Exhibit 10.5 Agility Lease


    

      AGILITY
        LEASE FUND I, LLC

      MASTER
        LEASE AGREEMENT #5510

      THIS
        MASTER LEASE AGREEMENT (this "Lease")
        is made
        as of May 4, 2005 between Agility Lease Fund I, LLC ("Lessor")
        and
        NextPhase Wireless, Inc. . ("Lessee").

      Lessee
        desires to lease from Lessor the equipment and other property (the "Equipment")
        described in each Equipment Schedule executed pursuant to this Lease (each,
        a
"Schedule”)
        incorporating by reference the terms and conditions of this Lease (the term
        "Lease"
        shall
        also include any Riders to this Lease entered into with respect to such
        Schedule). Certain definitions and construction of certain of the terms used
        in
        this Lease are provided in Section 19 hereof.

      For
        good
        and valuable consideration, the receipt and sufficiency of which are hereby
        acknowledged, the parties to this Lease agree as follows:

      1.
        AGREEMENT TO LEASE; TERM. This
        Lease is effective as of the date specified above. By entering into a Schedule,
        Lessor leases the Equipment described therein to Lessee, and Lessee leases
        such
        Equipment from Lessor, in each case, subject to the terms and conditions
        in this
        Lease and such Schedule and all of the other documents and agreements executed
        in connection herewith (collectively, the "Lease
        Documents").
        Each
        Schedule, incorporating the terms and conditions of this Lease, will constitute
        a separate instrument of lease. The term of lease with respect to each
item
        of
        Equipment leased under a Schedule shall commence on the date of execution
        of
        such Schedule and continue for the term provided in that Schedule.

      2.
        RENT. Lessee
        shall pay Lessor (a) the rental installments ("Basic Rent") as and when
        specified in each Schedule, without demand, and (b) all of the other amounts
        payable in accordance with this Lease, such Schedule and/or any of the other
        Lease Documents ("Other Payments", and together with the Basic Rent,
        collectively, the "Rent"). Upon Lessee's execution thereof, the related Schedule
        shall constitute a non-cancelable net lease, and Lessee's obligation to pay
        Rent, and otherwise to perform its obligations under or with respect to such
        Schedule and all of the other Lease Documents, are
        and
        shall be absolute and unconditional and shall not be affected by any
        circumstances whatsoever, including any right of setoff, counterclaim,
        recoupment, deduction, defense or other right which Lessee may have against
        Lessor, the manufacturer or vendor of the Equipment (the "Suppliers"), or
        anyone
        else, for any reason whatsoever (each, an "Abatement"). Lessee agrees that
        all
        Rent shall be paid in accordance with Lessor's or Assignee's written direction.
        Time is of the essence. If Lessee fails to pay any rent or any other sum
        to be
        paid by Lessee to Lessor hereunder within five (5) days after the due date
        thereof, Lessee will pay Lessor (a) a late charge of ten percent (10%) of
        the
        amount, (b) Lessor’s collection costs paid third parties relevant to the
        collection thereof and (c) Lessor’s standard returned check charge, if
        relevant.

      3.
        REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF LESSEE. Lessee
        represents, warrants and agrees that, as of the effective date of this Lease
        and
        of each Schedule: (a) Lessee has the form of business organization indicated,
        and is and will remain duly organized and existing in good standing under
        the
        laws of the state specified under Lessee's signature and is duly qualified
        to do
        business wherever necessary to perform its obligations under the Lease
        Documents, including each jurisdiction in which the Equipment is or will
        be
        located. Lessee's legal name is as shown in the preamble of this Lease; and
        Lessee's Federal Employer Identification Number and organizational number
        are as
        set forth under Lessee's signature.

      Within
        the previous six (6) years, Lessee has not changed its name, done business
        under
        any other name, or merged or been the surviving entity of any merger, except
        as
        disclosed to Lessor in writing. (b) The Lease Documents (1) have been duly
        authorized by all necessary action consistent with Lessee's form of
        organization, (2) do not require the approval of, or giving notice to, any
        governmental authority, (3) do not contravene or constitute a default under
        any
        applicable law, Lessee's organizational documents, or any agreement, indenture,
        or other instrument to which Lessee is a party or by which
        it
        may be bound, and (4) constitute legal, valid and binding obligations of
        Lessee
        enforceable against Lessee, in accordance with the terms thereof. (c) There
        are
        no pending actions or proceedings to which Lessee is a party, and there are
        no
        other pending or threatened actions or proceedings of which Lessee has
        knowledge, before any court, arbitrator or administrative agency, which,
        either
        individually or in the aggregate, would

      have
        a
        Material Adverse Effect. As used herein, "Material
        Adverse Effect" shall
        mean (i) a materially adverse effect on the business, condition (financial
        or
        otherwise), operations, performance or properties of Lessee, or (ii) a material
        impairment of the ability of Lessee to perform its obligations under or remain
        in compliance with such Schedule or any of the other Lease Documents. Further,
        Lessee is not in default under any financial or other material agreement
        that,
        either individually, or in the aggregate, would have the same such effect.
        (d)
        All of the Equipment covered by such Schedule is located
        solely in the jurisdiction(s) specified in such Schedule. (e) Under the
        applicable laws of each such jurisdiction, such Equipment consists (and shall
        continue to consist) solely of personal property and not fixtures. Such
        Equipment is removable from and is not essential to the premises at which
        it is
        located. (f) The financial statements of Lessee (copies of which have been
        furnished to Lessor) have been prepared in accordance with generally accepted
        accounting principles consistently applied ("GAAP"),
        and
        fairly present Lessee's financial condition and the results of its operations
        as
        of the date
        of
        and for the period covered by such statements, and since the date of such
        statements there has been no material adverse change in such conditions or
        operations. (g) With respect to any Collateral, Lessee has good title to,
        rights
        in, and/or power to transfer all of the same. (h) The Supplier is not an
        affiliate of Lessee. (i) The Supply Contract (as such term is hereinafter
        defined) represents an arms' length transaction and the purchase price for
        the
        Equipment specified therein is the amount obtainable in an arms' length
        transaction between a willing and informed buyer and a willing and

      informed
        seller under no compulsion to sell.

      4.
        FURTHER ASSURANCES AND OTHER COVENANTS. Lessee
        agrees as follows: (a) Lessee will furnish Lessor with (1) Lessee's balance
        sheet, statement of income and statement of retained earnings, prepared in
        accordance with GAAP, certified by a recognized firm of certified public
        accountants, within one hundred twenty (120) days of the close of each fiscal
        year of Lessee, (2) Lessee's quarterly financial report certified by the
        chief
        financial officer of Lessee, within sixty (60) days of the close of each
        fiscal
        quarter of Lessee, and (3) all of Lessee's Forms 10-K and 10-Q, if any,
        filed

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      with
        the
        Securities and Exchange Commission ("SEC")
        as and
        when filed (by furnishing these SEC forms, or making them publicly available
        in
        electronic form, Lessee shall be deemed to have satisfied the requirements
        of
        clauses (1), (2) and (3). (b) Lessee shall obtain and deliver to Lessor and/or
        promptly execute or otherwise authenticate any documents, filings, waivers
        (including any landlord and mortgagee waivers), releases and other records,
        and
        will take such further action as Lessor may reasonably request in furtherance
        of
        Lessor's rights under any of the Lease Documents.  Lessee
        irrevocably authorizes Lessor to file UCC financing statements ("UCCs"),
        and
        other filings with respect to the Equipment or any Collateral.

