**Exhibit10.8**

 

**PRIVATE NETWORKSATELLITE SERVICES AGREEMENT**

 

This PRIVATE NETWORK SATELLITE SERVICES AGREEMENT(“Agreement”) is made as of this 29th day of November, 2000, by and between **Motient Services Inc.** (“Motient”), awholly-owned subsidiary of **MotientCorporation**, both of which are Delaware corporations having theirprincipal places of business at 10802 Parkridge Boulevard, Reston, Virginia201915416, and **Aether Systems, Inc.**,(“private network customer,” or “PNC”) a Delaware corporation having its principalplace of business at 11460 Cronridge Drive, Owings Mills, Maryland, 21117.

 

**WHEREAS,** [*]

 

**WHEREAS,** Motient’sservice lines include the sale of mobile satellite service on a private networkbasis to its customers for their use and/or resale; and

 

**WHEREAS,** Motientand PNC have entered into an agreement whereby Motient will sell to PNC certainof Motient’s assets related to or used or useful in Motient’s wirelesscommunications business for the transportation industry (the “TransportationBusiness”), excluding Motient’s FCC licenses, all as set forth in greaterdetail in the Asset Sale Agreement, dated November 29, 2000, by and betweenMotient Services Inc. and PNC (the “Asset Sale Agreement”); and

 

**WHEREAS,** the AssetSale Agreement contemplates that Motient and PNC will enter into this Agreementfor the purpose of enabling PNC to resell the Service (as defined below) inconnection with its assumption of the Transportation Business pursuant to theAsset Sale Agreement; and

 

**WHEREAS, PNC**iswilling and desirous of purchasing mobile satellite service (the “Service”) ona watt-hour basis on the terms and conditions act forth in this Agreement.

 

**NOW, THEREFORE,** theparties agree as follows:

 

# **Article OneTerm; Relationship of the Parties**

 

## **1.1**          Term:

 

This Agreement shall begin on November 29, 2000 andshall end on November 29, 2004 (“Initial Term”) At the end of the Initial Term,this Agreement may be renewed on terms and conditions and at rates agreed to inwriting by the parties, provided that neither party is in default under thisAgreement. Notwithstanding the foregoing, if, at the end of the Initial Term,PNC has made all of the prepayments described in section 2.1(c) below, but hasnot then consumed the Capacity Limit (as defined in section 1.2 below), and ifPNC wishes to continue to receive the Service, the term of the Agreement shallbe extended, with and subject to the same terms and conditions, until such datethat PNC has used all of the Capacity Limit. The Initial Term, and anyextension thereof in accordance with the preceding sentence, shall alsoautomatically end, with no further liability or obligation on the part ofMotient, upon the end-of-life of Motient’s satellite, which is defined as theearlier of: [*]

 

----

* Confidential information. Information has beenredacted. 

 

----

 

## **1.2**          Service CapacityLimit:

 

The maximum amount of Services that may be provided toPNC pursuant to this Agreement (the “Capacity Limit”), as measured in Watts andKilohertz consumed, shall be, subject to availability, as set forth below:

 
| **Year** |   | **Watts** |   | **Kilohertz** |   |
|----------|--------|-----------|--------|---------------|--------|
| 1        |   | [*]       |   | [*]           |   |
| 2        |   | [*]       |   | [*]           |   |
| 3        |   | [*]       |   | [*]           |   |
| 4        |   | [*]       |   | [*]           |   |

 

All Service used by PNC will count against theCapacity Limit. Unless agreed otherwise in writing by Motient, PNC’s use of theService shall be limited to Service Consumed in connection with PNC’sassumption and provision of the Transportation Business pursuant to the AssetSale Agreement. During the Term of the Agreement, Motient may, upon request ofPNC and subject to availability, choose to provide Service to PNC in excess ofthe Capacity Limit, on terms and conditions satisfactory to Motient; Motientshall not be under any obligation to provide such Service.

 

## **1.3**          PNC’sresponsibilities:

 

PNC’s responsibilities under this Agreement shallinclude, in addition to any others stated in this Agreement -

 

### (a)           Marketingand promotion: PNC shall market and promote the Service to its customersand potential customers on a “private label” basis. PNC shall not use Motient’sname, brand names, trademarks or servicemarks without Motient’s advance writtenconsent. Notwithstanding the foregoing, PNC may identify Motient as itssatellite service provider.

###  

### (b)           Facilitiesprovided by PNC: With respect to the “satellite only” and “multi-mode”mobile messaging services included in the Transportation Business and beingsold to PNC pursuant to the Asset Sale Agreement, the parties have agreed onthe configuration of all facilities necessary to enable PNC to obtain theService in order to resell such messaging services to customers in theTransportation Business (such facilities and configuration, the “CurrentFacilities”). Such agreement is set forth, in part in the Transition ServicesPlan incorporated in the Asset Sale Agreement, as well as an Land Earth StationServices Agreement to be entered into by Motient and PNC on the date hereof.

###  

With respect to any new or additional services orapplications (“New Offerings”) that PNC may choose to offer in the futuremaking use of the Service, PNC shall be responsible, at its sole expense, forproviding or arranging for the provision of all other communications servicesand facilities required for its and its customers’ use of the Service, exceptfor the communications services and facilities described in section 1.4 of thisAgreement. Without limitation, for any New Offerings PNC shall provide allnecessary downlink equipment, including 70 MHz receivers and usage data files,and PNC shall arrange for termination and

 

----

* Confidential Information. Information has been redacted. 

 

----

 

installation of necessary data lines at Motient’sfacility, provided that installation shall be coordinated with Motient andshall not interfere with the operation of Motient’s own facilities. For any NewOfferings, the facilities to be provided by PNC shall be more specificallydefined in a technical document to be agreed upon in writing by the partiespursuant to section 1.5 of this Agreement.

