payments are
consistent with the fair market value of similar spectrum leases and of the
underlying spectrum.
Following Lessor's receipt of such notice, the Parties
will negotiate in good faith in an attempt to agree on the appropriate lease
payment adjustment consistent with the previous sentence.
If the Parties cannot
reach agreement within 30 days after Lessee's notice, the matter will be
resolved by a panel of three independent industry experts pursuant to the
process set forth in Section 7(c) hereof.
(iii) Lessee's rights set forth in this Section shall not limit any other rights
or remedies that it may have in the event of a breach of this Lease Agreement by
Lessor.
11.
EXPRESS COVENANTS AND AGREEMENTS RELATING TO FCC
MATTERS.
Notwithstanding anything contained herein to the contrary, the Parties
agree that the following provisions will apply:
(A)
LESSEE MUST COMPLY AT ALL TIMES IN ALL
MATERIAL RESPECTS WITH APPLICABLE RULES SET FORTH IN THE COMMUNICATIONS LAWS AND
ANY OTHER REQUIREMENT OF LAW. THIS LEASE AGREEMENT MAY BE REVOKED, CANCELLED OR
TERMINATED BY LESSOR IF LESSEE FAILS TO COMPLY IN ALL MATERIAL RESPECTS WITH THE
APPLICABLE REQUIREMENTS AND LESSEE DOES NOT CURE THIS FAILURE WITHIN 30 DAYS
AFTER LESSOR PROVIDES WRITTEN NOTICE OF SUCH FAILURE TO LESSEE;
(B)
IF ANY FCC LICENSE IS REVOKED, CANCELLED,
TERMINATED OR OTHERWISE CEASES TO BE IN EFFECT, LESSEE HAS NO CONTINUING
AUTHORITY OR RIGHT TO USE THE LEASED SPECTRUM COVERED BY THAT FCC LICENSE UNLESS
OTHERWISE AUTHORIZED BY THE FCC, AND LESSOR SHALL HAVE NO LIABILITY TO LESSEE
THEREFOR;
(C)
THIS LEASE AGREEMENT IS NOT AN ASSIGNMENT,
SALE OR TRANSFER OF ANY FCC LICENSE ITSELF;
21
(D)
THIS LEASE AGREEMENT WILL NOT BE ASSIGNED TO
ANY ENTITY THAT IS INELIGIBLE OR UNQUALIFIED TO ENTER INTO A SPECTRUM LEASING
ARRANGEMENT UNDER THE COMMUNICATIONS LAWS; AND
(E)
IN ADDITION TO THE OTHER REQUIREMENTS SET
FORTH HEREIN, LESSOR WILL NOT CONSENT TO AN ASSIGNMENT OF THIS LEASE AGREEMENT
UNLESS SUCH ASSIGNMENT COMPLIES WITH APPLICABLE COMMUNICATIONS LAWS.
12.
REPRESENTATIONS, WARRANTIES AND COVENANTS.
(A)
EACH OF THE PARTIES HERETO REPRESENTS,
WARRANTS AND COVENANTS, AS APPLICABLE, TO THE OTHER THAT:
(I)
IT IS DULY ORGANIZED AND IN GOOD STANDING
UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION;
(II)
IT HAS FULL POWER AND AUTHORITY TO CARRY OUT
ALL OF THE TRANSACTIONS CONTEMPLATED HEREBY;
(III)
IT SHALL COMPLY WITH ALL APPLICABLE LAWS,
INCLUDING THE COMMUNICATIONS LAWS AND LOCAL, STATE, AND FEDERAL RULES AND
REGULATIONS, GOVERNING THE BUSINESS, OWNERSHIP, MANAGEMENT AND OPERATIONS UNDER
THIS LEASE AGREEMENT; AND
(IV)
ALL REQUISITE RESOLUTIONS AND OTHER CORPORATE
AUTHORIZATIONS NECESSARY FOR ITS EXECUTION, DELIVERY, PERFORMANCE AND
SATISFACTION OF THIS LEASE AGREEMENT HAVE BEEN DULY ADOPTED AND COMPLIED WITH;
AND
(V)
THIS LEASE AGREEMENT IS A VALID AND BINDING
AGREEMENT, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH THE TERMS OF THIS LEASE
AGREEMENT.
(B)
LESSOR FURTHER REPRESENTS AND WARRANTS TO
LESSEE AS FOLLOWS, EXCEPT AS SET FORTH ON EXHIBIT H HERETO:
(I)
LESSOR IS THE EXCLUSIVE HOLDER OF EACH OF
THE FCC LICENSES, FREE AND