      Without
        Lessor's prior written consent, Lessee agrees not to file any corrective
        or
        termination statements or partial releases with respect to any UCCs filed
        by
        Lessor pursuant to this Lease. (c) Lessee shall provide written notice to
        Lessor: (1) thirty (30) days prior to any change in Lessee's name or
        jurisdiction or form of organization; (2) promptly upon the occurrence of
        any
        Event of Default (as defined in Section 15) or event which, with the lapse
        of
        time or the giving of notice, or both, would become an Event of Default (a
        "Default");
        and
        (3) promptly upon Lessee becoming aware of any alleged violation of applicable
        law relating to the Equipment or this Lease.

      5.
        CONDITIONS PRECEDENT. Lessor's
        agreement to purchase and lease any Equipment under a Schedule, is conditioned
        upon Lessor's

      determination
        that all of the following have been satisfied: (a) Lessor having received
        the
        following, in form and substance reasonably satisfactory to Lessor: (1) evidence
        as to due compliance with the insurance provisions of Section 11; (2) if
        requested, lien searches in the jurisdiction of Lessee's organization, and
        wherever else Lessor deems appropriate; (3) UCCs, real property waivers and
        all
        other filings required by Lessor; (4) a certificate of an appropriate Officer
        of
        Lessee certifying: (A) resolutions duly authorizing the transactions
        contemplated in the applicable Lease Documents, and (B) the incumbency
        and signature of the officers of Lessee authorized to execute such documents;
        (5) if requested by Lessor, an opinion of counsel for Lessee as to each of
        the
        matters set forth in sub-parts (a) through (c) of Section 3; (6) the only
        manually executed original of the Schedule, and counterpart originals of
        all
        other Lease Documents; (7) all purchase documents pertaining to the Equipment
        (collectively, the "Supply
        Contract");
        (8) if
        requested by Lessor, good standing certificates from the jurisdiction of
        Lessee's organization and the location of the Equipment, and evidence of
        Lessee's organizational
        number; and (9) such other documents, agreements, instruments, certificates,
        opinions, and assurances, as Lessor reasonably may require. (b) All
        representations and warranties provided by Lessee in favor of Lessor in any
        of
        the Lease Documents shall be true and correct on the effective date of the
        related Schedule (Lessee's execution and delivery of the Schedule shall
        constitute Lessee's acknowledgment of the same). (c) There shall be no Default
        or Event of Default under the Schedule or any other Lease Documents. The
        Equipment shall have been delivered to and

      accepted
        by Lessee, as evidenced by the Schedule, and shall be in the condition and
        repair required hereby; and on the effective date of such Schedule Lessor
        shall
        have received good title to the Equipment described therein, free and clear
        of
        any claims, liens, attachments, rights of others and legal processes
        ("Liens").

      6.
        ACCEPTANCE UNDER LEASE. Lessor
        hereby appoints Lessee as Lessor's agent for the sole purpose of accepting
        delivery of the Equipment from the Supplier. Upon delivery, Lessee shall
        inspect
        and, if conforming to the condition required by the applicable Supply Contract,
        accept the Equipment and execute and deliver to Lessor a Schedule describing
        such Equipment. The Schedule will evidence Lessee's unconditional and
        irrevocable acceptance under the Schedule of the Equipment described therein.
        However, if Lessee fails to accept delivery of any item of the Equipment,
        or
        accepts such Equipment but fails to satisfy any or all of the other conditions
        set forth in Section 5, Lessor shall have no obligation to purchase or lease
        such Equipment. In such event, Lessor's rights shall include, among other
        things, the right to demand that Lessee (a) fully assume all obligations
        as
        purchaser of the Equipment, with the effect of causing Lessor to be released
        from any liability relating thereto, (b) immediately remit to Lessor an amount
        sufficient to reimburse it for all advance payments, costs, taxes or other
        charges paid or incurred with respect to the Equipment (including any of
        such
        amounts paid by Lessor to Supplier under the Supply Contract or as a
        reimbursement to Lessee), together with interest at the Late Charge Rate
        accruing from the date or dates such amounts were paid by Lessor until
        indefeasibly repaid by Lessee in full, and (c) take all other actions necessary
        to accomplish such assumption.

      7.
        USE AND MAINTENANCE. (a)
        Lessee shall (1) use the Equipment solely in the continental United States
        and
        in the conduct of it business, for the purpose for which the Equipment was
        designed, in a careful and proper manner, and shall not permanently discontinue
        use of the Equipment; (2) operate, maintain, service and repair the Equipment,
        and maintain all records and other materials relating thereto, (A) in accordance
        and consistent with (i) the Supplier's recommendations and all maintenance
        and
        operating manuals or service agreements, whenever furnished or entered into,
        including any
        subsequent amendments or replacements thereof, issued by the Supplier or
        service
        provider, (ii) the requirements of all applicable insurance policies, (iii)
        the
        Supply Contract, so as to preserve all of Lessee's and Lessor's rights
        thereunder, including all rights to any warranties, indemnities or other
        rights
        or remedies, (iv) all applicable laws, and (v) the prudent practice of other
        similar companies in the same business as Lessee, but in any event, to no
        lesser
        standard than that employed by Lessee for comparable equipment owned by or
        leased by it; and (B) without limiting the foregoing, so as
        to
        cause the Equipment to be in good repair and operating condition and in at
        least
        the same condition as when delivered to Lessee hereunder, except for ordinary
        wear and tear resulting despite Lessee's full compliance with the terms hereof;
        (3) provide written notice to Lessor not less than thirty (30) days after
        any
        change of the location of any Equipment (or the location of the principal
        garage
        of any Equipment, to the extent that such Equipment is mobile equipment)
        as
        specified in the Equipment schedule; and (4) not attach or incorporate the
        Equipment to or in any other property in such a

      manner
        that the Equipment may be deemed to have become an accession to or a part
        of
        such other property. (b) Within a reasonable time, Lessee will replace any
        parts
        of the Equipment which become worn out, lost, destroyed, or damaged beyond
        repair or otherwise unfit for use, by new or reconditioned replacement parts
        which are free and clear of all Liens and have a value, utility and remaining
        useful life at least equal to the parts replaced (assuming that they were
        in the
        condition required by this Lease). Any modification or addition to the Equipment
        that is required by this Lease shall
        be
        made by Lessee. Title to all such parts, modifications and additions to the
        Equipment immediately shall vest in Lessor, without any further action by
        Lessor
        or any other person, and they shall be deemed incorporated in the Equipment
        for
        all purposes of the related Schedule. Unless replaced in accordance with
        this
        Section, Lessee shall not remove any parts originally or from time to time
        attached to the Equipment, if such parts are

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      essential
        to the operation of the Equipment, are required by any other provision of
        this
        Lease or cannot be detached from the Equipment without materially interfering
        with the operation of the Equipment or adversely affecting the value, utility
        and remaining useful life which the Equipment would have had without the
        addition of such parts. Except as permitted in this Section, Lessee shall
        not
        make any material alterations to the Equipment. (c) Upon forty-eight (48)
        hours'
        notice, Lessee shall afford Lessor and/or its designated representatives
        access
        to the premises where the Equipment is located
        for the purpose of inspecting such Equipment and all applicable maintenance
        or
        other records relating thereto at any reasonable time during normal business
        hours; provided, however, if a Default or Event of Default shall have occurred
        and then be continuing, no notice of any inspection by Lessor shall be required.
        If any discrepancies are found as they pertain to the general condition of
        the
        Equipment, Lessor will communicate these discrepancies to Lessee in writing.
        Lessee shall then have thirty (30) days to rectify these discrepancies at
        its
        sole expense. Lessee shall pay all expenses
        of re-inspection by Lessor's appointed representative, if corrective measures
        were required.