 

### (c)           Otherfacilities requirements:

###  

#### (1)           Compliancewith Motient requirements and standards: All of PNC’s communications facilities or services used or provided inconnection with the purchase or use of the Service, including, withoutlimitation, mobile terminals for use by PNC’s customers, PNC’s interconnectionfacilities and equipment, if any, shall comply with all applicable technicaland other requirements, including but not limited to those of Motient and theFCC. Motient will provide its applicable requirements to PNC upon request;Motient reserves the right to change such requirements from time to time, uponreasonable notice to PNC.  PNC shallassure that its customers utilize the Service in accordance with anyrequirements and/or procedures specified by Motient pursuant to anyimplementation Plan entered into by the parties pursuant to section 1.5 of thisAgreement.

####  

#### (2)           Licensesand permits: PNC shall secure all licenses, permits, rights-of-way,approvals, and any other arrangements required to be secured by PNC for PNC’suse and the provision of the Service to PNC’s customers, including withoutlimitation any FCC or other governmental licenses, permits or approvalsrequired in connection with the interconnection facilities which PNC mayprovide as set forth herein, excluding for the avoidance of doubt all suchlicenses, permits, rights-of-way, approvals, or other arrangements that arebeing transferred to PNC pursuant to the Asset Sale Agreement.

####  

#### (3)           Motientright of access: For the protection of Motient’s network, services,facilities and personnel, PNC hereby grants Motient the right at any time, andfrom time to time, upon reasonable prior notice except in the case of anemergency, to inspect all equipment and communications facilities or servicesused or provided by PNC for use with Motient’s mobile satellite system ifMotient has a reasonable basis to believe that such facilities would interferewith the operation of Motient’s facilities or impair Motient’s compliance withapplicable law or regulations.

####  

## **1.4**          Motient’sResponsibilities:

## ** **

### (a)           Inaddition to any other responsibilities contained herein, Motient will providethe Service for use throughout the United States, in Puerto Rico, the U.S.Virgin Islands, and points up to 200 miles offshore, and other areas within thecoverage of Motient’s satellite, provided that Motient has received regulatoryapproval to provide Service in such other areas. In connection with itsprovision of the Service, Motient will be responsible for providing andmaintaining its Satellite, earth stations, and other network components ownedby Motient and used in providing the Service.

###  

### (b)           Motientwill provide the Current Facilities, as in place at the time this Agreement issigned, and as further described in the Transition Services Plan incorporatedin the Asset Sale

 

----

 

### Agreement and in the Land Earth Station ServicesAgreement. For any New Offerings, Motient and PNC cooperate to agree on theprovision of appropriate facilities and space for rack(s) of uplink equipmentto be provided by PNC. As part of such agreement with respect to any NewOfferings, Motient will also agree to provide use of its “house clock” andpower, and will agree to terminate such number of data lines as the parties mayagree in the technical document to be developed pursuant to the provisions ofsection 1.5 of this Agreement. Termination of data lines does not includeprovision of telephone service, but only connection of the lines to the centraloffice.

###  

### (c)           Motientshall cooperate with PNC in its efforts to secure any licenses, authorizations,or other government approvals needed to interconnect with and/or make use ofMotient’s facilities. provided under this Agreement to offer the Service.

###  

### (d)           TheService Level Commitments and Escalation Procedures set forth in Exhibit Ato this Agreement are incorporated by reference herein.

###  

## **1.5**          Service integrationwith respect to New Offerings:

## ** **

### (a)           Forany New Offerings, the parties shall enter into a plan for testing andimplementation of the Service with respect to such New Offerings(“Implementation Plan”). The Implementation Plan shall address, at a minimum,the following:

###  

#### (1)           Theschedule for implementation of the Service by PNC;

####  

#### (2)           Installation,integration, and testing of PNC equipment located at Motient with Motient’sfacilities and services;

####  

#### (3)           Integrationof and testing of the Service with PNC’s other products, services, andfacilities;

####  

#### (4)           Processesand procedures for maintenance and repair.

####  

### (b)           Pursuantto the Implementation Plan, the parties shall prepare and agree in writing upona technical document that describes the facilities, equipment, and any relatedservices to be provided by each party.

###  

### (c)           Motientshall make available to PNC, [*] a commercially reasonable level of “secondlevel” technical assistance, i.e., assistance with the Motient satellitenetwork, RF engineering assistance relating to the integration of the Serviceswith PNC’s facilities, and assistance with the use of the Service by PNC. Theparties acknowledge and agree that all “first level” assistance, i.e., customersupport and assistance for end users of PNC’s product offerings, shall be theobligation of PNC. [*]

 

----

* Confidentialinformation.  Information has beenredacted.

 

----

 

## **1.6**          Fraud prevention:

 

### (a)           TheService is provided to PNC subject to the condition that PNC will not engagein, and will require its customers not to engage in, abuse or fraudulent usethereof. Abuse and fraudulent use include, but are not limited to, thefollowing:

###  

#### (1)           Obtainingor attempting to obtain Service through any trick, scheme, falserepresentation, false credit device, or other facilities, with the intent toavoid payment, in whole or in part, of the charges for the Service; or

####  

#### (2)           Interrupting,altering, or interfering with, or attempting to interrupt, alter, or interferewith, any tiles, programs, information and/or the use of the Service of anotherMotient customer or user; or

####  

#### (3)           Assistinganother to perform any of the acts prohibited in subparagraph (1) or (2) ofthis paragraph (a).

####  

### (b)           PNCand Motient shall cooperate to prevent abuse or fraudulent usage of theService, and PNC shall terminate any of PNC’s customers, or participation in oraccess to the Service by its vendors, promptly, but in no event more than 24hours after receipt of notice from Motient, in the event of their abuse orfraudulent use of or access to the Service or any other Motient facility.

###  

## **1.7**          General:

## ** **

### (a)           Contactsand coordination: The parties shall appoint and identify to one another inwriting such contacts as are reasonably necessary for coordination of mattersrelating to technical, administrative, and billing functions and activities, aswell as any other appropriate matters. To the extent necessary, each partyshall identify a single point of contact for the development and performance ofany Implementation Plan provided for in section 1.5(a) of this Agreement.

