SOON AS PRACTICABLE AFTER
LESSEE SELECTS THE FUNDAMENTAL COMMUNICATIONS TECHNOLOGY THAT IT INTENDS TO USE
FOR THE SYSTEM, LESSEE SHALL CONDUCT A TEST (THE "BETA TEST") OF SUCH
COMMUNICATIONS TECHNOLOGY IN RURAL COLORADO, IN A SPECIFIC GEOGRAPHIC AREA
JOINTLY APPROVED BY THE PARTIES (THE "BETA TEST MARKET"), TO VALIDATE THE
TECHNOLOGY IN ACCORDANCE WITH LESSOR'S TECHNICAL SPECIFICATIONS.
THE BETA TEST
WILL INCLUDE NO LESS THAN FIVE BASE STATION TRANSMITTERS, AND WILL BE DESIGNED
SO THAT UPON ITS SUCCESSFUL COMPLETION, THE SYSTEM WILL BE READY FOR OPERATIONAL
SERVICE FOR LIVE CUSTOMERS.
LESSOR SHALL PROVIDE LESSEE WITH ACCESS TO GSAT
SPECTRUM IN THE BETA TEST MARKET, SUBJECT TO THE REQUIREMENTS AND LIMITATIONS OF
THE COMMUNICATIONS LAWS AND LESSOR'S AND ITS AFFILIATES' OBLIGATIONS TO THEIR
EXISTING MOBILE SATELLITE SERVICE SUBSCRIBERS, AND LESSOR SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO OBTAIN ALL REQUIRED APPROVALS AND/OR WAIVERS FROM THE FCC
AND ANY OTHER NECESSARY GOVERNMENTAL BODIES IN ORDER FOR LESSEE TO COMMENCE THE
BETA TEST.
BASED ON FINDINGS FROM THE BETA TEST, THE PARTIES WILL WORK TOGETHER
TO DEVELOP THE PROCESSES AND PROCEDURES TO BE USED FOR BUILD OUT OF THE SYSTEM
WITHIN THE LESSEE MARKETS.
LESSEE WILL BE RESPONSIBLE FOR ALL COSTS INCURRED IN
CONNECTION WITH THE BETA TEST, EXCEPT THAT LESSOR WILL PAY FOR THE COSTS OF ITS
OWN EMPLOYEES AND CONTRACTORS (INCLUDING THEIR TRAVEL COSTS) THAT ARE NEEDED TO
FACILITATE THE BETA TEST.
LESSEE WILL USE ITS BEST EFFORTS TO CAUSE THE
TECHNOLOGY TESTED IN THE BETA TEST TO FUNCTION FOR ITS INTENDED PURPOSE AND
COMPLY WITH ALL OF LESSOR'S TECHNICAL SPECIFICATIONS AND ALL COMMUNICATIONS
LAWS.
(G)
BUFFER ZONES.
RECOGNIZING THE LIMITS OF
TECHNOLOGY, LESSOR ACKNOWLEDGES THAT LESSEE'S SYSTEM WITHIN THE LEASED
TERRITORIES MAY IN CERTAIN
19
CIRCUMSTANCES EXTEND SERVICE UP TO A [*]-MILE RADIUS BEYOND THE BOUNDARIES OF
THE LEASED TERRITORIES (THE "BUFFER ZONES").
LESSEE WILL NOT BE LIABLE FOR
PAYMENT FOR SUCH BUFFER ZONES UNDER THIS LEASE AGREEMENT EXCEPT AS SPECIFICALLY
SET FORTH HEREIN.
LESSEE WILL BE RESPONSIBLE FOR COORDINATING SERVICE,
NEGOTIATING INTEROPERABILITY AGREEMENTS AND AVOIDING INTERFERENCE WITH, ANY
PROVIDERS OPERATING A SYSTEM IN AREAS ADJACENT TO THE LEASED TERRITORIES, AND
UNDER THOSE CIRCUMSTANCES, WILL BE RESPONSIBLE FOR OPERATING WITHIN THE LEASED
TERRITORY GEOGRAPHIC BOUNDARIES.
NOTWITHSTANDING THE FOREGOING, HOWEVER, LESSEE
WILL USE ITS BEST EFFORTS TO IDENTIFY SUBSCRIBERS THAT RESIDE BEYOND THE
BOUNDARIES OF THE LEASED TERRITORIES BUT NONETHELESS USE THE SYSTEM, AND LESSEE
SHALL NOTIFY LESSOR OF THESE SUBSCRIBERS AND LESSEE SHALL BE RESPONSIBLE FOR
PAYMENT FOR SUCH SUBSCRIBERS UNDER THIS LEASE AGREEMENT (INCLUDING, FOR
AVOIDANCE OF DOUBT, BOTH FIXED LEASE PAYMENTS AND VARIABLE LEASE PAYMENTS) TO
THE EXTENT THAT THE NUMBER OF SUCH SUBSCRIBERS EXCEEDS EITHER (I) [*]%) OF THE
TOTAL NUMBER OF SUBSCRIBERS THEN SERVED BY LESSEE OR (II) WITH RESPECT TO ANY
"PLACE" (AS DEFINED IN SECTION 1(A) HEREOF) [*]%) OF THE NUMBER OF SUBSCRIBERS
IN ANY SUCH PLACE WITHIN THE LEASED TERRITORIES.
(H)
BUILD OUT MILESTONES.
LESSEE SHALL USE ITS
BEST EFFORTS TO CAUSE THE SYSTEM TO BE COMPLETED AND MADE OPERATIONAL FOR LIVE
CUSTOMERS