      8.
        DISCLAIMER; QUIET ENJOYMENT. (a) THE EQUIPMENT IS LEASED HEREUNDER "AS IS,
        WHERE
        IS". LESSOR SHALL NOT BE DEEMED TO HAVE MADE, AND HEREBY DISCLAIMS, ANY
        REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE EQUIPMENT,
        INCLUDING ANY PART, OR ANY MATTER WHATSOEVER, INCLUDING, AS TO EACH ITEM
        OF
        EQUIPMENT, ITS DESIGN, CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR
        PURPOSE, TITLE, ABSENCE OF ANY PATENT, TRADEMARK OR COPYRIGHT
        INFRINGEMENT OR LATENT DEFECT (WHETHER OR NOT DISCOVERABLE BY LESSEE),
        COMPLIANCE OF SUCH ITEM WITH ANY APPLICABLE LAW, CONFORMITY OF SUCH ITEM
        TO THE
        PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE DOCUMENT OR TO THE DESCRIPTION
        SET
        FORTH IN THE RELATED SCHEDULE OR ANY OF THE OTHER LEASE DOCUMENTS, OR ANY
        INTERFERENCE OR INFRINGEMENT
        (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8(b)), OR ARISING FROM ANY COURSE
        OF
        DEALING OR USAGE OF TRADE, NOR SHALL LESSOR BE LIABLE, FOR ANY INDIRECT,
        INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR STRICT OR ABSOLUTE LIABILITY
        IN TORT; AND LESSEE HEREBY WAIVES ANY CLAIMS ARISING OUT OF ANY OF THE
        FOREGOING. Without
        limiting the foregoing, Lessor will not be responsible to Lessee or any other
        person with respect to, and Lessee agrees to bear sole responsibility for,
        any
        risk oother matter that is the subject of Lessor's disclaimer; and Lessor's
        agreement to enter into this Lease and any Schedule is in reliance upon the
        freedom from and complete negation of liability or responsibility for the
        matters so waived or disclaimed herein or covered by the indemnity in this
        Lease. So long

      as
        no
        Event of Default has occurred, Lessee may exercise Lessor's rights, if any,
        under any warranty with respect to the Equipment. Lessee's exercise of such
        rights shall be at its sole risk, shall not result in any prejudice to Lessor,
        and may be exercised only during the term of the related Schedule. Lessee
        shall
        not attempt to enforce any such warranty by legal proceeding without Lessor's
        prior written approval. (b) Lessor warrants that during the term of each
        ScheduIe, so long as no Event of Default has occurred, Lessee's possession
        and
        use of the Equipment leased thereunder shall not be interfered
        with by Lessor or anyone rightfully claiming an interest through Lessor.
        The
        preceding warranty is in lieu of all other warranties by Lessor, whether
        written, oral or implied, with respect to this Lease or the Equipment. Any
        actual or purported breach of this warranty shall not give rise to any
        Abatement, but Lessee may bring a direct cause of action against Lessor for
        any
        actual damages directly resulting from any such breach.

      9.
        FEES AND TAXES. Lessee
        agrees to: (a) (1) if permitted by law, file in Lessee's own name or on Lessor's
        behalf, directly with all appropriate taxing authorities all declarations,
        returns, inventories and other documentation with respect to any personal
        property taxes (or any other taxes in the nature of or imposed in lieu of
        property taxes) due or to become due with respect to the Equipment, and if
        not
        so permitted by law, to promptly notify Lessor and provide it with all
        information required in order for Lessor to timely file all such declarations,
        returns, inventories, or other documentation, and (2) pay on or before the
        date
        when due all such taxes assessed, billed or otherwise payable with respect
        to
        the Equipment directly to the appropriate taxing authorities; (b) (1) pay
        when
        due as requested by Lessor, and (2) defend and indemnify Lessor on a net
        after-tax basis against liability for all license and/or registration fees,
        assessments, and sales, use, property, excise, privilege, value added and
        other
        taxes or other charges or fees now or hereafter imposed by any governmental
        body
        or agency upon the Equipment or with respect to the manufacture, shipment,
        purchase, ownership, delivery,
        installation, leasing, operation, possession, use, return, or other disposition
        thereof or the Rent hereunder (other than taxes on or measured solely by
        the net
        income of Lessor); and (c) indemnify Lessor against any penalties, charges,
        interest or costs imposed with respect to any items referred to in clauses
        (a)
        and (b) above (the items referred to as clauses (a), (b), and (c) above being
        referred to herein as "Impositions").
        Any
        Impositions which are not paid when due and which are paid by Lessor shall,
        at
        Lessor's option, become immediately due from Lessee to Lessor.

      10.
        TITLE; GRANTING CLAUSE. (a)
        Lessee and Lessor intend that: (1) each Schedule, incorporating by reference
        the
        terms of this Lease, constitutes a true "lease" and a "finance lease" as
        such
        terms are defined in Article 2A and not a sale or retention of a security
        interest; and (2) Lessor is and shall remain the owner of each item of Equipment
        (unless sold by Lessor pursuant to any Lease Document), and Lessee shall
        not
        acquire any right, title or interest in or to such Equipment except the right
        to
        use it in accordance with the terms of the related Schedule. (b) In order
        to
        secure the prompt payment
        of the Rent and all of the other amounts from time to time outstanding with
        respect hereto and to each Schedule, and the performance and observance by
        Lessee of all of the provisions hereof and thereof and of all of the other
        Lease
        Documents, Lessee hereby collaterally assigns, grants, and conveys to Lessor,
        a
        security interest in and lien on all of Lessee's right, title and interest
        in
        and to all of the following (whether now existing or hereafter created, and
        including any other collateral described on any rider hereto; the "Collateral"):
        (1)
        (if contrary to the parties' intentions a court determines
        that such Schedule is not a true "lease" under the UCC) the Equipment described
        in such Schedule or otherwise covered thereby (including all inventory, fixtures
        or other property comprising the Equipment), together with all related software
        (embedded therein or otherwise) and general intangibles, all additions,
        attachments, accessories and accessions thereto whether or not furnished
        by the
        Supplier; (2) all subleases, chattel paper, accounts, security deposits,
        and
        general intangibles relating thereto, and any and all substitutions,
        replacements or exchanges for any such item of

      Equipment
        or other collateral, in each such case in which Lessee shall from time to
        time
        acquire an interest; and (3) any and all insurance and/or other

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      proceeds
        of the property and other collateral in and against which a security interest
        is
        granted hereunder. The collateral assignment, security interest and lien
        granted
        herein shall survive the termination, cancellation or expiration of each
        Schedule until such time as Lessee's obligations thereunder and under the
        other
        Lease Documents are fully and indefeasibly discharged. (c) If contrary to
        the
        parties' intentions a court determines that any Schedule is not
        a
        true "lease", the parties agree that in such event Lessee agrees that: (1)
        with
        respect to the Equipment, in addition to all of the other rights and remedies
        available to Lessor hereunder upon the occurrence of a Default, Lessor shall
        have all of the rights and remedies of a first priority secured party under
        the
        UCC; and (2) any obligation to pay Basic Rent or any Other Payment, to the
        extent constituting the payment of interest, shall be at an interest rate
        that
        is equal to the lesser of the maximum lawful rate permitted by applicable
        law or
        the effective interest rate used by Lessor in calculating such amounts.

