exv10w1



 





Exhibit 10.1




MASTER LEASE AGREEMENT




dated as of 10/26/04 (“Agreement”)




     THIS AGREEMENT is between General Electric Capital Corporation (together
with its successors and assigns, if any, “Lessor”) and Alexa Springs, Inc.
(“Lessee”). Lessor has an office at 16479 Dallas Parkway #300, Addison, TX
75001-2512. Lessee is a corporation organized and existing under the laws of
the state of Texas. Lessee’s mailing address and chief place of business is
652 Southwestern Blvd., Coppell, Texas 75019. This Agreement contains the
general terms that apply to the leasing of Equipment from Lessor to Lessee.
Additional terms that apply to the Equipment (term, rent, options, etc.) shall
be contained on a schedule (“Schedule”).



1. LEASING:




     (a) Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor, the equipment and the property (“Equipment”) described in any Schedule
signed by both parties.



     (b) Lessor shall purchase Equipment from the manufacturer or supplier
(“Supplier”) and lease it to Lessee if on or before the Last Delivery Date
Lessor receives (i) a Schedule for the Equipment, (ii) evidence of insurance
which complies with the requirements of Section 9, and (iii) such other
documents as Lessor may reasonably request. Each of the documents required
above must be in form and substance satisfactory to Lessor. Lessor hereby
appoints Lessee its agent for inspection and acceptance of the Equipment from
the Supplier. Once the Schedule is signed, the Lessee may not cancel the
Schedule.



2. TERM, RENT AND PAYMENT:




     (a) The rent payable for the Equipment and Lessee’s right to use the
Equipment shall begin on the earlier of (i) the date when the Lessee signs the
Schedule and accepts the Equipment or (ii) when Lessee has accepted the
Equipment under a Certificate of Acceptance (“Lease Commencement Date”). The
term of this Agreement shall be the period specified in the applicable
Schedule. The word “term” shall include all basic and any renewal terms.



     (b) Lessee shall pay rent to Lessor at its address stated above, except as
otherwise directed by Lessor. Rent payments shall be in the amount set forth
in, and due as stated in the applicable Schedule. If any Advance Rent (as
stated in the Schedule) is payable, it shall be due when the Lessee signs the
Schedule. Advance Rent shall be applied to the first rent payment and the
balance, if any, to the final rent payment(s) under such Schedule. In no event
shall any Advance Rent or any other rent payments be refunded to Lessee. If
rent is not paid within ten (10) days of its due date, Lessee agrees to pay a
late charge of two cents ($.02) per dollar on, and in addition to, the amount
of such rent but not exceeding the lawful maximum, if any.



3. RENT ADJUSTMENT:




     (a) If, solely as a result of Congressional enactment of any law
(including, without limitation, any modification of, or amendment or addition
to, the Internal Revenue Code of 1986, as amended, (“Code”)), the maximum
effective corporate income tax rate (exclusive of any minimum tax rate) for
calendar-year taxpayers (“Effective Rate”) is higher than thirty-five percent
(35%) for any year during the lease term, then Lessor shall have the right to
increase such rent payments by requiring payment of a single additional sum,
unless such sum exceeds $5,000, and then Lessee shall pay $5,000 per rent
payment until paid in full. The additional sum shall be equal to the product
of (i) the Effective Rate (expressed as a decimal) for such year less .35 (or,
in the event that any adjustment has been made hereunder for any previous year,
the Effective Rate (expressed as a decimal) used in calculating the next
previous adjustment) times (ii) the adjusted Termination Value (defined below),
divided by (iii) the difference between the new Effective Rate (expressed as a
decimal) and one (1). The adjusted Termination Value shall be the Termination
Value (calculated as of the first rent due in the year for which the adjustment
is being made) minus the Tax Benefits that would be allowable under Section 168
of the Code (as of the first day of the year for which such adjustment is being
made and all future years of the lease term). The Termination Values and Tax
Benefits are defined on the Schedule. Lessee shall pay to Lessor the full
amount of the additional rent payment on the later of (i) receipt of notice or
(ii) the first day of the year for which such adjustment is being made.



     (b) Lessee’s obligations under this Section 3 shall survive any expiration
or termination of this Agreement.



4. TAXES:




     (a) If permitted by law, Lessee shall report and pay promptly all taxes,
fees and assessments due, imposed, assessed or levied against any Equipment (or
purchase, ownership, delivery, leasing, possession, use or operation thereof),
this Agreement (or any rents or receipts hereunder), any Schedule, Lessor or
Lessee by any governmental entity or taxing authority during or related to the
term of this Agreement, including, without limitation, all license and
registration fees, and all sales, use, personal property, excise, gross
receipts, franchise, stamp or other taxes, imposts, duties and charges,
together with any penalties, fines or interest thereon (collectively “Taxes”).
Lessee shall have no liability for Taxes imposed by the United States of
America or any state or political subdivision thereof which are on or measured
by the net income of Lessor except as provided in Sections 3 and 14(c). Lessee
shall promptly reimburse Lessor (on an after tax basis) for any Taxes charged
to or assessed against Lessor. Lessee shall show Lessor as the owner of the
Equipment on all tax reports or returns, and send Lessor a copy of each report
or return and evidence of Lessee’s payment of Taxes upon request.



 









 





     (b) Lessee’s obligations, and Lessor’s rights and privileges, contained in
this Section 4 shall survive the expiration or other termination of this
Agreement.



5. REPORTS:




     (a) If any tax or other lien shall attach to any Equipment, Lessee will
notify Lessor in writing, within ten (10) days after Lessee becomes aware of
the tax or lien. The notice shall include the full particulars of the tax or
lien and the location of such Equipment on the date of the notice.



     (b) If Lessee ceases to file its financials with the SEC, as part of the
consolidated reporting of a public company or as a public company, Lessee will
deliver to Lessor, Lessee’s complete financial statements, certified by a
recognized firm of certified public accountants within ninety (90) days of the
close of each fiscal year of Lessee. Lessee will deliver to Lessor copies of
Lessee’s quarterly financial report certified by the chief financial officer of
Lessee, within ninety (90) days of the close of each fiscal quarter of Lessee.
Lessee will deliver to Lessor all Forms 10-K and 10-Q, if any, filed with the
Securities and Exchange Commission within thirty (30) days after the date on
which they are filed.



     (c) Lessor may inspect any Equipment during normal business hours after
giving Lessee reasonable prior notice.



     (d) Lessee will keep the Equipment at the Equipment Location (specified in
the applicable Schedule) and will give Lessor prior written notice of any
relocation of Equipment. If Lessor asks, Lessee will promptly notify Lessor
in writing of the location of any Equipment.



     (e) If any Equipment is lost or damaged (where the estimated repair costs
would exceed the greater of ten percent (10%) of the original Equipment cost or
ten thousand and 00/100 dollars ($10,000)), or is otherwise involved in an
accident causing personal injury or property damage, Lessee will promptly and
fully report the event to Lessor in writing.



     (f) Lessee will furnish a certificate of an authorized officer of Lessee
stating that he has reviewed the activities of Lessee and that, to the best of
his knowledge, there exists no default or event which with notice or lapse of
time (or both) would become such a default within thirty (30) days after any
request by Lessor.



     (g) Lessee will promptly notify Lessor of any change in Lessee’s state of
incorporation or organization.



6. DELIVERY, USE AND OPERATION:




     (a) All Equipment shall be shipped directly from the Supplier to Lessee.