###  

### (b)           Advertisingand promotion:

###  

#### (1)           Alladvertising and promotion by the parties shall conform to the standards oflawful advertising. All advertising and promotional materials prepared by aparty which refer to the other party, or any other public statements referringto the terms of this Agreement, shall be submitted to the other party inadvance for written approval. Such written approval (i) shall not unreasonablybe withheld, conditioned, or delayed and shall be deemed given if such otherparty does not object to the submission within ten (10) business days afterreceipt thereof, and (ii) shall not relieve the generating party ofresponsibility for legal compliance with the advertisement. Materialspreviously approved by a party shall not be subject to repeated approvalsbefore subsequent use.

####  

#### (2)           Neitherparty shall have any right, title or interest in or to the other’s name, logo,trademarks or other trade designations, and neither party shall make any usethereof without the express prior written permission of the other.

####  

#### (3)           Nothingherein is intended to prohibit PNC from identifying Motient as PNC’s satelliteservice provider, and PNC shall not be required to obtain Motient’s priorwritten approval for any such statement or identification in any advertising orpromotional materials.

 

----

 

### (c)           Ethicalresponsibilities of the parties: Motient and PNC shall each refrain fromdoing anything that would tend to discredit, dishonor, reflect adversely upon,or in any manner injure the reputation of the other or adversely affect theother, or, in the case of Motient, adversely affect Motient’s status as alicensed common carrier, except that a party’s enforcement of its rights andperformance of its duties and obligations contained heroin shall not be deemed aviolation of the provisions of this paragraph (c).  Each party shall be governed in all its dealings under thisAgreement by the highest standards of honesty, integrity, and fair dealing.

 

----

 

# **Article TwoRates, Billing, and Payment**

 

## **2.1**          Rates and charges;prepayments:

 

The rates for the Service are as follows:

 

### (a)           Service:

###  

| Per  Watt per year:      | [*] |
|--------------------------|-----|
| Per  Kilohertz per year: | [*] |

 

### (b)           Rackrental:

###  

[*]

 

### (c)           PrepaymentObligation: PNC agrees to prepay Motient for the Services, according to thefollowing schedule:

###  

[*]

 

### (d)           UsageReports:

###  

[*].

 

### (e)           Paymentfor Excess Usage:

###  

[*]

 

## **2.2**          Taxes:

 

All rates set forth in this Agreement are exclusive ofApplicable Taxes, which shall be the responsibility of PNC. For purposes ofthis Agreement, “Applicable Taxes” are taxes, assessments, surcharges, levies,or similar items assessed by a governmental body. Unless an appropriate taxexemption certificate is provided, PNC is liable for, and shall indemnifyMotient from and against all Applicable Taxes properly chargeable to PNC or itscustomers with respect to Motient’s provision of the Service to PNC or relatingto PNC’s purchase, use, resale, or lease of the Service to PNC’s customers orothers, and/or any penalty and interest thereon if assessed by the applicablegovernmental body. Motient will invoice PNC for such penalties and interest,and PNC shall pay such invoices in accordance with the provisions of section2.3 of this Agreement. PNC shall not be responsible for Motient’s income taxobligations in connection with Motient’s provision of the Service to PNC.

 

## **2.3**          Terms of payment:

## ** **

### (a)           Paymentdue date: [*].  All amounts invoicedunder this Agreement shall be payable 30 days from the date of invoice.

 

----

* Confidential Information. Information has been redacted. 

 

----

 

### (b)           DisputedAmounts:  The parties shall meet toresolve any dispute concerning the amount duo on any invoice. If the partiesare unable to resolve the dispute, it shall be resolved pursuant to the auditprocedure set forth in section 2.4. If the parties agree that PNC is liable fornot less than the entire disputed amount, interest shall be due and calculatedfrom the due date of the invoice, and PNC shall make the agreed-upon paymentwithin 15 days of such agreement.

###  

### (c)           Collectioncosts:  If Motient takes any actionto collect any unpaid balance due from PNC, Motient shall be entitled torecover from PNC all reasonable costs of collection incurred by Motient,including collection fees; reasonable attorney’s fees, and litigation expenses.Motient will invoice PNC for such charges, and PNC shall pay such invoices inaccordance with the provisions of paragraph (a) of this section.

###  

## **2.4**          Recordkeeping andaudit:

 

(a)           Maintenanceof records: Each party shall, directly or through a third party servicebureau, create and maintain full, complete and accurate records of businessconducted pursuant to this Agreement, including but not limited to datarelating to invoices, payments, and Service credits. Records shall be retainedfor the longer of two (2) years after the termination of this Agreement, or aslong as required by applicable law.

 

(b)           Requestfor audit: If the parties have a bona fide dispute as to the amounts paidor unpaid, owed and owing hereunder, each party reserves the right to request,no more frequently than annually, an audit of the records maintained by theother party in connection with the transactions contemplated hereby.

 

(c)           Performanceof audit: Such an audit shall be performed by an independent accountingfirm agreed upon by Motient and PNC and shall be subject to the audited party’sstandard security and confidentiality procedures. To the extent the auditedparty identifies its records as confidential and/or proprietary, it may directthat the other party shall have access only to the results of the audit and notto the underlying records which are the subject of the audit.

 

(d)           Costof audit: The party requesting the audit under this section 2A shall payall of the costs thereof, unless the audit results in an adjustment to amountsdue to or from the other party in excess of ten percent (10%) of the totalamount due, in which case the audited party shall pay three-quarters of thecosts thereof.

 

# **Article ThreeArticle Three Use of Service**

# ** **

## **3.1**          Regulatory matters:

## ** **

### (a)           Lawfulpurposes: PNC and its customers shall utilize the Service only for lawfulpurposes and in compliance with all applicable rules, policies, and regulationsof the FCC and those of any other Federal, State, or local governmental bodies.