      11.
        INSURANCE. Upon
        acceptance under a Schedule, until the Equipment is returned to Lessor in
        accordance with this Lease, Lessee shall maintain all-risk insurance coverage
        with respect to the Equipment insuring against, among other things: (a) any
        casualty to the Equipment (or any portion thereof), including loss or damage
        due
        to fire and the risks normally included in extended coverage, malicious mischief
        and vandalism, for not less than the full replacement value of the Equipment;
        and (b) any commercial liability arising in connection with the Equipment,
        including both bodily injury
        and property damage with a combined single limit per occurrence of not less
        than
        the amount specified in the Schedule; having a deductible reasonably
        satisfactory to Lessor. The required insurance policies (including endorsements)
        shall, (i) be endorsed to name Lessor as an additional insured (but without
        responsibility for premiums), (ii) provide that any amount payable under
        the
        required casualty coverage shall be paid directly to Lessor as sole loss
        payee,
        (iii) provide for thirty (30) days' written notice by such insurer of
        cancellation, material change, or non-renewal.

      12.
        LOSS AND DAMAGE. (a)
        At
        all times until the Equipment is returned to Lessor in accordance with this
        Lease, Lessee shall bear the risk of loss, theft, confiscation, taking,
        unavailability, damage or partial destruction of the Equipment and shall
        not be
        released from its obligations under any Schedule or other Lease Document
        in any
        such event. (b) Lessee shall provide prompt written notice to Lessor of any
        Total Loss or any material damage to the Equipment. Any such notice must
        be
        provided together with any damage reports provided to any governmental
        authority, the Insurer or Supplier, and any documents pertaining to the repair
        of such damage, including copies of work orders, and all invoices for related
        charges. (c) Without limiting any other provision hereof, Lessee shall repair
        all damage to any item of Equipment from any and all causes, other than a
        Total
        Loss, so as to cause it to be in the condition and repair required by this
        Lease. (d) A "Total
        Loss" shall
        be
        deemed to have occurred to an item of Equipment (the "Lost
        Equipment"),
        upon:
        (1) the actual or constructive total loss of any item of the Equipment, (2)
        the
        loss, disappearance, theft or destruction of any item
        of
        the Equipment, or damage to any item of the Equipment that is uneconomical
        to
        repair or renders it unfit for normal use, or (3) the condemnation,
        confiscation, requisition, seizure, forfeiture or other taking of title to
        or
        use of any item of the Equipment or the imposition of any Lien thereon by
        any
        governmental authority. (e) Lessor shall be under no duty to Lessee to pursue
        any claim against any person in connection with a Total Loss or other loss
        or
        damage. (f) If Lessor receives a payment under an insurance policy required
        under this Lease in connection with any Total Loss or other loss of or damage
        to
        an item of Equipment, and such payment is both unconditional and indefeasible,
        then provided Lessee shall have complied with the applicable provisions of
        this
        Section, Lessor shall either (1) credit such proceeds against any amounts
        owed
        by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs
        to be made pursuant to Section 12(c), remit such proceeds to Lessee up to
        an
        amount equal to the amount of the costs of repair.

      13.
        REDELIVERY. (a)
        Lessee shall provide written notice to Lessor not less than one hundred eighty
        (180) days and not more than two hundred forty (240) days prior to the
        expiration of the term of any Schedule (or of any renewal thereof, if
        applicable) of Lessee's intent to return the Equipment to Lessor upon the
        expiration of the term of such Schedule. If lessee fails to provide the
        foregoing notice in a timely manner, the term of the applicable schedule
        automatically shall be deemed to have been extended, which extension shall
        continue until one hundred eighty (180) days after the date on which
        lessee provides the required notice, during which extension period lessee
        shall
        continue to pay to lessor per diem rent at the last prevailing lease rate
        under
        the applicable schedule; provided, however that Lessor may elect to terminate
        such extension at any time upon ten (10) days written notice to Lessee. During
        such extension period, the terms and conditions of this Lease (including,
        without limitation, the provisions of this Section 13) shall continue to
        be
        applicable. (b) Upon the expiration or earlier cancellation or termination
        of
        any Schedule, Lessee shall return the Equipment to Lessor free
        and
        clear of all Liens whatsoever, to such place(s) within the continental United
        States as Lessor shall specify. Lessee
        shall provide, at its expense, transit insurance for the redelivery period
        in an
        amount equal to the replacement value of the Equipment and Lessor shall be
        named
        as the loss payee on all such policies of insurance. Lessee shall cause:
        (1) the
        Supplier's representative or other qualified person acceptable to Lessor
        (the
"Designated
        Person")
        to de-
        install the Equipment in accordance with the Supplier's specifications (as
        applicable) and pack the Equipment properly and in accordance with the
        Supplier's recommendations (as applicable); and (2) the Equipment to be
        transported in a manner
        consistent with the Supplier's recommendations and practices (as applicable).
        Upon return, the Equipment shall be: (i) in the same condition as when delivered
        to Lessee under the related Schedule, ordinary wear and tear excepted; (ii)
        mechanically and structurally sound, capable of performing the functions
        for
        which the Equipment was originally designed, in accordance with the Supplier's
        published and recommended specifications (as

      applicable);
        (iii) redelivered with all component parts in good operating condition (and
        all
        components must meet or exceed the Supplier's minimum recommended
        specifications, unless otherwise agreed by Lessor in writing); and (iv) cleaned
        and cosmetically acceptable, with all Lessee-installed markings removed and
        all
        rust, corrosion or other contamination having been removed or properly treated,
        and in such condition so that it may be immediately
        installed and placed in service by a third party. Upon delivery, the Equipment
        shall be in compliance with all applicable Federal, state and local laws,
        and
        health and safety guidelines. Lessee shall be responsible for the cost of
        all
        repairs, alterations, inspections, appraisals, storage charges, insurance
        costs,
        demonstration costs and other related costs necessary to cause the Equipment
        to
        be in full compliance with the terms of this Lease. (c) If requested by Lessor,
        Lessee shall also deliver all related records and other data to Lessor,
        including all records of maintenance, modifications, additions
        and major repairs, computerized maintenance history, and any maintenance
        and
        repair manuals (collectively, the "Records").
        All
        manuals or

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      other
        documents delivered to Lessor that are subject to periodic revision will
        be
        fully up-to-date and current to the latest revision standard of any particular
        manual or document. In the event any such Records are missing or incomplete,
        Lessor shall have the right to cause the same to be reconstructed at Lessee's
        expense. (d) In addition to Lessor's other rights and remedies hereunder,
        if the
        Equipment and the related Records are not returned in a timely fashion, or
        if
        repairs are necessary to place any item of Equipment in the condition required
        in this Section, Lessee shall (i) continue to
        pay to
        Lessor per diem rent at the last prevailing lease rate under the applicable
        Schedule with respect to such item of Equipment, for the period of delay
        in
        redelivery, and/or for the period of time reasonably necessary to accomplish
        such repairs, and (ii) pay to Lessor an amount equal to the aggregate cost
        of
        any such repairs. Lessor's acceptance of such rent on account of such delay
        and/or repair does not constitute an extension or renewal of the term of
        the
        related Schedule or a waiver of Lessor's right to prompt return of the Equipment
        in proper condition. Such amount shall be payable
        upon the earlier of Lessor's demand or the return of the Equipment in accordance
        with this Lease. (e) Without limiting any other terms or conditions of this
        Lease, the provisions of this Section are of the essence of each Schedule,
        and
        upon application to any court of equity having jurisdiction, Lessor shall
        be
        entitled to a decree against Lessee requiring Lessee's specific performance
        of
        its agreements and continued in this Section.

      this
        Section.

