  October 10, 2001

  	
   

  	
   

  
								



 












* Confidential information.  Information has been redacted.


 


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