###  

### (b)           Relationshipto FCC: All MSS provided by Motient, including the Service as providedunder this Agreement, is subject to applicable law, including FCC rules andregulations. PNC hereby consents to the filing of this Agreement with the FCCif required by applicable law and

 

----

 

### regulation.  Motientshall advise PNC in advance of such a filing. Without limitation, this Agreement is contingent upon receipt of anynecessary approvals and authorizations of the Federal CommunicationsCommission. The parties will cooperate to seek such approvals and coordination,provided that Motient will be responsible for frequency coordination. However,nothing in this Agreement shall be construed to effectuate an unauthorizedtransfer of control of Motient’s licensed facilities to PNC. Motient remainsresponsible for control of those facilities under FCC rules and must itselffile for any license renewals or other regulatory approvals.

###  

### (c)           Allocationof capacity: PNC acknowledges and agrees that (i) MSS capacity, includingthe Service, is finite and will be made available to Motient’s customers,including PNC, on a first-come, first-served basis, subject to the availabilityof MSAT capacity, and (ii) Motient reserves the right, in its sole discretion,to allocate satellite capacity among all of its services.

###  

## **3.2**          Preemption,interruption, or suspension of Service:

## ** **

### (a)           EmergencyPreemption:  PNC’s or its customers’use of the Service may be preempted, interrupted or suspended due toconditions, or for reasons, beyond Motient’s control (“Emergency Preemption”),including but not limited to maintenance requirements or emergency conditionsexperienced by Motient; to protect Motient’s personnel, facilities or services;to provide priority and preemptive access to Motient’s satellite system asrequired by the U.S. Coast Guard; to provide responsive emergency supportduring any natural or man-made disasters.

###  

### (b)           Noticeto PNC:  In the event of EmergencyPreemption, Motient shall notify PNC soon as practicable and shall use its bestefforts to restore service as quickly as practicable.

###  

### (c)           Scheduledmaintenance: The use of the Service may be interrupted due to scheduled.maintenance, subject to advance notice to PNC. Motient will use its bestefforts to provide as much notice as reasonably possible of scheduled maintenance.

###  

## **3.3**          Service credits:

 

### (a)           Motientwill grant to PNC a service credit in the event of Service outages, includingoutages caused by Emergency Preemption, as set forth in this section 3.3. Noservice credit will be granted where the Service is interrupted or unavailabledue to the negligence of PNC or to the failure of facilities and equipmentprovided by PNC or its other communications providers.

###  

#### (1)           PNCshall accrue credit for future Service in an amount equal to the actual periodof time for which the Service is completely unavailable for a period of onehour or more. Motient shall maintain a log of all such service credits andshall grant a credit to PNC on the next quarterly summary provided to PNCpursuant to section 2.1(c) above, The amount of such Service credit shall bedetermined by reference to the difference between (i) the amount of Servicecapacity then requested to be used by PNC (“Active Capacity”) and (ii) theService capacity actually provided to PNC, for every 24 hour period during whichsuch Service outage or other deficiency existed. The Service credit amount willbe based on the price per Watt and the price per Kilohertz set forth in section2.1(a) above, divided by 365 days.

 

----

 

#### (2)           Wherethe Service remains available but is modified or restricted so as to affectadversely the Service for a period of 24 hours or more, Motient shall provide acredit allowance for future Service. The parties shall negotiate an appropriatecredit based on the extent and duration of such modification or restrictionhour. [*]

####  

#### (3)           Nocredit allowance will be given where the Service is preempted, interrupted,suspended, modified, or restricted for a period of less than one (1) hour.

####  

### (b)           Theliability of Motient for any interruption of the Service shall in no eventexceed the credit allowance provided for in this section 3,3. except for suchcredit allowance, Motient shall not be liable to PNC for any loss or damageincurred by reason of or incidental to any delay or interruption of theService.

###  

### (c)           Tothe extent PNC has a credit allowance remaining when the Initial Term or anyextensions or renewals thereof expire, Motient shall monetize and refund suchcredits within 90 days; provided, that if PNC has actually used the entireCapacity Limit, it shall not be entitled to any refund for remaining Servicecredits.

###  

## **3.4**          Warranty:

 

### (a)           Motientwarrants that the Service will operate in accordance with the standards setforth in the document entitled “Service Level Commitments and EscalationProcedures” attached as Exhibit A to this Agreement. The commitment withrespect to network availability set forth in such document shall be measured ona rolling twelve (12) month basis. The foregoing warranties are subject to PNCutilizing the Service in accordance with Motient’s published user manuals andoperational guidelines which are made available to all of its private networkcustomers and resellers.

###  

### (b)           EXCEPTAS OTHERWISE PROVIDED IN THIS AGREEMENT, MOTIENT MAKES NO WARRANTY REGARDINGTHE PROVISION OF THE SERVICE, INCLUDING BUT NOT LIMITED TO THE IMPLIEDWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

###  

## **3.5**          Limitation ofliability:

## ** **

### (a)           Inno event will either party be liable for any indirect, consequential, orspecial damages, or for any lost profits, even if advised of the possibility ofthe same. In no event will Motient be responsible for the failure of PNC and/orits equipment and/or service suppliers to perform their respectiveresponsibilities. Without limiting the foregoing, Motient shall in no event beliable for:

###  

#### (1)           Anyact or omission of PNC or any defect or malfunction in any equipment orservices provided or used by PNC or its service and/or equipment suppliers; or

 

----

* Confidentialinformation.  Information has beenredacted.