      14.
        INDEMNITY. Lessee
        shall indemnify, defend and keep harmless Lessor and any Assignee (as defined
        in
        Section 17), and their respective agents and employees (each, an "Indemnitee"),
        from
        and against any and all Claims (other than such as may directly and proximately
        result from the actual, but not imputed, gross negligence or willful misconduct
        of such Indemnitee), by paying, on a net after-tax basis, or otherwise
        discharging same, when and
        as
        such Claims shall become due. Lessee agrees that the Indemnity provided for
        in
        this Section includes the agreement by Lessee to indemnify each Indemnitee
        from
        the consequences of its own simple negligence, whether that negligence is
        the
        sole or concurring cause of the Claims, and to further indemnify each such
        Indemnitee with respect to Claims for which such Indemnitee is strictly liable.
        Lessor shall give Lessee prompt notice of any Claim
        hereby indemnified against and Lessee shall be entitled to control the defense
        of and/or to settle any Claim, in each case, so long as (a) no Default or
        Event
        of Default has occurred and is then continuing, (b) Lessee confirms, in writing,
        its unconditional and irrevocable commitment to indemnify each Indemnitee
        with
        respect to such Claim, (c) Lessee is financially capable of satisfying its
        obligations under this Section, and (d) Lessor approves the defense counsel
        selected by Lessee. The term "Claims"
        shall
        mean all claims, allegations, harms, judgments, settlements, suits, actions,
        debts,
        obligations, damages (whether incidental, consequential or direct), demands
        (for
        compensation, indemnification, reimbursement or otherwise), losses, penalties,
        fines, liabilities (including strict liability), charges that Lessor has
        incurred or for which it is responsible, in the nature of interest, Liens,
        and
        costs (including attorneys' fees and disbursements and any other legal or
        non-legal expenses of investigation or defense of any Claim, whether or not
        such
        Claim is ultimately defeated or enforcing the rights, remedies or indemnities
        provided for hereunder, or otherwise available at law or equity to

      Lessor),
        of whatever kind or nature, contingent or otherwise, matured or unmatured,
        foreseeable or unforeseeable, by or against any person, arising on account
        of
        (1) any Lease Document, including the performance, breach (including any
        Default
        or Event of Default) or enforcement of any of the terms thereof, or (2) the
        Equipment, or any part or other contents thereof, any substance at any time
        contained therein or emitted therefrom, including any hazardous substances,
        or
        the premises at which the Equipment may be located from time to time, or
        (3) the
        ordering, acquisition, delivery, installation or rejection
        of the Equipment, the possession of any property to which it may be attached
        from time to time, maintenance, use, condition, ownership or operation of
        any
        item of Equipment, and by whomsoever owned, used, possessed or operated,
        during
        the term of any Schedule with respect to that item of Equipment, the existence
        of latent and other defects (whether or not discoverable by Lessor or Lessee)
        any claim in tort for negligence or strict liability, and any claim for patent,
        trademark or copyright infringement, or the loss, damage, destruction, theft,
        removal, return, surrender, sale or other disposition of the Equipment, or
        any
        item thereof, including, Claims involving or alleging environmental damage,
        or
        any criminal or terrorist act, or for whatever other reason whatsoever. If
        any
        Claim Is made against Lessee or an Indemnitee, the party receiving notice
        of
        such Claim shall promptly notify the other, but the failure of the party
        receiving notice to so notify the other shall not relieve Lessee of any
        obligation hereunder.

      15.
        DEFAULT. A
        default
        shall be deemed to have occurred hereunder and under a Schedule upon the
        occurrence of any of the following (each, an

      "Event
        of Default"):
        (a)
        non-payment of Basic Rent on the applicable rent payment date; (b) non-payment
        of any Other Payment within five (5) days after it is due; (c) failure to
        maintain, use or operate the Equipment in compliance with applicable law;
        (d)
        failure to obtain, maintain and comply with all of the insurance coverages
        required under this Lease; (e) any transfer or encumbrance, or the existence
        of
        any Lien, that is prohibited by this Lease; (f) a payment or other default
        by
        Lessee under any loan, lease, guaranty or other financial obligation to Lessor
        or its affiliates which default entitled the other party to such obligation
        to
        exercise remedies; (g) a payment or other default by Lessee under any material
        loan, lease, guaranty or other material financial obligation to any third
        party
        which default has been declared; (h) an inaccuracy in any representation
        or
        breach of warranty by Lessee (including any false or misleading representation
        or warranty) in any financial statement or Lease Document, including any
        omission of any substantial contingent or unliquidated liability or Claim
        against Lessee; (i) the commencement of any bankruptcy, insolvency, receivership
        or similar proceeding by or
        against Lessee or any of its properties or business (unless, if involuntary,
        the
        proceeding is dismissed within sixty (60) days of the filing thereof) or
        the
        rejection of this Lease or any other Lease Document in any such proceeding;
        (j)
        the failure by Lessee generally to pay its debts as they become due or its
        admission in writing of its inability to pay the same; (k) Lessee shall (1)
        enter into any transaction of merger or consolidation, unless Lessee shall
        be
        the surviving entity (such actions being referred to as an "Event"),
        unless
        the surviving entity is organized and existing under the laws of the
        United

      States
        or
        any state, and prior to such Event: (A) such entity executes and delivers
        to
        Lessor (x) an agreement satisfactory to Lessor, in its sole discretion,
        containing such entity’s effective assumption, and its agreement to pay,
        perform, comply with and otherwise be liable for, in a due and punctual manner,
        all of Lessee's obligations having previously arisen, or then or thereafter
        arising, under any and all of the Lease Documents, and (y) any and all other
        documents, agreements, instruments, certificates, opinions and filings requested
        by Lessor; and (B) Lessor is satisfied as to the

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      creditworthiness
        of such person, and as to such person's conformance to the other standard
        criteria then used by Lessor when approving transactions similar to the
        transactions contemplated in this Lease; (2) cease to do business as a going
        concern, liquidate, or dissolve; or (3) sell, transfer, or otherwise dispose
        of
        all or substantially all of its assets or property; (l) if Lessee is privately
        held and effective control of Lessee's voting capital stock/membership
        interests/partnership interests, issued and outstanding from time to time,
        is
        not retained by the present holders (unless Lessee shall have
        provided thirty (30) days' prior written notice to Lessor of the proposed
        disposition and Lessor shall have consented thereto in writing); (m) if Lessee
        is a publicly held corporation and there is a material change in the ownership
        of Lessee's capital stock, unless Lessor is satisfied as to the creditworthiness
        of Lessee and as to Lessee's conformance to the other standard criteria then
        used by Lessor for such purpose immediately thereafter; (n) there occurs
        a
        default or anticipatory repudiation under any guaranty executed in connection
        with this Lease; (o) failure to satisfy the requirements of

      any
        financial covenants set forth herein, or in any rider to this Lease or any
        Schedule; or (p) breach by Lessee of any other covenant, condition or agreement
        (other than those in items (a)-(o)) under this Lease or any of the other
        Lease
        Documents that continues for thirty (30) days after Lessor's written notice
        to
        Lessee (but such notice and cure period will not be applicable unless such
        breach is curable by practical means within such notice period). 