     (b) Lessee agrees that the Equipment will be used by Lessee solely in the
conduct of its business and in a manner complying with all applicable laws,
regulations and insurance policies and Lessee shall not discontinue use of the
Equipment.



     (c) Lessee will not move any equipment from the location specified on the
Schedule, without the prior written consent of Lessor.



     (d) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor.



     (e) Lessor shall not disturb Lessee’s quiet enjoyment of the Equipment
during the term of the Agreement unless a default has occurred and is
continuing under this Agreement.



7. MAINTENANCE:




     (a) Lessee will, at its sole expense, maintain each unit of Equipment in
good operating order and repair, normal wear and tear excepted. The Lessee
shall also maintain the Equipment in accordance with manufacturer’s
recommendations. Lessee shall make all alterations or modifications required
to comply with any applicable law, rule or regulation during the term of this
Agreement. If Lessor requests, Lessee shall affix plates, tags or other
identifying labels showing ownership thereof by Lessor. The tags or labels
shall be placed in a prominent position on each unit of Equipment.



     (b) Lessee will not attach or install anything on any Equipment that will
impair the originally intended function or use of such Equipment without the
prior written consent of Lessor. All additions, parts, supplies, accessories,
and equipment (“Additions”) furnished or attached to any Equipment that are
not readily removable shall become the property of Lessor. All Additions shall
be made only in compliance with applicable law. Lessee will not attach or
install any Equipment to or in any other personal or real property without the
prior written consent of Lessor.



8. STIPULATED LOSS VALUE: If for any reason any unit of Equipment becomes worn
out, lost, stolen, destroyed, irreparably damaged or unusable (“Casualty
Occurrences”) Lessee shall promptly and fully notify Lessor in writing. Lessee
shall pay Lessor the sum of (i) the Stipulated Loss Value (see Schedule) of the
affected unit determined as of the rent payment date prior to the Casualty
Occurrence; and (ii) all rent and other amounts which are then due under this
Agreement on the Payment Date (defined below) for the affected unit. The
Payment Date shall be the next rent payment date after the Casualty Occurrence.
Upon Payment of all sums due hereunder, the term of this lease as to such unit
shall terminate.




 









 








9. INSURANCE:



     (a) Lessee shall bear the entire risk of any loss, theft, damage to, or
destruction of, any unit of Equipment from any cause whatsoever from the time
the Equipment is shipped to Lessee.



     (b) Lessee agrees, at its own expense, to keep all Equipment insured for
such amounts and against such hazards as Lessor may reasonably require. All
such policies shall be with companies, and on terms, reasonably satisfactory to
Lessor. The insurance shall include coverage for damage to or loss of the
Equipment, liability for personal injuries, death or property damage. Lessor
shall be named as additional insured with a loss payable clause in favor of
Lessor, as its interest may appear, irrespective of any breach of warranty or
other act or omission of Lessee. The insurance shall provide for liability
coverage in an amount equal to at least ONE MILLION U.S. DOLLARS
($1,000,000.00) total liability per occurrence, unless otherwise stated in any
Schedule. The casualty/property damage coverage shall be in an amount equal to
the higher of the Stipulated Loss Value or the full replacement cost of the
Equipment. No insurance shall be subject to any co-insurance clause. The
insurance policies shall provide that the insurance may not be altered or
canceled by the insurer until after thirty (30) days written notice to Lessor.
Lessee agrees to deliver to Lessor evidence of insurance reasonably
satisfactory to Lessor.



     (c) Lessee hereby appoints Lessor as Lessee’s attorney-in-fact to make
proof of loss and claim for insurance, and to make adjustments with insurers
and to receive payment of and execute or endorse all documents, checks or
drafts in connection with insurance payments. Lessor shall not act as Lessee’s
attorney-in-fact unless Lessee is in default. Lessee shall pay any reasonable
expenses of Lessor in adjusting or collecting insurance. Lessee will not make
adjustments with insurers except with respect to claims for damage to any unit
of Equipment where the repair costs are less than the lesser of ten percent
(10%) of the original Equipment cost or ten thousand and 00/100 dollars
($10,000). Lessor shall apply proceeds of insurance, first to (i) repair or
replace Equipment or any portion thereof, then to (ii) satisfy any obligation
of Lessee to Lessor under this Agreement.



10. RETURN OF EQUIPMENT:




     (a) At the expiration or termination of this Agreement or any Schedule,
Lessee shall perform any testing and repairs required to place the units of
Equipment in the same condition and appearance as when received by Lessee
(reasonable wear and tear excepted) and in good working order for the original
intended purpose of the Equipment. If required the units of Equipment shall be
deinstalled, disassembled and crated by an authorized manufacturer’s
representative or such other service person as is reasonably satisfactory to
Lessor. Lessee shall remove installed markings that are not necessary for the
operation, maintenance or repair of the Equipment. All Equipment will be
cleaned, cosmetically acceptable, and in such condition as to be immediately
installed into use in a similar environment for which the Equipment was
originally intended to be used. All waste material and fluid must be removed
from the Equipment and disposed of in accordance with then current waste
disposal laws. Lessee shall return the units of Equipment to a location within
the continental United States as Lessor shall direct by written notice 30 days
prior to termination date. Lessee shall obtain and pay for a policy of transit
insurance for the redelivery period in an amount equal to the replacement value
of the Equipment. The transit insurance must name Lessor as the loss payee.
The Lessee shall pay for all costs to comply with this section (a).



     (b) Until Lessee has fully complied with the requirements of Section 10(a)
above, Lessee’s rent payment obligation and all other obligations under this
Agreement shall continue from month to month notwithstanding any expiration or
termination of the lease term. Lessor may terminate the Lessee’s right to use
the Equipment upon ten (10) days notice to Lessee.



     (c) Lessee shall provide to Lessor a detailed inventory of all components
of the Equipment including model and serial numbers with notice of termination
of the Lease. Lessee shall provide an up-to-date copy of all other
documentation pertaining to the Equipment, all service manuals, blue prints,
process flow diagrams, operating manuals, inventory and maintenance records
with the equipment when it is returned to Lessor.



     (d) Lessee shall make the Equipment and its records available for on-site
operational inspections by potential purchasers at least one hundred twenty
(120) days prior to and continuing up to lease termination. Lessor shall
provide Lessee with reasonable written notice prior to any inspection. Lessee
shall provide reasonable and available personnel, power and other requirements
necessary to demonstrate electrical, hydraulic and mechanical systems for each
item of Equipment.



11. DEFAULT AND REMEDIES:




     (a) Lessor may declare this Agreement in default if: (i) Lessee breaches
its obligation to pay rent or any other sum when due and fails to cure the
breach within ten (10) days; (ii) Lessee breaches any of its insurance
obligations under Section 9; (iii) Lessee breaches any of its other obligations
and fails to cure that breach within thirty (30) days after written notice from
Lessor; (iv) any representation or warranty made by Lessee in connection with
this Agreement shall be false or misleading in any material respect; (v) Lessee
or any guarantor or other obligor for the Lessee’s obligations hereunder
(“Guarantor”) becomes insolvent or ceases to do business as a going concern;
(vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a
natural person, any death or incompetency of Lessee or such Guarantor; (viii) a
petition is filed by or against Lessee or any Guarantor under any bankruptcy or
insolvency laws and in the event of an involuntary petition, the petition is
not dismissed within forty-five (45) days of the filing date; (ix) any
Guarantor revokes or attempts to revoke its guaranty or fails to observe or
perform any covenant, condition or agreement to be performed under any guaranty
or other related document to which it is a party; or (x) Lessee defaults under
any other material obligation for (A) borrowed money, (B) the deferred purchase
price of property, or (C) payments due under lease agreements. The default
declaration shall apply to all Schedules unless specifically excepted by
Lessor.



