CONFIDENTIAL
January 8, 2001
Motient Services Inc.
10802 Parkridge Blvd.
Reston, Virginia 20191-5416
Attn: Gary M. Parsons
RE: PROJECT UNION - RESTORAL CAPACITY AGREEMENT
Dear Gary:
This Restoral Capacity Letter Agreement (the "RC Agreement") is entered into by
and between Motient Services Inc. ("MSI"), a Delaware corporation and a wholly
owned subsidiary of Motient Corporation and TMI Communications and Company,
Limited Partnership ("TMI"), a Quebec limited partnership and indirectly
wholly-owned by BCE Inc. (each a "Party" and collectively, the "Parties") in
connection with the Investment Agreement by and among Motient Corporation,
Mobile Satellite Ventures LLC, the Existing Investors, the New Investors and
TMI, dated even date herewith (the "Investment Agreement").
1. The Transaction. TMI and MSI shall provide satellite restoral capacity to
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each other in accordance with the terms of this RC Agreement.
2. Definitions. In this RC Agreement:
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"Affected Party" means the Party hereto (TMI or MSI) whose satellite
suffers a Satellite Degradation;
"Degraded Satellite" means the satellite hereunder (TMI Satellite or MSI
Satellite) that suffers a TMI Satellite Degradation or MSI Satellite
Degradation, as the case may be;
"Effective Date" means the date the Investment Agreement is entered into;
"Joint Operating Agreement" means the joint operating agreement dated as of
April 25, 1990 between AMSC Subsidiary Corporation and Telesat Mobile Inc.
(as assigned to TMI), as amended;
"MSI Satellite" means the satellite owned by MSI as of the date hereof;
"MSI Satellite Degradation" means any diminution or degradation in the
condition of the MSI Satellite below that specified in the monthly health
report dated October 12, 2000.
"Restoral Capacity" means use of the Restoral Satellite in the form of
Radio Frequency (RF) power;
"Restoral Satellite" means the satellite that provides Restoral Capacity
with respect to a Satellite Degradation.
"Satellite Capacity Agreement" means the memorandum of agreement for
satellite capacity dated as of February 17, 1992 between AMSC Subsidiary
Corporation and Telesat Mobile Inc. (as assigned to TMI) as amended;
"Satellite Degradation" means either a TMI Satellite Degradation or a MSI
Satellite Degradation.
"Supporting Party" means the Party hereto (TMI or MSI) whose satellite is
to provide Restoral Capacity to the Affected Party.
"TMI Satellite" means the satellite owned by TMI as of the date hereof; and
"TMI Satellite Degradation" means any diminution or degradation in the
condition of the TMI Satellite below that specified in the document
entitled "MSAT Health Report to August 1, 2000", a copy of which was
provided to MSI through Motient Corporation under cover letter dated August
10, 2000.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Investment Agreement.
3. Restoral Capacity.
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(a) In consideration of the mutual commitments made hereunder, and for
other good and valuable consideration (the receipt and sufficiency of
which is hereby acknowledged), each of MSI and TMI agree to provide
each other Restoral Capacity pursuant to the terms of this RC
Agreement, and at no charge to the other Party for Restoral Capacity
during the term of this Agreement. Any third party, out-of-pocket costs
to provide the Restoral Capacity will be the responsibility of the
Affected Party.
(b) In the event of any Satellite Degradation, the Affected Party will
attempt to reconfigure the Degraded Satellite to the extent reasonably
possible to mitigate the impact of such Satellite Degradation and to
minimize the amount of Restoral Capacity it may need to obtain from the
Supporting Party.
(c) If the Affected Party is unable to fully mitigate such Satellite
Degradation as set out in paragraph 3(b) above, then to the extent
reasonably possible, the Supporting Party shall, immediately upon its
receipt of a written request for Restoral Capacity from the Affected
Party, commence to provide Restoral Capacity to the Affected Party,
provided that for the purpose of this paragraph 3(c), the extent to
which the other Party has Restoral Capacity available to provide to the
Affected Party will be determined solely with reference to the amount
of capacity the Supporting Party is actually providing and/or
contractually committed to provide and neither Party shall be required
to provide Restoral Capacity to the Affected Party if to do so would
require the Supporting Party to pre-empt any of its existing customer
commitments.