      16.
        REMEDIES.
        (a) if
        an Event of Default occurs with respect to any Schedule, the Lessor thereunder
        may (in its sole discretion) exercise any one or more of the following remedies
        with respect to such Schedule and any or all other Schedules to which such
        Lessor is then a party: (1) proceed at law or in equity, to enforce specifically
        Lessee's performance or to recover damages; (2) declare each such Schedule
        in
        default, and cancel each such Schedule
        or otherwise terminate Lessee's right to use the Equipment and Lessee's other
        rights, but not its obligations, thereunder and Lessee shall immediately
        assemble, make available and, if Lessor requests, return the Equipment to
        Lessor
        in accordance with the terms of this Lease; (3) enter any premises where
        any
        item of Equipment is located and take immediate possession of and remove
        (or
        disable in place) such item (and/or any unattached parts)
        by
        self-help, summary proceedings or otherwise without liability; (4) use Lessee's
        premises for storage without liability; (5) sell, re-lease or otherwise dispose
        of any or all of the Equipment, whether or not in Lessor's possession, at
        public
        or private sale, with or without notice to Lessee, and apply or retain the
        net
        proceeds of such disposition, with Lessee remaining liable for any deficiency
        and with any excess being retained by Lessor; (6) enforce any or all of the
        preceding remedies with respect to any related Collateral, and apply any
        deposit
        or other cash collateral, or any proceeds of any such Collateral, at any
        time to
        reduce any amounts due to Lessor; (7) demand and recover from Lessee all
        Liquidated Damages and all Other Payments whenever the same shall be due;
        and
        (8) exercise any and all other remedies allowed by applicable law, including
        the
        UCC. As used herein, "Liquidated
        Damages" shall
        mean the liquidated damages (all of which, Lessee hereby acknowledges, are
        damages to be paid in lieu of future Basic Rent
        and
        are reasonable in light of the anticipated harm arising by reason of an Event
        of
        Default, and are not a penalty) described in the first sentence of parts
        (1) or
        (2) of Section 16(b), depending upon the recovery and disposition of the
        Equipment leased under the applicable Schedule. (b) If an Event of Default
        occurs with respect to any Schedule, (1) if Lessor recovers the Equipment
        and
        disposes of it by a lease or elects not to dispose of the Equipment after
        recovery, upon demand, Lessee shall pay to Lessor an amount equal to the
        sum of
        (A) any accrued and unpaid Rent as

      of
        the
        date Lessor recovers possession of the Equipment, plus (B) the present value
        as
        of such date of the total Basic Rent for the then remaining term of such
        Schedule, minus (C) either, as applicable, (i) the present value, as of the
        commencement date of any substantially similar re-lease of the Equipment,
        of the
        re-lease rent payable for that period, commencing on such date, which is
        comparable to the then remaining term of such Schedule or (ii)
        the
        present value, as of that certain date which may be determined by taking
        into
        account Lessor's having a reasonable opportunity to remarket the Equipment,
        of
        the "market rent" for such Equipment (as computed pursuant to Article 2A)
        in the
        continental United States on that date, computed for that period, commencing
        on
        such date, which is comparable to the then remaining term of such Schedule;
        provided, however, Lessee acknowledges that if Lessor
        is
        unable after reasonable effort to dispose of the Equipment at a reasonable
        price
        and pursuant to other reasonable terms, or the circumstances reasonably indicate
        that such an effort will be unavailing, the "market rent" in such event will
        be
        deemed to be $0.00, but in the event that Lessor does eventually re-lease
        or
        otherwise dispose of the Equipment, it will apply the net proceeds of such
        disposition, to the extent received in good and indefeasible
        funds, as a credit or reimbursement, as applicable, in a manner consistent
        with
        the applicable provisions of Article 2A. Any amounts discounted to present
        value, shall be discounted at the rate of three percent (3%) per annum,
        compounded annually.

      
        (2)
          If
          Lessee fails to return the Equipment in the manner and condition required
          by
          this Lease, or Lessor recovers and sells the Equipment, upon demand, Lessee
          shall pay to Lessor all other Rent due with respect to the related Schedule
          as
          of such determination date, and all Enforcement Costs (defined in Section
          16(c)), less a credit for any disposition proceeds, if applicable pursuant
          to
          the application provisions in the next sentence. If Lessor
          demands the Liquidated Damages under this part (2), and recovers and sells
          the
          Equipment, any proceeds received in good and indefeasible funds shall be
          applied
          by Lessor, with respect to the related Schedule: first, to pay all Enforcement
          Costs, to the extent not previously paid; second, to pay to Lessor an amount
          equal to any unpaid Rent due and payable, together with the liquidated
          damage
          amounts specified in this part (2), to the extent not previously paid;
          third, to
          pay to Lessor any interest accruing on the amounts covered by the preceding
          clauses, at the Late Charge Rate, from and after the date the same becomes
          due,
          through the date of payment; and fourth, (A) if the Lessor under such Schedule
          is also the Lessor under any other Schedules (whether by retaining the
          same, or
          as Assignee), to satisfy any remaining obligations under any or all such
          other
          Schedules, or (B) if such Lessor is not the Lessor under any other Schedule,
          or
          if Lessee's obligations to such Lessor under such other Schedules have
          been
          fully and

      

      indefeasibly
        satisfied, to reimburse Lessee for such amounts to the extent paid by Lessee
        as
        liquidated damages pursuant to this part (2). (c) A cancellation of any Schedule
        shall occur only upon written notice by Lessor to Lessee. Unless already
        specifically provided for in Section 16(b), if an Event of Default occurs
        with
        respect to any Schedule, Lessee shall also be liable for all of the following
        ("Enforcement Costs"): (1) all unpaid Rent due before, during or after exercise
        of any of the foregoing remedies, and (2) all reasonable legal fees (including
        consultation, drafting notices or