     (b) After a default, at the request of Lessor, Lessee shall comply with
the provisions of Section 10(a). Lessee hereby authorizes Lessor to peacefully
enter any premises where any Equipment may be and take possession of the
Equipment. Lessee shall immediately pay to Lessor without further demand as
liquidated damages for loss of a bargain and not as a penalty, the Stipulated
Loss Value of the Equipment (calculated as of the rent payment date prior to
the declaration of default), and all rents and other sums then due under this
Agreement and all Schedules. Lessor may terminate this Agreement as to any or
all of the Equipment. A termination shall occur only upon written notice by
Lessor to Lessee and only as to the units of Equipment specified in any such
notice. Lessor may, but shall not be required to, sell



 









 





Equipment at private or public sale, in bulk or in parcels, with or without
notice, and without having the Equipment present at the place of sale. Lessor
may also, but shall not be required to, lease, otherwise dispose of or keep
idle all or part of the Equipment. Lessor may use Lessee’s premises for a
period of sixty (60) days for any or all of the purposes stated above without
liability for rent, costs, damages or otherwise. The proceeds of sale, lease
or other disposition, if any, shall be applied in the following order of
priorities: (i) to pay all of Lessor’s costs, charges and expenses incurred in
taking, removing, holding, repairing and selling, leasing or otherwise
disposing of Equipment; then, (ii) to the extent not previously paid by Lessee,
to pay Lessor all sums due from Lessee under this Agreement; then (iii) to
reimburse to Lessee any sums previously paid by Lessee as liquidated damages;
and (iv) any surplus shall be retained by Lessor. Lessee shall immediately pay
any deficiency in (i) and (ii) above .



     (c) The foregoing remedies are cumulative, and any or all thereof may be
exercised instead of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of the manner and place of any
advertising of the sale. Lessee shall pay Lessor’s actual attorney’s fees
incurred in connection with the enforcement, assertion, defense or preservation
of Lessor’s rights and remedies under this Agreement, or if prohibited by law,
such lesser sum as may be permitted. Waiver of any default shall not be a
waiver of any other or subsequent default.



12. ASSIGNMENT: LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, ENCUMBER OR SUBLET
ANY EQUIPMENT OR THE INTEREST OF LESSEE IN THE EQUIPMENT WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR. Lessor may, without the consent of Lessee, assign
this Agreement, any Schedule or the right to enter into a Schedule. Lessee
agrees that if Lessee receives written notice of an assignment from Lessor,
Lessee will pay all rent and all other amounts payable under any assigned
Schedule to such assignee or as instructed by Lessor. Lessee also agrees to
confirm in writing receipt of the notice of assignment as may be reasonably
requested by assignee. Lessee hereby waives and agrees not to assert against
any such assignee any defense, set-off, recoupment claim or counterclaim which
Lessee has or may at any time have against Lessor for any reason whatsoever.



13. NET LEASE: Lessee is unconditionally obligated to pay all rent and other
amounts due for the entire lease term no matter what happens, even if the
Equipment is damaged or destroyed, if it is defective or if Lessee no longer
can use it. Lessee is not entitled to reduce or set-off against rent or other
amounts due to Lessor or to anyone to whom Lessor assigns this Agreement or any
Schedule whether Lessee’s claim arises out of this Agreement, any Schedule, any
statement by Lessor, Lessor’s liability or any manufacturer’s liability,
strict liability, negligence or otherwise.



14. INDEMNIFICATION:




     (a) Lessee hereby agrees to indemnify Lessor, its agents, employees,
successors and assigns (on an after tax basis) from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including
legal expenses, of whatsoever kind and nature arising out of or relating to the
Equipment or this Agreement, except to the extent the losses, damages,
penalties, injuries, claims, actions, suits or expenses result from Lessor’s
gross negligence or willful misconduct (“Claims”). This indemnity shall
include, but is not limited to, Lessor’s strict liability in tort and Claims,
arising out of (i) the selection, manufacture, purchase, acceptance or
rejection of Equipment, the ownership of Equipment during the term of this
Agreement, and the delivery, lease, possession, maintenance, uses, condition,
return or operation of Equipment (including, without limitation, latent and
other defects, whether or not discoverable by Lessor or Lessee and any claim
for patent, trademark or copyright infringement or environmental damage) or
(ii) the condition of Equipment sold or disposed of after use by Lessee, any
sublessee or employees of Lessee. Lessee shall, upon request, defend any
actions based on, or arising out of, any of the foregoing.



     (b) Lessee hereby represents, warrants and covenants that (i) on the Lease
Commencement Date for any unit of Equipment, such unit will qualify for all of
the items of deduction and credit specified in Section C of the applicable
Schedule (“Tax Benefits”) in the hands of Lessor, and (ii) at no time during
the term of this Agreement will Lessee take or omit to take, nor will it permit
any sublessee or assignee to take or omit to take, any action (whether or not
such act or omission is otherwise permitted by Lessor or by this Agreement),
which will result in the disqualification of any Equipment for, or recapture
of, all or any portion of such Tax Benefits.



     (c) If as a result of a breach of any representation, warranty or covenant
of the Lessee contained in this Agreement or any Schedule (i) tax counsel of
Lessor shall determine that Lessor is not entitled to claim on its Federal
income tax return all or any portion of the Tax Benefits with respect to any
Equipment, or (ii) any Tax Benefit claimed on the Federal income tax return of
Lessor is disallowed or adjusted by the Internal Revenue Service, or (iii) any
Tax Benefit is recalculated or recaptured (any determination, disallowance,
adjustment, recalculation or recapture being a “Loss”), then Lessee shall pay
to Lessor, as an indemnity and as additional rent, an amount that shall, in the
reasonable opinion of Lessor, cause Lessor’s after-tax economic yields and cash
flows to equal the Net Economic Return that would have been realized by Lessor
if such Loss had not occurred. Such amount shall be payable upon demand,
unless the amount exceeds $5,000 and then Lessee shall pay $5,000 a month with
the rental payments until paid in full, accompanied by a statement describing
in reasonable detail such Loss and the computation of such amount. The
economic yields and cash flows shall be computed on the same assumptions,
including tax rates as were used by Lessor in originally evaluating the
transaction (“Net Economic Return”). If an adjustment has been made under
Section 3 then the Effective Rate used in the next preceding adjustment shall
be substituted.



     (d) All references to Lessor in this Section 14 include Lessor and the
consolidated taxpayer group of which Lessor is a member. All of Lessor’s
rights, privileges and indemnities contained in this Section 14 shall survive
the expiration or other termination of this Agreement. The rights, privileges
and indemnities contained herein are expressly made for the benefit of, and
shall be enforceable by Lessor, its successors and assigns.



15. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED UNDER THIS AGREEMENT OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION,




 









 








SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. All such risks,
as between Lessor and Lessee, are to be borne by Lessee. Without limiting the
foregoing, Lessor shall have no responsibility or liability to Lessee or any
other person with respect to any of the following; (i) any liability, loss or
damage caused or alleged to be caused directly or indirectly by any Equipment,
any inadequacy thereof, any deficiency or defect (latent or otherwise) of the
Equipment, or any other circumstance in connection with the Equipment; (ii) the
use, operation or performance of any Equipment or any risks relating to it;
(iii) any interruption of service, loss of business or anticipated profits or
consequential damages; or (iv) the delivery, operation, servicing, maintenance,
repair, improvement or replacement of any Equipment. If, and so long as, no
default exists under this Agreement, Lessee shall be, and hereby is, authorized
during the term of this Agreement to assert and enforce whatever claims and
rights Lessor may have against any Supplier of the Equipment at Lessee’s sole
cost and expense, in the name of and for the account of Lessor and/or Lessee,
as their interests may appear.



16. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee makes each of the
following representations and warranties to Lessor on the date hereof and on
the date of execution of each Schedule.



     (a) Lessee has adequate power and capacity to enter into, and perform
under, this Agreement and all related documents (together, the “Documents”).
Lessee is duly qualified to do business wherever necessary to carry on its
present business and operations, including the jurisdiction(s) where the
Equipment is or is to be located.



     (b) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies may be limited under applicable bankruptcy and insolvency laws.



     (c) No approval, consent or withholding of objections is required from any
governmental authority or entity with respect to the entry into or performance
by Lessee of the Documents except such as have already been obtained.



     (d) The entry into and performance by Lessee of the Documents will not:
(i) violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee’s organizational documents; or (ii) result in any breach
of, constitute a default under or result in the creation of any lien, charge,
security interest or other encumbrance upon any Equipment pursuant to any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
instrument (other than this Agreement) to which Lessee is a party.



     (e) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or
affecting Lessee, which if decided against Lessee will have a material adverse
effect on the ability of Lessee to fulfill its obligations under this
Agreement.



     (f) The Equipment accepted under any Certificate of Acceptance is and will
remain tangible personal property.



     (g) Each financial statement delivered to Lessor has been prepared in
accordance with generally accepted accounting principles consistently applied.
Since the date of the most recent financial statement, there has been no
material adverse change.



     (h) Lessee’s exact legal name is as set forth in the first sentence of
this Agreement and Lessee is and will be at all times validly existing and in
good standing under the laws of the State of its incorporation or organization
(specified in the first sentence of this Agreement).



     (i) The Equipment will at all times be used for commercial or business
purposes.



     (j) Lessee is and will remain in full compliance with all laws and
regulations applicable to it including, without limitation, (i) ensuring that
no person who owns a controlling interest in or otherwise controls Lessee is or
shall be (Y) listed on the Specially Designated Nationals and Blocked Person
List maintained by the Office of Foreign Assets Control (“OFAC”), Department of
the Treasury, and/or any other similar lists maintained by OFAC pursuant to any
authorizing statute, Executive Order or regulation or (Z) a person designated
under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23,
2001), any related enabling legislation or any other similar Executive Orders,
and (ii) compliance with all applicable Bank Secrecy Act (“BSA”) laws,
regulations and government guidance on BSA compliance and on the prevention and
detection of money laundering violations.



17. EARLY TERMINATION:




     (a) On or after the First Termination Date (specified in the applicable
Schedule), Lessee may, so long as no default exists hereunder, terminate this
Agreement as to all (but not less than all) of the Equipment on such Schedule
as of a rent payment date (“Termination Date”). Lessee must give Lessor at
least ninety (90) days prior written notice of the termination.



     (b) Lessee may, and Lessor may, solicit cash bids for the Equipment on an
AS IS, WHERE IS BASIS without recourse to or warranty from Lessor, express or
implied (“AS IS BASIS”). Prior to the Termination Date, Lessee shall (i)
certify to Lessor any bids received by Lessee and (ii) pay to Lessor (A) the
Termination Value (calculated as of the rent due on the Termination Date) for
the Equipment, and (B) all rent and other sums due and unpaid as of the
Termination Date.



     (c) If all amounts due hereunder have been paid on the Termination Date
and Lessee does not elect to purchase the equipment, Lessor shall (i) sell the
Equipment on an AS IS BASIS for cash to the highest bidder and (ii) refund the
proceeds of such sale (net of any related expenses) to Lessee up to the amount
of the Termination Value. If such sale is not consummated, no termination
shall occur and Lessor shall refund the Termination Value (less any expenses
incurred by Lessor) to Lessee.



 









 





     (d) Notwithstanding the foregoing, Lessor may elect by written notice, at
any time prior to the Termination Date, not to sell the Equipment. In that
event, on the Termination Date Lessee shall (i) return the Equipment (in
accordance with Section 10) and (ii) pay to Lessor all amounts required under
Section 17(b) less the amount of the highest bid certified by Lessee to Lessor.



18. PURCHASE OPTION:




     (a) Lessee may at lease expiration purchase all (but not less than all) of
the Equipment in any Schedule on an AS IS BASIS for cash equal to its then Fair
Market Value (plus all applicable sales taxes). Lessee must notify Lessor of
its intent to purchase the Equipment in writing at least one hundred eighty
(180) days in advance. If Lessee is in default or if the Lease has already
been terminated Lessee may not purchase the Equipment.



     (b) “Fair Market Value” shall mean the price that a willing buyer (who is
neither a lessee in possession nor a used equipment dealer) would pay for the
Equipment in an arm’s-length transaction to a willing seller under no
compulsion to sell. In determining the Fair Market Value the Equipment shall
be assumed to be in the condition in which it is required to be maintained and
returned under this Agreement. If the Equipment is installed it shall be
valued on an installed basis. The costs of removal from current location shall
not be a deduction from the value of the Equipment. If Lessor and Lessee are
unable to agree on the Fair Market Value at least one hundred thirty-five (135)
days before lease expiration, Lessor shall appoint an independent appraiser
(reasonably acceptable to Lessee) to determine Fair Market Value. The
independent appraiser’s determination shall be final, binding and conclusive.
Lessee shall bear all costs associated with any such appraisal.



     (c) Lessee shall be deemed to have waived this option unless it provides
Lessor with written notice of its irrevocable election to exercise the same
within fifteen (15) days after written notice of Fair Market Value is provided
to Lessee.



19. MISCELLANEOUS:




     (a) LESSEE AND LESSOR UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT,
ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN LESSEE AND LESSOR RELATING
TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR
THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LESSEE AND LESSOR. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



     (b) The Equipment shall remain Lessor’s property unless Lessee purchases
the Equipment from Lessor and until such time Lessee shall only have the right
to use the Equipment as a lessee. Any cancellation or termination by Lessor of
this Agreement, any Schedule, supplement or amendment hereto, or the lease of
any Equipment hereunder shall not release Lessee from any then outstanding
obligations to Lessor hereunder. All Equipment shall at all times remain
personal property of Lessor even though it may be attached to real property.
The Equipment shall not become part of any other property by reason of any
installation in, or attachment to, other real or personal property.