(d) In addition to the foregoing limits, in no event will a Party be
required to provide Restoral Capacity that would result in the Affected
Party having access to more capacity than it had as of the date of the
respective health report referred to above in paragraph 2.
(e) The Parties will cooperate and use their reasonable best efforts to
implement the use of Restoral Capacity for the Affected Party as soon
as possible.
4. Termination of Restoral Obligations.
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(i) This RC Agreement, and the Parties' obligation to provide Restoral
Capacity hereunder, shall be in effect from the Effective Date, and
shall terminate on the sooner of (a) Closing or (b) when the Investment
Agreement is terminated, provided, however, that the provisions hereto
shall continue in full force and effect for up to the earlier of: (i)
an additional six months after such termination and (ii) June 29, 2002
in the event that either: (x) the Investment Agreement is terminated
solely due to a ruling by the FCC denying approvals for the
transactions, or (y) Motient Corporation (without TMI's approval)
terminates the Investment Agreement, pursuant to Section 11.2 of the
Investment Agreement.
(ii)The Satellite Capacity Agreement is hereby suspended and the foregoing
terms and conditions will govern the provision of restoral capacity by
each Party to the other, until such time as the obligations to provide
Restoral Capacity, as set forth above, ceases. If this RC Agreement is
terminated pursuant to this paragraph 4, and at such time the Satellite
Capacity Agreement has not been terminated in accordance with its own
terms, then effective as of the date of termination of this RC
Agreement: (x) the Satellite Capacity Agreement shall cease to be
suspended without any further action by the Parties and shall be and
become operative and enforceable by the Parties thereto; and (y) upon
TMI's request, MSI will negotiate in good faith to amend the Satellite
Capacity Agreement, or enter into a new agreement, to sell capacity to
TMI on commercial terms.
5. Binding Agreement. This RC Agreement is intended by the Parties as a binding
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obligation of each of the Parties and their respective successors and assigns.
To the extent that any provision of the Joint Operating Agreement is
inconsistent with any provision(s) of this RC Agreement, the provisions of this
RC Agreement shall override the inconsistent provisions of the Joint Operating
Agreement.
6. Assignment. No Party hereto may assign this RC Agreement or any of its rights
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or obligations hereunder to any other person without the express prior written
approval of the other Party.
7. Governing Law. This RC Agreement is being executed and delivered in, and
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shall be governed by and construed in accordance with the laws of, the State of
New York, without regard to its principles of conflicts of law that would give
effect to the application of the law of another jurisdiction. Each of the
Parties hereto hereby irrevocably and unconditionally consents to submit to the
non-exclusive jurisdiction of the courts of the State of New York and of the
United States of America, in each case having jurisdiction over the County of
New York, for any litigation arising out of or relating to this RC Agreement and
the transactions contemplated hereby and thereby (and agrees not to commence any
litigation relating thereto except in such courts), and further agrees that
service of any process, summons, notice or document by U.S. registered mail to
its respective address set forth in this RC Agreement shall be effective service
of process for any litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any litigation arising out of this RC Agreement or the
transactions contemplated hereby in the courts of the State of New York or the
United States of America, in each case having jurisdiction over the County of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such litigation brought in any
such court has been brought in an inconvenient forum.
8. Severability. Whenever possible, each provision of this RC Agreement shall be
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interpreted in such manner as to be effective and valid, but if any provision of
this RC Agreement is held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not render invalid or unenforceable any
other provision of this RC Agreement.
9. Counterparts. This RC Agreement may be executed simultaneously in one (1) or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement binding on the Parties
hereto.
Please indicate your agreement to the terms set forth herein by executing this
RC Agreement below.
TMI Communications Inc., for and on behalf of
TMI Communications and Company, Limited Partnership
By: /s/Larry Boisvert
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Name: Larry Boisvert
Title: President and CEO
By: /s/Ted Ignacy
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Name: Ted Ignacy
Title: V.P. Finance
Accepted and agreed to as of this 8th day of January 2001:
Motient Services Inc.
By: /s/Gary M. Parsons
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Name: Gary M. Parsons
Title: Chairman