 

----

 

#### (2)           Unlawfulor unauthorized use of Motient’s facilities and services caused by thenegligence or willful misconduct of PNC and/or PNC’s customers;

####  

#### (3)           Libel,slander, infringement of copyright, or any other claim based on message contentarising from or in connection with messages transmitted via the Service, unlessthe libel, slander or infringement results solely from the gross negligence orwillful misconduct of Motient; or

####  

#### (4)           Theunauthorized access to, or alteration, theft, or destruction of data and/or informationof PNC by any person, whether through accident or fraudulent means or devices,whether caused by interruption, errors, defects, delays in operation, failureof performance, unless caused solely by the gross negligence or willfulmisconduct of Motient; or

####  

#### (5)           Anyclaim arising out of a breach in the privacy or security of communicationstransmitted over Motient’s facilities unless such breach arises out of thegross negligence or willful misconduct of Motient;

####  

#### (6)           Changesin any of Motient’s facilities, operations or procedures required by any othergovernmental authority or entity which render any facilities or servicesprovided by Motient or PNC obsolete, or require material modification oralteration of PNC’s facilities or services, or otherwise affect their use orperformance.

####  

### (b)           Motient’sliability for any other damages asserted by PNC under this section 3.5 or undersection 3.6 shall be limited to PNC’s actual damages due to Motient’snegligence or willful acts and shall in no event exceed $[*] per occurrence,excluding any Service credits as provided in section 3.3 of this Agreement.

###  

### (c)           Tothe extent that any Service or facilities provided hereunder are provided bythird parties pursuant to arrangement with Motient, the disclaimer of orlimitations on Motient’s liability, as stated in this section 3.5, shall extendfully to such third parties.

###  

### (d)           PNCrecognizes that Motient may, from time to time, obtain satellite capacity forPNC from TMI Communications and Company, Limited Partnership (“TMI”) theauthorized provider of mobile satellite service in Canada. PNC agrees that, insuch event, TMI and its officers, directors, employees, shareholders, partners,investors and agents shall not be liable, for any reason whatsoever, whether incontract or tort or under any other theory of law, for damages related in anyway to the provision of the Service hereunder arising out of an act or omissionof TMI or resulting from the use of services under this Agreement, includingbut not limited to any fault in TMI’s MSAT which results in failure toestablish service, delays, in-service interruption, degradation or loss ordistortion of services.

###  

## **3.6**          Indemnification:

 

### (a)           Motientshall in no event be liable to PNC, and provided that Motient complies with theprovisions of paragraph (b) of this section 3.6, PNC shall indemnity and holdharmless Motient against loss and/or liability for any of the following,subject to the limitation set forth in the first sentence of section 3.5(a) ofthis Agreement and subject to a cap of $[*] per occurrence, excluding anyprepayment or invoice obligation:

###  

### 

### * Confidential information. Information has beenredacted. 

###  

### 

 

#### (1)           Thecontent or addressing of any message transmitted by PNC or any claim of libel,slander, or infringement of copyright against Motient arising from or inconnection with the transmission of messages via the Service unless the libel,slander or infringement results solely from the gross negligence or willfulmisconduct of Motient; or

####  

#### (2)           Anyintentional misconduct or gross negligence of any other entity furnishingproducts or services, not authorized by Motient, which are used by PNC inconnection with the Service; or

####  

#### (3)           noinfringement of patents, trademarks or copyrights currently filed, arising fromthe combination or use of Motient-provided facilities with facilities orservices provided by PNC or any other entity acting on PNC’s behalf or at PNC’srequest, including PNC’s service and/or equipment vendors; or

####  

#### (4)           anyloss, liability, damage, or expense caused to Motient and/or its facilities bythe negligence or willful acts or omissions of PNC and by its users, equipmentand/or service vendors.

####  

### (b)           Motientshall promptly notify PNC in writing of any claim, action or suit assertedagainst Motient based upon the events specified in paragraph (a) of thissection 3.6 and shall reasonably . cooperate with PNC in the defense thereof.PNC shall, at its expense and using counsel acceptable to Motient, resist andassume responsibility for the defense of such litigation, provided that Motientmay, at its sole expense, participate in the defense of any such claim, actionor suit. PNC shall have the right to control the defense and any settlement ofsuch claim, action or suit. PNC shall pay all expenses and satisfy alljudgments, including reasonable attorneys’ fees and litigation expenses, whichmay be incurred by or rendered against Motient in connection therewith.

###  

### (c)           PNCshall in no event be liable to Motient, and provided that PNC complies with theprovisions of paragraph (a) of this section 3.6, Motient shall indemnify andhold harmless PNC against loss and/or liability for any of the following,subject to the limitations set forth in section 3.5(a).,

###  

#### (1)           Anyintentional misconduct or gross negligence of any other entity furnishingproducts or services, not authorized by PNC, which are used by Motient inconnection with the Service that is provided to PNC; or

####  

#### (2)           anyloss, liability, damage, or expense caused to PNC and/or its facilities by thenegligence or willful acts or omissions of Motient and by its equipment and/orservice vendors in connection with their provision of equipment or services toMotient for the Service.

####  

### (d)           PNCshall in no event be liable to Motient, and Motient shall, without limitation,indemnify and hold harmless PNC against loss and/or liability for infringementof currently filed patents, or trademarks, or copyrights arising from thecombination or use of PNC-provided facilities with facilities or servicesprovided by Motient or any other entity acting on Motient’s behalf or atMotient’s request, including Motient’s service and/or equipment vendors.

 

----

 

### (e)           PNCshall promptly notify Motient in writing of any claim, action or suit assertedagainst PNC based upon the events specified in paragraphs (c) and (d) of thissection 3.6 and shall reasonably cooperate with Motient in the defense thereof.Motient shall, at its expense and using counsel acceptable to PNC, resist andassume responsibility for the defense of such litigation, provided that PNCmay, at its solo expense, participate in the defense of any such claim, actionor suit. Motient shall have the right to control the defense and any settlementof such claim, action or suit. Motient shall pay all expenses and satisfy all judgments,including reasonable attorneys’ fees and litigation expenses, which may beincurred by or rendered against PNC in connection therewith.