     (c) Time is of the essence of this Agreement. Lessor’s failure at any
time to require strict performance by Lessee of any of the provisions hereof
shall not waive or diminish Lessor’s right at any other time to demand strict
compliance with this Agreement. Lessee agrees, upon Lessor’s request, to
execute, or otherwise authenticate, any document, record or instrument
necessary or expedient for filing, recording or perfecting the interest of
Lessor or to carry out the intent of this Agreement. In addition, Lessee
hereby authorizes Lessor to file a financing statement and amendments thereto
describing the Equipment described in any and all Schedules now and hereafter
executed pursuant hereto and adding any other collateral described therein and
containing any other information required by the applicable Uniform Commercial
Code. Lessee irrevocably grants to Lessor the power to sign Lessee’s name and
generally to act on behalf of Lessee to execute and file financing statements
and other documents pertaining to any or all of the Equipment with copies of
all documents subsequent to filing provided to Lessee. Lessee hereby ratifies
its prior authorization for Lessor to file financing statements and amendments
thereto describing the Equipment and containing any other information required
by any applicable law (including without limitation the Uniform Commercial
Code) if filed prior to the date hereof. All notices required to be given
hereunder shall be deemed adequately given if sent by overnight deliver service
registered or certified mail to the addressee at its address stated herein, or
at such other place as such addressee may have specified in writing. This
Agreement and any Schedule and Annexes thereto constitute the entire agreement
of the parties with respect to the subject matter hereof. NO VARIATION OR
MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR
CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE PARTIES HERETO.



All notices to Lessee shall be sent to

Alexa Springs, Inc.

652 Southwestern Blvd

Coppell, Texas 75019

Attn: Marshall Sorokwasz

cc: Legal



     (d) If Lessee does not comply with any provision of this Agreement, Lessor
shall have the right, but shall not be obligated, to effect such compliance, in
whole or in part. All reasonable amounts spent and obligations incurred or
assumed by Lessor in effecting such compliance shall constitute additional rent
due to Lessor. Lessee shall pay the additional rent within five days after the
date Lessor sends written notice to Lessee requesting payment. Lessor’s
effecting such compliance shall not be a waiver of Lessee’s default.



 









 





     (e) Any rent or other amount not paid to Lessor when due shall bear
interest, from the due date until paid, at the lesser of eighteen percent (18%)
per annum or the maximum rate allowed by law. Any provisions in this Agreement
and any Schedule that are in conflict with any statute, law or applicable rule
shall be deemed omitted, modified or altered to conform thereto.
Notwithstanding anything to the contrary contained in this Agreement or any
Schedule, in no event shall this Agreement or any Schedule require the payment
or permit the collection of amounts in excess of the maximum permitted by
applicable law.



     (f) Lessee hereby irrevocably authorizes Lessor to adjust the Capitalized
Lessors Cost up or down by no more than ten percent (10%) within each Schedule
to account for equipment change orders, equipment returns, invoicing errors,
and similar matters. Lessee acknowledges and agrees that the rent shall be
adjusted as a result of the change in the Capitalized Lessors Cost. Lessor
shall send Lessee a written notice stating the final Capitalized Lessors Cost,
if it has changed.



     (g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF
LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT.



     (h) Any cancellation or termination by Lessor, pursuant to the provisions
of this Agreement, any Schedule, supplement or amendment hereto, of the lease
of any Equipment hereunder, shall not release Lessee from any then outstanding
obligations to Lessor hereunder.



     (i) To the extent that any Schedule would constitute chattel paper, as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest therein may be created through
the transfer or possession of this Agreement in and of itself without the
transfer or possession of the original of a Schedule executed pursuant to this
Agreement and incorporating this Agreement by reference; and no security
interest in this Agreement and a Schedule may be created by the transfer or
possession of any counterpart of the Schedule other than the original thereof,
which shall be identified as the document marked “Original” and all other
counterparts shall be marked “Duplicate”.



     (j) Each party hereto agrees to keep confidential, the terms and
provisions of the Documents and the transactions contemplated hereby and
thereby (collectively, the “Transactions”). Notwithstanding the foregoing, the
obligations of confidentiality contained herein, as they relate to the
Transactions, shall not apply to the federal tax structure or federal tax
treatment of the Transactions or other disclosures required by law, and each
party hereto (and any employee, representative, or agent of any party hereto)
may disclose to any and all persons, without limitation of any kind, the
federal tax structure and federal tax treatment of the Transactions. The
preceding sentence is intended to cause each Transaction to be treated as not
having been offered under conditions of confidentiality for purposes of Section
1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986, as
amended, and shall be construed in a manner consistent with such purpose. In
addition, each party hereto acknowledges that it has no proprietary or
exclusive rights to the federal tax structure of the Transactions or any
federal tax matter or federal tax idea related to the Transactions.



     IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed by their duly authorized representatives as of the date first
above written.



	 	 	 
	LESSOR:

	 	LESSEE:
	General Electric Capital Corporation

	 	Alexa Springs, Inc.
	 
	 	 
	By: /s/ W. Scott Cummins

	 	By: /s/ Marshall Sorokwasz
	


	 	

	 
	 	 
	Name: W. Scott Cummins

	 	Name: Marshall Sorokwasz
	 
	 	 
	Title: Risk Analyst

	 	Title: President








 










 





               SLB/CS(R062599) 4158756001 *LEAS8760*



EQUIPMENT SCHEDULE

SCHEDULE NO. 001

DATED THIS 10/26/04

TO MASTER LEASE AGREEMENT

DATED AS OF 10/26/04




	 	 	 
	Lessor & Mailing Address:

	 	Lessee & Mailing Address:
	
 

	 	
 
	 
	 	 
	General Electric Capital Corporation

	 	Alexa Springs, Inc.
	16479 Dallas Parkway #300

	 	652 Southwestern Blvd.
	Addison, TX 75001-2512

	 	Coppell, TX 75019







This Schedule is executed pursuant to, and incorporates by reference the terms
and conditions of, and capitalized terms not defined herein shall have the
meanings assigned to them in, the Master Lease Agreement identified above
(“Agreement” said Agreement and this Schedule being collectively referred to as
“Lease”). This Schedule, incorporating by reference the Agreement, constitutes
a separate instrument of lease.



A. Equipment: Subject to the terms and conditions of the Lease, Lessor agrees
to Lease to Lessee the Equipment described below (the
“Equipment”).



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Number	 	Capitalized	 	 	 	 	 	 
	of Units
	 	Lessor’s Cost
	 	Manufacturer
	 	Serial Number
	 	Model and Type of Equipment

	1
	 	$	1,938,290.89	 	 	 	 	 	 	 	 	 	 	 	 	 








	 	 	Water bottling line including Priority One depalletizer, s/n 04-291, Sentry
bottle conveyor, s/n CP10682, Sentry conveyor control panel, s/n CP10682,
Sentry rinser, s/n CP10682, Fogg filler/capper, s/n 763-10-3-04LH, Fogg cap
sorter/bulk hopper, s/n 755-21-3-04RH, Industrial Dynamics bottle inspector,
s/n 116958, Langguth labeler, s/n 2004-913, Markem SmartLase 110 laser
coder, s/n 131659, Kisters Kayat tray packer, s/n 275-04, Kisters Kayat tray
wrapper, s/n 122-04, Sentry case conveyor, s/n CP10682, Diagraph case coder,
s/n IJ42801509, Columbia case palletizer, s/n 0406-6328-2372, Wulftec pallet
wrapper, s/n 14614-1-0604, Santa Rosa 30,000 gallon-storage tank, s/n
M043774, UV Systems storage tank positive air filter, s/n 04-07-1186-01,
Pacific Ozone ozone generator, s/n 8/4/3873, Pacific Ozone ozone destruct,
s/n 798-6-4, Aquafine UV disinfectant filter, s/n LS04029-E-DSE, Ingersoll
Rand air compressor (60 HP), s/n CA2740U04125, Ingersoll Rand air dryer, s/n
DB00000322-070904

	 	 	Equipment immediately listed above is located at: 1055 Owley Rd., Mount
Ida, Montgomery County, AR 71957






	B.	 	Financial Terms





	 	 	 	 	 	 	 	 	 
	1.