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      other
        documents, expert witness fees, sending notices or instituting, prosecuting
        or
        defending litigation or arbitration) and other enforcement costs and expenses
        incurred by reason of any Default or Event of Default or the exercise of
        Lessor's rights or remedies, including all expenses incurred in connection
        with
        the return or other recovery of any Equipment in accordance with the terms
        of
        this Lease or in placing such Equipment in the condition required hereby,
        or the
        sale, re-lease or other disposition (including but not limited to costs of
        transportation, possession, storage, insurance, taxes, lien removal,
        repair, refurbishing, advertising and brokers' fees), and all other pre-judgment
        and post-judgment enforcement related actions taken by Lessor or any actions
        taken by Lessor in any bankruptcy case involving Lessee, the Equipment, or
        any
        other person. Late Charges shall accrue with respect to any amounts payable
        under this Section for as long as such amounts remain outstanding, and shall
        be
        paid by Lessee upon demand. No right or remedy is exclusive and each may
        be used
        successively and cumulatively. Any failure to exercise the rights granted
        hereunder upon any Default or Event
        of
        Default shall not constitute a waiver of any such right. The execution of
        a
        Schedule shall not constitute a waiver by Lessor of any pre-existing Default
        or
        Event of Default. With respect to any disposition of any Equipment or Collateral
        pursuant to this Section, (i) Lessor shall have no obligation, subject to
        the
        requirements of commercial reasonableness, to clean-up or otherwise prepare
        the
        same for disposition, (ii) Lessor may comply with any applicable law in
        connection with any such disposition, and any actions taken in connection
        therewith shall not be deemed to have adversely affected the commercial
        reasonableness of any disposition thereof, (iii) Lessor may disclaim any
        title
        or other warranties in connection with any such disposition, and (iv) Lessee
        shall remain responsible for any deficiency remaining after Lessor's exercise
        of
        its remedies and application of any funds or credits against Lessee's
        obligations under any Schedule, and Lessor shall retain any excess after
        such
        application.

      17.
        ASSIGNMENT. (a)
        LESSEE SHALL NOT ASSIGN, DELEGATE, TRANSFER OR ENCUMBER ANY OF ITS RIGHTS
        OR
        OBLIGATIONS HEREUNDER OR UNDER ANY SCHEDULE, OR ITS LEASEHOLD INTEREST OR
        ANY
        COLLATERAL, SUBLET THE EQUIPMENT OR OTHERWISE PERMIT THE EQUIPMENT TO BE
        OPERATED OR USED BY, OR TO COME INTO OR REMAIN IN THE POSSESSION OF, ANYONE
        BUT
        LESSEE.

      Without
        limiting the foregoing, (1) Lessee may not attempt to dispose of any of the
        Equipment, and (2) Lessee shall (A) maintain the Equipment free from all
        Liens,
        other than Permitted Liens, (B) notify Lessor immediately upon receipt of
        notice
        of any Lien affecting the Equipment, and (C) defend Lessor's title to the
        Equipment. A "Permitted Lien" shall mean any Lien for Impositions, Liens
        of
        mechanics, materialmen, or suppliers and similar Liens arising by operation
        of
        law, provided that any such Lien is incurred by Lessee in the ordinary course
        of
        business, for sums that are not yet delinquent or are being contested in
        good
        faith and with due diligence, by negotiations or by appropriate proceedings
        which suspend the collection thereof and, in Lessor's sole discretion, (i)
        do
        not involve any substantial danger of the sale, forfeiture or loss of the
        Equipment or any interest therein, and (ii) for the payment of which adequate
        assurances or security have been provided to Lessor. No disposition referred
        to
        in this Section shall relieve Lessee of its obligations, and Lessee shall
        remain
        primarily liable under each Schedule and all of the other Lease Documents.
        (b)
        Lessor may at any time with or without
        notice to Lessee grant a security interest in, sell, assign, delegate or
        otherwise transfer (an "Assignment") all or any part of its interest in the
        Equipment, this Lease or any Schedule and any related Lease Documents or
        any
        Rent thereunder" or the right to enter into any Schedule, and Lessee shall
        perform all of its obligations thereunder, to the extent so transferred,
        for the
        benefit of the beneficiary of such Assignment (such beneficiary, including
        any
        successors and assigns, an "Assignee").
        Lessee
        agrees not to assert against any Assignee any Abatement (without limiting
        the

      provisions
        of Section 2) or Claim that Lessee may have against Lessor, and Assignee
        shall
        not be bound by, or otherwise required to perform any of Lessor's obligations,
        unless expressly assumed by such Assignee. Lessor shall be relieved of any
        such
        assumed obligations. If so directed in writing, Lessee shall pay all Rent
        and
        all other sums that become due under the assigned Schedule and other Lease
        Documents directly to the Assignee or any other party designated in writing
        by
        Lessor or such Assignee. Lessee acknowledges that Lessor's right to enter
        into
        an Assignment is essential to Lessor
        and, accordingly, waives any restrictions under applicable law with respect
        to
        an Assignment and any related remedies. Upon the request of Lessor or any
        Assignee, Lessee also agrees (i) to promptly execute and deliver to Lessor
        or to
        such Assignee an acknowledgment of the Assignment in form and substance
        satisfactory to the requesting party, an insurance certificate and such other
        documents and assurances reasonably requested by Lessor or Assignee, and
        (ii) to
        comply with all other reasonable requirements of any such Assignee in connection
        with any such Assignment. Upon such Assignment
        and except as may otherwise be provided herein, all references in this Lease
        to
        "Lessor" shall include such Assignee. (c) Subject always to the foregoing,
        this
        Lease and each Schedule shall inure to the benefit of, and are binding upon,
        Lessee's and Lessor's respective successors and assigns.

      18.
        MISCELLANEOUS. (a)
        This
        Lease, each Schedule, any Riders hereto or thereto and any commitment letter
        between the parties, constitute the entire agreement between the parties
        with
        respect to the subject matter hereof and thereof and shall not be amended
        or
        modified in any manner except by a document in writing executed by both parties.
        (b) Any provision of this Lease that is prohibited or unenforceable in any
        jurisdiction shall, as to such jurisdiction, be ineffective to the extent
        of
        such prohibition or unenforceability without invalidating the remaining
        provisions hereof, and any such prohibition
        or unenforceability in any jurisdiction shall not invalidate or render
        unenforceable such provision in any other jurisdiction. (c) The representations,
        warranties and agreements of Lessee herein shall be deemed to be continuing
        and
        to survive the execution and delivery of this Lease, each Schedule and any
        other
        Lease Documents. With respect to each Schedule, the obligations of Lessee
        under
        Sections 8, 9, 10, 12, 13 and 14 hereof, together with any of Lessee's
        obligations under the other provisions of this Lease (as incorporated therein)
        which have accrued but not been fully satisfied,
        performed or complied with prior to the expiration or earlier cancellation
        or
        termination of such Schedule, shall survive the expiration or earlier
        cancellation or termination thereof. (d) All of Lessee's obligations hereunder
        and under any Schedule shall be performed at Lessee's sole expense.