###  

### (f)            Insurance:Both parties shall maintain at all times during the term, including any RenewalTerm, of this Agreement (i) Worker’s Compensation insurance as prescribed bythe law of the states) in which either party is located; (ii) employer’sliability insurance with limits of at least $300,000 for each occurrence; (iii)comprehensive automobile liability insurance if the use of motor vehicles isrequired, with limits of at least $1,000,000 combined single limit for bodilyinjury and property damage for each occurrence; (iv) Commercial GeneralLiability (“CGL’) insurance, including Blanket Contractual Liability and BroadForm Property Damage, with limits of at least $1,000,000 combined single limitfor bodily injury and property damage for each occurrence; and (v) and umbrellaexcess liability policy. All liability and CGL insurance shall designateMotient and its affiliates as an additional insured. All such insurance must beprimary and required to respond and pay prior to any other available coverage,and shall be with an insurance carrier having an A.M. Best rating of at leastA-VII.

###  

## **3.7**          Force majeure:

 

Neither party shall be liable for any failure ofperformance due to causes beyond its control, including, but not limited to,acts of God, fires, floods or other catastrophes; national emergencies,insurrections, riots or wars; strikes, lockouts, work stoppages or other labordifficulties; and any law, order, regulation or other action of any governingauthority or agency thereof.

 

# **Article FourTermination and Remedies**

 

## **4.1**          Termination byMotient:

 

Motient may suspend or terminate the provision of theService hereunder to PNC and/or terminate this Agreement without any liabilityof Motient to PNC or any third party in the event of a default by PNC. PNCshall be deemed to be in default under any of the following circumstances:

 

### (a)           PNCfails to pay all undisputed charges hereunder, including, without limitation,all charges based on the Minimum Annual Take Rates, within fifteen (15) daysafter receipt of notice from Motient that the same are overdue;

###  

### (b)           Anycourt, administrative agency, or other governmental authority havingjurisdiction over PNC finds that PNC’s use of the Service is in violation ofany statute or law or of any order, rule or regulation of any Court, agency orgovernment authority, and such violation is not

 

----

 

### corrected as soon, as possible, but in no event morethan thirty (30) days after written demand therefor is received by PNC fromMotient;

###  

### (c)           Theuse of the Service by PNC, or its customers, or equipment and facilitiesprovided by PNC under this Agreement which are not operated in accordance withMotient’s procedures as notified to PNC in writing, interfere with the Serviceor Motient facilities or the provision of the Service to other of Motient’scustomers, and such interference or harm is not corrected immediately upon thewritten demand of Motient, or, if such interference or harm is not susceptibleof immediate cure, if PNC does not immediately commence and diligently work tocorrect such interference and harm, which must, in any event, be correctedwithin two (2) business days after receipt of notice from Modem; or

###  

### (d)           PNCor any of PNC’s customers uses an unauthorized mobile terminal (i.e., a mobileterminal that has not been FCC type approved and Motient network certified) ora mobile terminal which has been modified without the prior approval ofMotient, in any call using the Service, and such use is not stopped within assoon as reasonably possible, but in no event more than twenty four (24) hoursafter written demand therefor is received by PNC from Motient, or if such useis repeated by PNC or such customer at any time after such 24-hour periodprovided, however, that PNC shall not be deemed to be in default under thisparagraph (d) if PNC has terminated or authorized the termination of suchcustomer’s use of the Service; or

###  

### (e)           PNCmakes an unauthorized assignment of its rights, duties and/or obligations underthis Agreement.

###  

### (f)            Terminationunder this section 4.1 shall be effective immediately upon receipt by PNC ofwritten notice of default, or at the end of such period as Motient may grantfor cure of the default.

###  

## **4.2**          Termination by eitherparty:

 

Either Motient or PNC (the “Terminating Party) mayterminate this Agreement and the use of the Service hereunder without anyliability to the other or, in the case. of a termination by Motient to anythird party, if the other party (the “Defaulting Party”) is in default of theprovisions of this Agreement. For purposes of this section 4.2, a default shallbe any of the following:

 

### (a)           theDefaulting party dissolves or liquidates, or transfers all or substantially allof its assets to another person or entity otherwise than as permitted undersection 5.2 of this Agreement; or

###  

### (b)           theDefaulting Party becomes the subject of voluntary or involuntary bankruptcy,insolvency, reorganization or liquidation proceedings, makes an assignment forthe benefit of creditors, or admits in writing its inability to pay its debtsas they mature, or a receiver is appointed or any of its assets or properties,and the same is not dismissed, vacated, or stayed within ninety (90) days; or

###  

### (c)           theDefaulting Party fails to perform or observe in all material respects and in atimely manner any term, condition, or covenant to be performed by it under thisAgreement, the breach of which is not the subject of a separate provision inthis Article 4, within thirty (30) days after receipt of written noticedescribing such failure in reasonable detail, provided, however, that if

 

----

 

### such failure is not reasonably susceptible of curewithin thirty (30) days, it shall not be a breach hereunder if such partypromptly commences and diligently pursues a cure, reasonably acceptable to theTerminating Party, of such failure; or

###  

### (d)           theDefaulting Party provides any information to, or makes any representations orwarranties to, the other in connection with the Service, or otherwise inconnection with any information required to be provided by it hereunder, wasknown by the Defaulting Party to have been false or misleading in any materialrespect as of the date provided or made.

###  

### (e)           Terminationunder this section 4.2 shall be effective immediately upon receipt by theDefaulting Party of written notice of default, or at the end of such period asthe Terminating Party may grant the cure of the default,

###  

## **4.3**          Other remedies:

 

### (a)           Terminationfor default:  If the provision ofService under this Agreement is terminated for default, as described in section4.1 or 4.2 of this Agreement, the Terminating Party shall be entitled toexercise all remedies which maybe available to it, either at law or in equity,or both.

###  

### (b)           Othertermination:  Upon any terminationof the Agreement by PNC due to Motient’s default in accordance with Section 4.2above, Motient promptly shall refund or return to PNC, as appropriate, theprepayments described in section 2.1 above and/or all deposits, letters ofcredit and other forms of security provided by PNC and any Service creditbalance, less only such amounts as are due for use of the Service beforetermination and such other amounts as Motient reasonably shall determine aredue and owing, or will become due and owing, from PNC.