	 	Advance Rent (if any): $ 26,125.00
	 	 	5.	 	 	Basic Term Commencement Date: November 10, 2004
	 
	 	 	 	 	 	 	 	 
	2.

	 	Capitalized Lessor’s Cost: $ 1,938,290.89
	 	 	6.	 	 	Lessee Federal Tax ID No.: 861110268
	 
	 	 	 	 	 	 	 	 
	3.

	 	Basic Term (No. of Months): 84 Months.
	 	 	7.	 	 	Last Delivery Date: November 10, 2004
	 
	 	 	 	 	 	 	 	 
	4.

	 	Basic Term Lease Rate Factor: 0.01347837
	 	 	8.	 	 	Daily Lease Rate Factor: 0.00044928








	9.	 	First Termination Date: Twelve (12) months after the Basic Term
Commencement Date.
	 
	10.	 	Interim Rent: For the period from and including the Lease Commencement
Date to but not including the Basic Term Commencement Date (“Interim
Period”), Lessee shall pay as rent (“Interim Rent”) for each unit of
Equipment, the product of the Daily Lease Rate Factor times the
Capitalized Lessor’s Cost of such unit times the number of days in the
Interim Period. Interim Rent shall be due on November 9, 2004.
	 
	11.	 	Basic Term Rent. Commencing on November 10, 2004 and on the same day of
each month thereafter (each, a “Rent Payment Date”) during the Basic Term,
Lessee shall pay as rent (“Basic Term Rent”) the product of the Basic Term
Lease Rate Factor times the Capitalized Lessor’s Cost of all Equipment on
this Schedule.




 









 












	C.	 	Tax Benefits Depreciation Deductions:






          1. Depreciation method is the 200 % declining balance method, switching
to straight line method for the 1st taxable year for which using the
straight line method with respect to the adjusted basis as of the beginning
of such year will yield a larger allowance, taking into account the 30% or
50% special depreciation allowance and basis adjustment under Section
168(k)(1) of the Code, whichever is applicable.




          2. Recovery Period: 7 years.




          3. Basis: 100 % of the Capitalized Lessor’s Cost.




	D.	 	Property Tax





APPLICABLE TO EQUIPMENT LOCATED IN AR: Lessee agrees that it will not list any
of such Equipment for property tax purposes or report any property tax
assessed against such Equipment until otherwise directed in writing by
Lessor. Upon receipt of any property tax bill pertaining to such
Equipment from the appropriate taxing authority, Lessor will pay such tax
and will invoice Lessee for the expense. Upon receipt of such invoice,
Lessee will promptly reimburse Lessor for such expense.




	 	 	Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment
responsibilities.






	E.	 	Article 2A Notice
	 
	 	 	IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL
CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES THE FOLLOWING
DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A) THE PERSON(S)
SUPPLYING THE EQUIPMENT IS Various — listed in the collateral description
(THE “SUPPLIER(S)”), (B) LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES,
INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S),
WHICH IS SUPPLYING THE EQUIPMENT IN CONNECTION WITH OR AS PART OF THE
CONTRACT BY WHICH LESSOR ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO SUCH
EQUIPMENT, LESSEE MAY COMMUNICATE WITH SUPPLIER(S) AND RECEIVE AN ACCURATE
AND COMPLETE STATEMENT OF SUCH PROMISES AND WARRANTIES, INCLUDING ANY
DISCLAIMERS AND LIMITATIONS OF THEM OR OF REMEDIES. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES
CONFERRED UPON A LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW OR HEREAFTER
CONFERRED BY STATUTE OR OTHERWISE WHICH MAY LIMIT OR MODIFY ANY OF LESSOR’S
RIGHTS OR REMEDIES UNDER THE DEFAULT AND REMEDIES SECTION OF THE AGREEMENT.






	F.	 	Stipulated Loss and Termination Value Table*





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Termination	 	Stipulated	 	 	 	 	 	Termination	 	Stipulated
	Rental	 	Value	 	Loss Value	 	 	 	 	 	Value	 	Loss Value
	Basic
	 	Percentage
	 	Percentage
	 	Rental
	 	Percentage
	 	Percentage

	1
	 	 	0.00	 	 	 	107.850	 	 	 	43	 	 	 	66.058	 	 	 	69.637	 
	2
	 	 	0.00	 	 	 	107.081	 	 	 	44	 	 	 	64.965	 	 	 	68.627	 
	3
	 	 	0.00	 	 	 	106.260	 	 	 	45	 	 	 	63.867	 	 	 	67.614	 
	4
	 	 	0.00	 	 	 	105.434	 	 	 	46	 	 	 	62.763	 	 	 	66.594	 
	5
	 	 	0.00	 	 	 	104.604	 	 	 	47	 	 	 	61.656	 	 	 	65.570	 
	6
	 	 	0.00	 	 	 	103.769	 	 	 	48	 	 	 	60.544	 	 	 	64.543	 
	7
	 	 	0.00	 	 	 	102.929	 	 	 	49	 	 	 	59.426	 	 	 	63.508	 
	8
	 	 	0.00	 	 	 	102.086	 	 	 	50	 	 	 	58.304	 	 	 	62.470	 
	9
	 	 	0.00	 	 	 	101.238	 	 	 	51	 	 	 	57.178	 	 	 	61.429	 
	 10
	 	 	0.00	 	 	 	100.385	 	 	 	52	 	 	 	56.046	 	 	 	60.380	 
	 11
	 	 	0.00	 	 	 	99.528	 	 	 	53	 	 	 	54.906	 	 	 	59.324	 







 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Termination	 	Stipulated	 	 	 	 	 	Termination	 	Stipulated
	Rental	 	Value	 	Loss Value	 	 	 	 	 	Value	 	Loss Value
	Basic
	 	Percentage
	 	Percentage
	 	Rental
	 	Percentage
	 	Percentage