      Lessee
        shall reimburse Lessor promptly upon demand for all expenses incurred by
        Lessor
        in connection with (1) any action taken by Lessor at Lessee's request, or
        in
        connection with any option, (2) the filing or recording of real property
        waivers
        and UCCs, (3) any Enforcement Costs not recovered pursuant to Section 16,
        (4)
        all inspections, and (5) all lien search reports (and copies of filings)
        requested by Lessor. If Lessee fails to perform any of its obligations with
        respect to a Schedule, Lessor shall have the right, but shall not be obligated,
        to effect such performance, and Lessee shall reimburse

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Lessor,
        upon demand, for all expenses incurred by Lessor in connection with such
        performance. Lessor's effecting such compliance shall not be a waiver of
        Lessee's default. All amounts payable under this Section, if not paid when
        due,
        shall be paid to Lessor together with interest thereon at the Late Charge
        Rate.
        (e) Lessee irrevocably appoints Lessor as Lessee's attorney-in-fact (which
        power
        shall be deemed coupled with an interest) to execute, endorse and deliver
        any
        documents and checks or drafts relating to or received in payment for any
        loss
        or damage under the policies of insurance
        required by this Lease, but only to the extent that the same relates to the
        Equipment. (f) LESSOR AND LESSEE HEREBY WAIVE TRIAL BY JURY IN ANY ACTION
        OR
        PROCEEDING TO WHICH LESSEE AND/OR LESSOR MAY BE PARTIES ARISING OUT OF OR
        IN ANY
        WAY PERTAINING TO THIS LEASE. (g) All notices (excluding billings and
        communications in the ordinary course of business) hereunder shall be in
        writing, personally delivered, delivered by overnight courier service, sent
        by
        facsimile transmission (with confirmation of receipt), or sent by certified
        mail, return receipt
        requested, addressed to the other party at Its respective address stated
        below
        the signature of such party or at such other address as such party shall
        from
        time to time designate in writing to the other party; and shall be effective
        from the date of receipt. (h) This Lease shall not be effective unless and
        until
        accepted by execution by an officer of Lessor at the address, in the State
        of
        Arizona (the "State"),
        as set
        forth below the signature of Lessor.

      THIS
        LEASE AND ALL OF THE OTHER LEASE DOCUMENTS, AND THE RIGHTS AND OBLIGATIONS
        OF
        THE PARTIES HEREUNDER AND THEREUNDER, SHALL IN ALL RESPECTS BE GOVERNED BY,
        AND
        CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE (WITHOUT REGARD
        TO
        THE CONFLICT OF LAWS PRINCIPLES OF THE STATE), INCLUDING ALL MATTERS OF
        CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE
        EQUIPMENT. The parties agree that any action or proceeding arising out
        of or
        relating to this Lease may be commenced in any state or Federal court in
        the
        State, and agree that a summons and complaint commencing an action or proceeding
        in any such court shall be properly served and shall confer personal
        jurisdiction if served personally or by certified mail to it at the mailing
        address below Lessee's signature, or as it may provide in writing from time
        to
        time, or as otherwise provided under the laws of the State. (i) This Lease
        and
        all of the other Lease Documents may be executed In counterparts. The transfer
        or possession of the "Original" of this Lease shall be irrelevant to the
        full or
        collateral assignment of, or grant of security interest in, any Schedule;
        provided, however, no security interest in any Schedule may be created through
        the transfer, possession or control, as applicable, of any counterpart of
        such
        Schedule other than the original thereof, which shall be identified as the
        document or record (as applicable) marked "Original" and all other counterparts
        shall be marked "Duplicate". (j) If Lessor is required by the terms hereof
        to
        pay to or for the benefit of Lessee any amount received as a refund of an
        Imposition or as insurance proceeds, Lessor shall not be required to pay
        such
        amount, if any Default has occurred and not been cured or any Event of Default
        shall have occurred and not been waived by Lessor. In addition, if Lessor
        is
        required by the terms hereof to cooperate with Lessee in connection with
        certain
        matters, such cooperation shall not be required if a Default or Event of
        Default
        has then occurred and is continuing. (k) To the extent Lessor is required
        to
        give its consent or approval with respect to any matter, the reasonableness
        of
        Lessor's withholding of such consent shall be determined based on the then
        existing circumstances;
        provided, that Lessor's withholding of its consent shall be deemed reasonable
        for all purposes if (i) the taking of the action that is the subject of such
        request, might result (in Lessor's discretion), in (A) an impairment of Lessor's
        rights, title or interests hereunder or under any Schedule or other Lease
        Document, or to the Equipment, or (B) expose Lessor to any Claims or
        Impositions, or (ii) Lessee fails to provide promptly to Lessor any filings,
        certificates, opinions or indemnities required by Lessor as a condition to
        such
        consent.

      19.
        DEFINITIONS AND RULES OF CONSTRUCTION. (a)
        The
        following terms when used in this Lease or in any of the Schedules have the
        following meanings: (1) "affiliate": with respect to any given person, shall
        mean (i) each person that directly or indirectly owns or controls, whether
        beneficially or as a trustee, guardian or other fiduciary, five (5) percent
        or
        more of the voting stock, membership interest or similar equity interest
        having
        ordinary voting power in the election of directors or managers of such person,
        (ii) each person that controls, is controlled by, or is under common control
        with, such person, or (iii) each of such person's officers, directors, members,
        joint venturers and partners. For the purposes of this definition, "control"
        of
        a person means the possession, directly or indirectly, of the power to direct
        or
        cause the direction of its management or policies, whether through the ownership
        of voting securities, by contract or otherwise; (2) "applicable law" or "law":
        any law, rule, regulation, ordinance, order, code, common law, interpretation,
        judgment,
        directive, decree, treaty, injunction, writ, determination, award, permit
        or
        similar norm or decision of any governmental authority; (3) "AS IS, WHERE
        IS":
        AS IS, WHERE IS, without warranty, express or implied, with respect to any
        matter whatsoever; (4) "business day": any day, other than a Saturday, Sunday,
        or legal holiday for commercial banks under the laws of the state of the
        Lessor's notice address; (5) "governmental authority": any federal, state,
        county, municipal, regional or other governmental authority, agency, board,
        body, instrumentality or court, in each case, whether domestic or foreign;
        (6)
        "person": any individual, corporation, limited liability entity, partnership,
        joint venture, or other legal entity or a governmental authority, whether
        employed, hired, affiliated, owned, contracted with, or otherwise related
        or
        unrelated to Lessee or Lessor; and (7) "UCC" or "Uniform Commercial Code":
        the
        Uniform Commercial Code as in effect in the State or in any other applicable
        jurisdiction; and any reference to an article (including Article 2A) or section
        thereof shall mean the corresponding article or section (however termed)
        of any
        such applicable version of the Uniform Commercial
        Code. (b) The following terms when used herein or in any of the Schedules
        shall
        be construed as follows: (1) "herein," "hereof," "hereunder," etc.: in, of,
        under, etc. this Lease or such other Lease Document in which such term appears
        (and not merely in, of, under, etc. the section

      or
        provision where the reference occurs); (2) "including": means including without
        limitation unless such term is followed by the words "and limited to", or
        similar words; and (3) "or": at least one, but not necessarily only one,
        of the
        alternatives enumerated. Any defined term used in the singular preceded by
        "any"
        indicates any number of the members of the relevant class. Any Lease Document
        or
        other agreement or instrument referred to herein means such agreement or
        instrument as supplemented and amended from time to time. Any reference to
        Lessor or Lessee shall include their permitted successors and assigns. Any
        reference to an applicable law shall also mean such law as amended, superseded
        or replaced from time to time.

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      IN
        WITNESS WHEREOF, the parties hereto have caused this Master Lease Agreement
        to
        be duly executed, under seal, as of the day and year first above set
        forth.

      


      AGILITY
        LEASE FUND I, LLC

      Lessor

      By:
        ________________________________________

      Name:
        Hal
        Hayden

      Title:
        Vice President

      101
        E.
        Gurley St., Suite 202

      Prescott,
        Arizona 86301

      Phone
        (928) 541-0771

      


      NextPhase
        Wireless, Inc.

      Lessee

      By:
        _______________________________________

      Name:
        Robert Ford

      Title:
        CEO

      Address:
        300 S. Harbor Blvd., Suite 500

      Anaheim,
        CA 92805

      Phone:
        (714) 765-0010