###  

### (c)           Immediatepayment:  In addition to any otherrights or remedies available to Motient under this Agreement or otherwise,Motient may demand immediate payment of all undisputed amounts billed andpayable at the time of the termination, as well as any other amounts duehereunder, (1) if the Service is terminated by Motient pursuant to section 4.1or 4.2 of this Agreement, (2) if PNC is delinquent in the payment of anyinvoice beyond any applicable grace period, or (3) if Motient has reason tobelieve that PNC is about to cease operations or go out of business or about toseek protection under any applicable bankruptcy or reorganization laws.

###  

### (d)           Actionsupon termination:  Upon terminationof this Agreement for any reason, PNC shall promptly, but in no event laterthan 30 days after termination, remove all of its equipment from Motient’sfacility.

###  

## **4.4**          Regulatory approvals:

 

If (a) Motient fails to obtain and maintain allrequired and material FCC or other government approvals for the provision ofthe Service in Motient’s authorized territory as described in this Agreement or(b) a final order of the FCC, or other government agency having jurisdiction,revoking or denying renewal of the MSS authorization granted to Motient isissued and becomes effective, PNC may, in its sole discretion, terminate thisAgreement in its entirety or to the extent or in the geographic areas wherePNC’s use or provision of the Service is affected by Motient’s failure or suchfinal order. If PNC terminates this Agreement in its entirety, then 

Motient shall

 

----

 

refund all PNC balances; if PNC terminates thisAgreement in part, then Motient shall refund a pro rata share of PNC balancescorresponding to the terminated portion of this Agreement.

 

# **Article FiveGeneral**

 

## **5.1**          Representations andwarranties:

 

Each party represents and warrants to the other that –

 

### (a)           itis fully authorized to enter into and perform this Agreement; this Agreementwhen executed, will be binding upon it; and it has made no misrepresentationsto the other party in connection with the negotiation, execution, orperformances of this Agreement; and

###  

### (b)           theexecution and performance of this Agreement does not and will not violate anyother contract, obligation, or instrument to which it is a party, or which isbinding upon it, including terms relating to covenants not to compete andconfidentiality obligations.

###  

## **5.2**          Assignment:

## ** **

### (a)           Motient:Motient shall have the right to assign this Agreement, including its rights andobligations under this Agreement, without consent of PNC, to such person orentity who shall from time to time hold the FCC license pursuant to which theService is authorized. Without limiting the generality of the foregoing,Motient may, without PNC’s prior consent, assign its rights and obligationsunder this Agreement to Motient Satellite Ventures LLC (or its successor)(“MSV”), pursuant to the transfer by Motient of its satellite communicationsbusiness, as a whole, to MSV as contemplated by that certain Asset SaleAgreement, dated June 29, 2000, by and between Motient and MSV; [*] Motientshall also have the unrestricted right to assign this Agreement, or any of itsrights hereunder, upon written notice to PNC, to any lender as collateralsecurity in connection with any financing arrangement of Motient, provided thatMotient shall remain responsible for performance of its responsibilitieshereunder.

###  

### (b)           PNC:  PNC shall not assign any of its rights andobligations under this Agreement to any other person, firm, agency, corporationor other legal entity, except its affiliates, without the prior writtenapproval of Motient, which shall not unreasonably be withheld, conditioned, ordelayed.

###  

## **5.3**          Successors andassigns:

 

This Agreement shall be binding upon and shall inureto the benefit of the parties hereto and their permitted assigns. ThisAgreement is entered into solely for the benefit of such parties. Nothingherein contained will be deemed to create any third party beneficiaries orconfer any benefit or rights on or to any person not a party hereto, and noperson not a party hereto shall be entitled to enforce any provisions hereof orexercise any rights hereunder.

 

----

* Confidential Information. Information has beenredacted. 

 

----

 

## **5.4**          No third Partybeneficiaries:

 

PNC shall be solely a value-added reseller of theService purchased from Motient, and the provision by Motient to PNC of theService is not part of any principal and agent relationship, employer andemployee relationship, or joint venture or partnership between Motient and PNC.This Agreement is entered into solely for the benefit of Motient and PNC and isfor the exclusive benefit of such parties. Nothing contained in this Agreementwill be deemed to create any third party beneficiaries or confer any benefit orrights on or to any person not a party hereto, and no person not a party hereto(including without limitation customers, vendors, or creditors of PNC) shall beentitled to enforce any provisions hereof or exercise any rights hereunder

 

## **5.5**          Notices:

 

### (a)           Allnotices and other communications hereunder shall be given in writing and shallbe deemed to have been duly given and effective (1) upon receipt if deliveredin person or by facsimile, (2) one (1) day after deposit prepaid with anational overnight express delivery service; or (3) three (3) days afterdeposit in the United States certified mail, postage prepaid, return receiptrequested:

###  

If to PNC:

 

Aether Systems, Inc.11460 Cronridge DriveOwings Mills, MD 21117

 

Attn:               Michael Pesto,Manager of Carrier Relations, Wireless Services DivisionPhone:            (410) 654-6400, x5297Facsimile:       (410) 654-6554Email:              mbpesto@aethersystems.com

 

If to Motient:

 

Motient Services Inc.10802 Parkridge BoulevardReston, VA 20191-5416

 

Attention: Vice President, Corporate Account SalesAttention:              Manager,ContractsFacsimile: 703/758-6134With a copy to the General Counsel, Motient, at the above address.

 

### (b)           Eachparty may designate by notice, delivered as described in paragraph (a) of thissection 5.5, a new address (or substitute or additional persons) to which anynotice, demand, request or communication may thereafter be so given, served orsent.