	12
	 	 	0.00	 	 	 	98.666	 	 	 	54	 	 	 	53.762	 	 	 	58.264	 
	13
	 	 	96.736	 	 	 	97.799	 	 	 	55	 	 	 	52.615	 	 	 	57.201	 
	14
	 	 	95.781	 	 	 	96.927	 	 	 	56	 	 	 	51.464	 	 	 	56.133	 
	15
	 	 	94.821	 	 	 	96.051	 	 	 	57	 	 	 	50.308	 	 	 	55.062	 
	16
	 	 	93.855	 	 	 	95.169	 	 	 	58	 	 	 	49.146	 	 	 	53.983	 
	17
	 	 	92.884	 	 	 	94.282	 	 	 	59	 	 	 	47.979	 	 	 	52.900	 
	18
	 	 	91.909	 	 	 	93.391	 	 	 	60	 	 	 	46.808	 	 	 	51.813	 
	19
	 	 	90.930	 	 	 	92.496	 	 	 	61	 	 	 	45.630	 	 	 	50.719	 
	20
	 	 	89.948	 	 	 	91.597	 	 	 	62	 	 	 	44.448	 	 	 	49.621	 
	21
	 	 	88.961	 	 	 	90.694	 	 	 	63	 	 	 	43.262	 	 	 	48.519	 
	22
	 	 	87.968	 	 	 	89.786	 	 	 	64	 	 	 	42.069	 	 	 	47.409	 
	23
	 	 	86.972	 	 	 	88.873	 	 	 	65	 	 	 	40.868	 	 	 	46.292	 
	24
	 	 	85.971	 	 	 	87.957	 	 	 	66	 	 	 	39.662	 	 	 	45.171	 
	25
	 	 	84.965	 	 	 	87.034	 	 	 	67	 	 	 	38.453	 	 	 	44.045	 
	26
	 	 	83.954	 	 	 	86.107	 	 	 	68	 	 	 	37.244	 	 	 	42.920	 
	27
	 	 	82.939	 	 	 	85.176	 	 	 	69	 	 	 	36.033	 	 	 	41.793	 
	28
	 	 	81.918	 	 	 	84.239	 	 	 	70	 	 	 	34.816	 	 	 	40.660	 
	29
	 	 	80.892	 	 	 	83.296	 	 	 	71	 	 	 	33.595	 	 	 	39.522	 
	30
	 	 	79.861	 	 	 	82.350	 	 	 	72	 	 	 	32.368	 	 	 	38.379	 
	31
	 	 	78.827	 	 	 	81.399	 	 	 	73	 	 	 	31.136	 	 	 	37.231	 
	32
	 	 	77.789	 	 	 	80.445	 	 	 	74	 	 	 	29.898	 	 	 	36.078	 
	33
	 	 	76.747	 	 	 	79.487	 	 	 	75	 	 	 	28.655	 	 	 	34.919	 
	34
	 	 	75.699	 	 	 	78.523	 	 	 	76	 	 	 	27.407	 	 	 	33.755	 
	35
	 	 	74.647	 	 	 	77.555	 	 	 	77	 	 	 	26.154	 	 	 	32.585	 
	36
	 	 	73.592	 	 	 	76.584	 	 	 	78	 	 	 	24.895	 	 	 	31.410	 
	37
	 	 	72.530	 	 	 	75.605	 	 	 	79	 	 	 	23.631	 	 	 	30.230	 
	38
	 	 	71.464	 	 	 	74.623	 	 	 	80	 	 	 	22.362	 	 	 	29.044	 
	39
	 	 	70.394	 	 	 	73.637	 	 	 	81	 	 	 	21.087	 	 	 	27.853	 
	40
	 	 	69.318	 	 	 	72.645	 	 	 	82	 	 	 	19.806	 	 	 	26.657	 
	41
	 	 	68.235	 	 	 	71.646	 	 	 	83	 	 	 	18.521	 	 	 	25.455	 
	42
	 	 	67.148	 	 	 	70.643	 	 	 	84	 	 	 	17.229	 	 	 	24.247	 








	 	 	* The Stipulated Loss Value or Termination Value for any unit of Equipment
shall be the Capitalized Lessor’s Cost of such unit multiplied by the
appropriate percentage derived from the above table. In the event that the
Lease is for any reason extended, then the last percentage figure shown
above shall control throughout any such extended term.
	 
	G.	 	Modifications and Additions for This Schedule Only
	 
	 	 	For purposes of this Schedule only, the Agreement is amended as follows:





1. The INDEMNIFICATION Section subsection (b) of the Lease is hereby amended
by deleting the word “and” immediately preceding “(ii)” on the second line
thereof and inserting the following at the end thereof:



; (iii) each item of Equipment constitutes “qualified property” pursuant to
Section 168(k) of the Internal Revenue Code of 1986, as now and hereafter
amended (the “Code”), and is eligible for the additional first-year
depreciation deduction equal to (A) thirty percent (30%) or (B) fifty
percent (50%) of 100% of the Capitalized Lessor’s Cost of the Equipment
contemplated by the Code, whichever is applicable; (iv) the Equipment shall
be treated as originally placed in service not earlier than the date of the
execution and delivery of this Schedule, or in the event the transaction is
a sale-leaseback transaction, Lessee shall not have placed in service the
Equipment subject to this Lease at any time prior to three months before the
execution and delivery of this Schedule; (v) Lessee has not arranged to
purchase, and Lessor is not purchasing the Equipment pursuant to a binding
written contract entered into before September 11, 2001, if clause (iii) (A)
above applies, or not before May 06, 2003, if clause (iii) (B) above
applies, and (vi) each item of Equipment shall be placed in service before
January 1, 2005.




 









 








2. The LEASING Section subsection (b) of the Lease is hereby deleted in its
entirety and the following substituted in its stead:



b) The obligation of Lessor to purchase the Equipment from Lessee and
to lease the same to Lessee shall be subject to receipt by Lessor, on or
prior to the earlier of the Lease Commencement Date or Last Delivery Date
therefor, of each of the following documents in form and substance
satisfactory to Lessor: (i) a Schedule for the Equipment (ii) evidence of
insurance which complies with the requirements of the INSURANCE Section of
the Lease, and (iii) such other documents as Lessor may reasonably request.
Once the Schedule is signed, the Lessee may not cancel the Lease.



3. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease shall
be deleted and the following substituted in its stead:



The parties acknowledge that this is a sale/leaseback transaction and
the Equipment is in Lessee’s possession as of the Lease Commencement Date.



4. BILL OF SALE




          Lessee, in consideration of the Lessor’s payment of the amount set
forth in B 2. above, which includes any applicable sales taxes (which
payment Lessee acknowledges), hereby grants, sells, assigns, transfers and
delivers to Lessor the Equipment along with whatever claims and rights
Seller may have against the manufacturer and/or Supplier of the Equipment,
including but not limited to all warranties and representations. At Lessors
request Lessee will cause Supplier to deliver to Lessor a written statement
wherein the Supplier (i) consents to the assignment to Lessor of whatever
claims and rights Lessee may have against the Supplier, (ii) agrees not to
retain any security interest, lien or other encumbrance in or upon the
Equipment at any time, and to execute such documents as Lessor may request
to evidence the release of any such encumbrance, and (iii) represents and
warrants to Lessor (x) that Supplier has previously conveyed full title to
the Equipment to Lessee, (y) that the Equipment was delivered to Lessee and
installation completed, and (z) that the final purchase price of the
Equipment (or a specified portion of such purchase price) has been paid by
Lessee.




          Lessor is purchasing the Equipment for leasing back to Lessee pursuant
to the Lease. Lessee represents and warrants to Lessor that (i) Lessor will
acquire by the terms of this Bill of Sale good title to the Equipment free
from all liens and encumbrances whatsoever; (ii) Lessee has the right to
sell the Equipment; and (iii) the Equipment has been delivered to Lessee in
good order and condition, and conforms to the specifications, requirements
and standards applicable thereto; and (iv) the equipment has been accurately
labeled, consistent with the requirements of 40 CFR part 82 Subpart E, with
respect to products manufactured with a controlled (ozone-depleting)
substance.




          Lessee agrees to save and hold harmless Lessor from and against any and
all federal, state, municipal and local license fees and taxes of any kind
or nature, including, without limiting the generality of the foregoing, any
and all excise, personal property, use and sales taxes, and from and against
any and all liabilities, obligations, losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred by or
asserted against Lessor as a consequence of the sale of the Equipment to
Lessor.




