FACILITY.
4.4
REGULATORY APPROVALS:
If (a) Motient fails to obtain and maintain all required and material FCC or
other government approvals for the provision of the 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 is issued and becomes effective, PNC
may, in its sole discretion, terminate this Agreement in its entirety or to the
extent or in the geographic areas where PNC's use or provision of the Service is
affected by Motient's failure or such final order. If PNC terminates this
Agreement in its entirety, then
Motient shall
refund all PNC balances; if PNC terminates this Agreement in part, then Motient
shall refund a pro rata share of PNC balances corresponding to the terminated
portion of this Agreement.
ARTICLE FIVE
GENERAL
5.1
REPRESENTATIONS AND WARRANTIES:
Each party represents and warrants to the other that -
(A)
IT IS FULLY AUTHORIZED TO ENTER INTO AND PERFORM THIS AGREEMENT;
THIS AGREEMENT WHEN EXECUTED, WILL BE BINDING UPON IT; AND IT HAS MADE NO
MISREPRESENTATIONS TO THE OTHER PARTY IN CONNECTION WITH THE NEGOTIATION,
EXECUTION, OR PERFORMANCES OF THIS AGREEMENT; AND
(B)
THE EXECUTION AND PERFORMANCE OF THIS AGREEMENT DOES NOT AND WILL
NOT VIOLATE ANY OTHER CONTRACT, OBLIGATION, OR INSTRUMENT TO WHICH IT IS A
PARTY, OR WHICH IS BINDING UPON IT, INCLUDING TERMS RELATING TO COVENANTS NOT TO
COMPETE AND CONFIDENTIALITY OBLIGATIONS.
5.2
ASSIGNMENT:
(A)
MOTIENT: MOTIENT SHALL HAVE THE RIGHT TO ASSIGN THIS AGREEMENT,
INCLUDING ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT, WITHOUT CONSENT OF
PNC, TO SUCH PERSON OR ENTITY WHO SHALL FROM TIME TO TIME HOLD THE FCC LICENSE
PURSUANT TO WHICH THE SERVICE IS AUTHORIZED. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, MOTIENT MAY, WITHOUT PNC'S PRIOR CONSENT, ASSIGN ITS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT TO MOTIENT SATELLITE VENTURES LLC (OR ITS
SUCCESSOR) ("MSV"), PURSUANT TO THE TRANSFER BY MOTIENT OF ITS SATELLITE
COMMUNICATIONS BUSINESS, AS A WHOLE, TO MSV AS CONTEMPLATED BY THAT CERTAIN
ASSET SALE AGREEMENT, DATED JUNE 29, 2000, BY AND BETWEEN MOTIENT AND MSV; [*]
MOTIENT SHALL ALSO HAVE THE UNRESTRICTED RIGHT TO ASSIGN THIS AGREEMENT, OR ANY
OF ITS RIGHTS HEREUNDER, UPON WRITTEN NOTICE TO PNC, TO ANY LENDER AS COLLATERAL
SECURITY IN CONNECTION WITH ANY FINANCING ARRANGEMENT OF MOTIENT, PROVIDED THAT
MOTIENT SHALL REMAIN RESPONSIBLE FOR PERFORMANCE OF ITS RESPONSIBILITIES
HEREUNDER.
(B)
PNC:
PNC SHALL NOT ASSIGN ANY OF ITS RIGHTS AND OBLIGATIONS UNDER
THIS AGREEMENT TO ANY OTHER PERSON, FIRM, AGENCY, CORPORATION OR OTHER LEGAL
ENTITY, EXCEPT ITS AFFILIATES, WITHOUT THE PRIOR WRITTEN APPROVAL OF MOTIENT,
WHICH SHALL NOT UNREASONABLY BE WITHHELD, CONDITIONED, OR DELAYED.
5.3
SUCCESSORS AND ASSIGNS:
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their permitted assigns. This Agreement is entered into
solely for the benefit of such parties. Nothing herein contained will be deemed
to create any third