 

----

 

## **5.6**          Applicable law:

 

**THIS AGREEMENT, AND THE RIGHTS ANDOBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE CONSTRUED IN ACCORDANCE WITH ANDSHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT GIVINGEFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF. PNC AGREES THAT ANY ANDALL CAUSES OF ACTION, WHETHER OR NOT ARISING UNDER THIS AGREEMENT, BETWEEN THEPARTIES SHALL BE BROUGHT EXCLUSIVELY IN THE CIRCUIT COURT OF FAIRFAX COUNTY,VIRGINIA, OR IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.**

 

## **5.7**          Waiver andseverability:

 

### (a)           Neitherthe waiver by either of the parties hereto of a breach of or a default underany of the provisions of this Agreement, nor the failure of either of theparties, on one or more occasions to enforce any of the provisions of thisAgreement or to exercise any right or privilege hereunder shall thereafter beconstrued as a waiver of any subsequent breach of default of a similar nature,or as a waiver of any provisions, rights, or privileges hereunder. Any waiverunder this Agreement must be in writing.

###  

### (b)           Inthe event that any one or more of the provisions of this Agreement shall beheld by a court of competent jurisdiction to be invalid or unenforceable in anyrespect, such invalidity and unenforceability shall not affect any otherprovision of this Agreement, and the Agreement shall be construed as thoughsuch invalid and/or unenforceable provision(s) had never been contained herein.

###  

## **5.8**          Confidentiality:

 

### (a)           Eachparty agrees that it will not disclose the other’s confidential information andtrade secrets, including but not limited to data, software, documentation,client names and addresses, and all other proprietary information, to personsother than its employees and subcontractors who are required to have suchinformation for the furtherance of the purposes of this Agreement provided thatsuch employees and subcontractors must be bound by an obligation ofconfidentiality that is no less restrictive that that contained in thisAgreement. Each party shall take all steps reasonably necessary to protect theconfidential information of the other party from unauthorized disclosure. Thisobligation of confidentiality shall survive the termination of this Agreement.Upon termination of this Agreement, the receiving party shall return or destroythe disclosing party’s confidential information, at the request of thedisclosing party.

###  

### (b)           Nothingin this Agreement shall cause either party to have any rights or licenses inany inventions, patents, trade secrets, trademarks end/or copyrights of theother relating to the subject matter of this Agreement.

###  

## **5.9**          Modification:

## ** **

No amendment or modification to this Agreement shallbe valid unless made in writing and signed by the authorized representatives ofthe parties. As to Motient, the “authorized representatives” means bothMotient’s (a) General Counsel and (b) Chief Executive Officer, President, orany Vice President.

 

----

 

## **5.10**        Headings:

 

The headings and numbering of paragraphs in thisAgreement are for convenience only and shall not be construed to define orlimit any of the terms herein or affect the meaning of interpretation hereof.

 

## **5.11**        Entire agreement:

 

This Agreement, including all Appendices hereto,constitutes the entire agreement between the parties hereto and supersedes allprior oral or written agreements, representations, statements, negotiations,understandings, proposals, and undertakings with respect to the subject matterhereof.

 

**IN WITNESS WHEREOF, THE PARTIES HAVEENTERED INTO THIS PRIVATE NETWORK SATELLITE SERVICES AGREEMENT, EFFECTIVE AS OFTHE DATE FIRST WRITTEN ABOVE.**

 

----

 
| **MOTIENT SERVICES INC.** |   |   |
|---------------------------|--------|--------|
|                      |   |   |
|                      |   |   |
| Signature                 |   |   |
|                      |   |   |
|                      |   |   |
| Title                     |   |   |
|                      |   |   |
|                      |   |   |
| Name                      |   |   |
|                      |   |   |
|                      |   |   |
| Date                      |   |   |
|                      |   |   |
|                      |   |   |
| AETHER SYSTEMS,INC.       |   |   |
|                      |   |   |
|                      |   |   |
| Signature                 |   |   |
|                      |   |   |
|                      |   |   |
| Title                     |   |   |
|                      |   |   |
|                      |   |   |
| Name                      |   |   |
|                      |   |   |
|                      |   |   |
| Date                      |   |   |

 

----

 

**EXHIBIT A**

 

**Service LevelCommitments and Escalation Procedures**

 

Operations and Maintenance Responsibility - Motientwill be responsible for providing the appropriate power and bandwidth tosupport Aether authorized carriers. All Aether carriers will be documented byMotient approved Carrier Transmission Authorization forms. Motient will providean RF system availability (includes ground system and satellite) of 99.98% Inthe event that it becomes necessary to schedule downtime for the satellite orthe RF ground system, Aether will be notified at least 24 hours in advance. Inmost cases, scheduled downtime will take place on a Sunday morning between thehours of 0200L to 0600L (ET). If 24 hour advanced notification is not possible,Aether will be notified as soon as possible before the event. Unscheduled outageinformation will be passed to the on duty Aether technician as it becomesavailable.

 

Motient is responsible for operating and maintainingall RF/IF equipment and cabling from the 70 MHz Input/Output ports on the backof ti LES equipment racks out through the Ku and L-Band Satellite RF systems.Aether is responsible for operating and maintaining all equipment and cablingprior to this juncture.

 

**Escalation** -Normally all questions/problems will be referred to the on duty Satellite/RFOperations Technician. The on duty technician is responsible for providing thefirst level of operations and maintenance support and for; escalating problemswithin Motient. This includes providing information back to the Aether on dutytechnician. If resolution is not achieved within 15 minutes, the problem willbe escalated W the following order:

 
| On  Duty Satellite/RF Operations Technician |   | [*] |   | [*] |
|---------------------------------------------|--------|-----|--------|-----|
| Satellite/RF  Operations Lead Technician    |   | [*] |   | [*] |
| Satellite/RF  Operations Manager            |   | [*] |   | [*] |
| VP,  Operations                             |   | [*] |   | [*] |

 

All routine information about events that affectAether systems/traffic will normally flow from the on duty Motient Satellite/RFOperation Technician to the on duty Aether technician.

 

----

* Confidential information. Information has been redacted. 

.

----