5. ACCEPTANCE




          Pursuant to the provisions of the Lease, as it relates to this
Schedule, Lessee hereby certifies and warrants that (i) all Equipment listed
above has been delivered and installed (if applicable); (ii) Lessee has
inspected the Equipment, and all such testing as it deems necessary has been
performed by Lessee, Supplier or the manufacturer; and (iii) Lessee accepts
the Equipment for all purposes of the Lease, the purchase documents and all
attendant documents.




          Lessee does further certify that as of the date hereof (i) Lessee is
not in default under the Lease; (ii) the representations and warranties made
by Lessee pursuant to or under the Lease are true and correct on the date
hereof and (iii) Lessee has reviewed and approves of the purchase documents
for the Equipment, if any.




6. EQUIPMENT SPECIFIC PROVISIONS




See Exhibit I titled Food Processing Return Provisions




7. LEASE TERM OPTIONS



 









 






          Early Lease Term Options




               The Lease is hereby amended by adding the following to the end thereof:




               CANCELLATION OPTION:




               (a) So long as no default exists hereunder and expressly provided
that all of the terms and conditions of this Provision are fulfilled, Lessee
may cancel the Agreement as to all (but not less than all) of the Equipment
on this Schedule as of any one of the Cancellation Dates set forth below
(each, a “Cancellation Date”) upon at least 90 days prior written notice
(the “Notice Date”) to Lessor (which notice shall be irrevocable and shall
be sent to the attention of Lessor’s Asset Management Organization, 44 Old
Ridgebury Road, Danbury, CT 06810-5105). Such notice shall state the
Cancellation Date which shall apply. If all of the terms and conditions of
this Provision are not fulfilled, this Lease shall continue in full force
and effect and Lessee shall continue to be liable for all obligations
thereunder, including, without limitation, the obligation to continue paying
rent.




               (b) Prior to the Cancellation Date, Lessee shall




                    (i) pay to Lessor, as additional rent, (A) the Cancellation Value
(set forth below for the applicable Cancellation Date) for the Equipment,
plus (B) all rent and all other sums due and unpaid as of the Cancellation
Date (including, but not limited to, any Rent payment due and payable on the
Cancellation Date and any sales taxes and property taxes); and




                    (ii) return the Equipment in full compliance with the RETURN OF
EQUIPMENT Section of the Lease, such compliance being independently verified
by an independent appraiser selected by Lessor (reasonably acceptable to
Lessee) to determine that the Equipment is in such compliance, which
determination shall be final, binding and conclusive. Lessee shall bear all
costs associated with such appraiser’s determination and such costs, if any,
to cause the Equipment to be in full compliance with the RETURN OF EQUIPMENT
Section of the Lease on or prior to such Cancellation Date.




               (c) The Cancellation Dates and the applicable Cancellation Values are
as set forth below:



	 	 	 	 	 
	November 10, 2009
	 	$	533,030.00	 








               (d) Lessee shall, from the applicable Notice Date through the
Cancellation Date,




                    (i) continue to comply with all of the terms and conditions of the
Lease, including, but not limited to, Lessee’s obligation to pay rent, and




                    (ii) make the Equipment available to Lessor in such a manner as to
allow Lessor to market and demonstrate the Equipment to potential purchasers
or lessees from such premises at no cost to Lessor; provided, however, that,
subject to Lessor’s right to market and demonstrate the Equipment to
potential purchasers or lessees from time to time, Lessee may still use the
Equipment until the Cancellation Date.




               (e) Lessee shall, from the applicable Cancellation Date through the
earlier of the date the Equipment is sold by Lessor to a third party or 30
days following the Cancellation Date, comply with the following terms and
conditions:




                    (i) Continue to provide insurance for the Equipment, at Lessee’s own
expense, in compliance with the terms found in the INSURANCE Section of the
Lease, and




                    (ii) Make the Equipment available to Lessor and/or allow Lessor to
store the Equipment at Lessee’s premises, in such a manner as to allow
Lessor to market and demonstrate the Equipment to potential purchasers or
lessees from such premises at no cost to Lessor.




               (f) The proceeds of any sale or re-lease of the Equipment after
Lessee has exercised its Cancellation Option shall be for the sole benefit
of Lessor and Lessee shall have no interest in or any claim upon any of such
proceeds.




               The Lease is amended by adding the following thereto:



 









 






               EARLY PURCHASE OPTION:




               (a) Provided that the Lease has not been earlier terminated and
provided further that Lessee is not in default under the Lease or any other
agreement between Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS BUT
NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO LESSOR OF LESSEE’S IRREVOCABLE
ELECTION TO EXERCISE SUCH OPTION, purchase on an AS IS BASIS all (but not
less than all) of the Equipment listed and described in this Schedule on any
of the rent payment dates (each an “Early Purchase Date”) which is listed
below at the price equal to the percent of the Capitalized Lessor’s Cost
listed below (each a “FMV Early Option Price”), plus all applicable sales
taxes:




# of Months from the Basic     Percent of the




Term Commencement Date         Capitalized Lessor’s Cost




	 	 	 
	48

	 	fifty six and 50/100 percent (56.50%)
	 
	 	 
	72

	 	twenty eight and 50/100 percent (28.50%)








Lessor and Lessee agree that the FMV Early Option Price is a reasonable
prediction of the Fair Market Value (as such term is defined in the PURCHASE
OPTION Section subsection (b) of the Lease hereof) of the Equipment at the
time the option is exercisable. Lessor and Lessee agree that if Lessee
makes any non-severable improvement to the Equipment which increases the
value of the Equipment and is not required or permitted by the MAINTENANCE
Section or the RETURN OF EQUIPMENT Section of the Lease prior to lease
expiration, then at the time of such option being exercised, Lessor and
Lessee shall adjust the purchase price to reflect any addition to the price
anticipated to result from such improvement. (Each purchase option granted
by this subsection shall be referred to herein as an “Early Purchase
Option”.)




               (b) If Lessee exercises its Early Purchase Option with respect to the
Equipment leased hereunder, then on the Early Purchase Option Date, Lessee
shall pay to Lessor any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early Option Price, plus
all applicable sales taxes, to Lessor in cash.




	H.	 	Payment Authorization
	 
	 	 	You are hereby irrevocably authorized and directed to deliver and apply the
proceeds due under this Schedule as follows:





	 	 	 	 	 	 	 	 	 
	Company Name
	 	Address
	 	Amount

	Alexa Springs, Inc.
	 	 	 	 	 	$	1,938,290.89	 
	Alexa Springs, Inc. — Fee Payable
	 	 	 	 	 	$	85,000.00	 
	 
	 	 	 	 	 	 	
 	 
	Total
	 	 	 	 	 	$	2,023,290.89	 







     This authorization and direction is given pursuant to the same authority authorizing the above-mentioned financing.



     Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding
or effective with respect to the Agreement or Equipment until executed on
behalf of Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.



 









 





     IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first
above written.



	 	 	 
	LESSOR:

	 	LESSEE:
	 
	 	 
	General Electric Capital Corporation

	 	Alexa Springs, Inc.
	 
	 	 
	By: /s/ W. Scott Cummins

	 	By: /s/ Marshall Sorokwasz
	


	 	

	 
	 	 
	Name: W. Scott Cummins

	 	Name: Marshall Sorokwasz
	 
	 	 
	Title: Risk Analyst

	 	Title: President