Exhibit 10.1
Javo Dispenser, LLC
MASTER EQUIPMENT LEASE AGREEMENT
1.
LEASE-OWNERSHIP.
On and subject to the terms and provisions hereof, JAVO
DISPENSER, LLC, a Delaware limited liability company ("Lessor") hereby agrees to
lease to Javo Beverage Company, Inc., a Delaware corporation ("Lessee"), and
Lessee hereby agrees to lease from Lessor, the personal property and equipment
described in each Schedule of Equipment executed and delivered by Lessor and
Lessee from time to time pursuant to this Master Equipment Lease Agreement (the
"Agreement"), together with all repairs, refurbishments, replacements and
substitutions thereof (collectively, the "Equipment"). Each Schedule of
Equipment shall be substantially in the form attached hereto as Exhibit A, which
is hereby incorporated herein by this reference, and shall contain any
additional terms and conditions as may be mutually agreed upon by Lessor and
Lessee. Each such Schedule of Equipment shall constitute a separate lease, and
may hereafter be referred to as a "Lease." All Leases evidenced by Schedules of
Equipment executed and delivered pursuant to this Agreement shall commence on or
before July 30, 2007, and the maximum aggregate cost to Lessor of Equipment
covered (i) by any Schedule of Equipment shall be not less than Twenty-Five
Thousand Dollars ($25,000), and (ii) by all Schedules of Equipment shall not
exceed Two Million Dollars ($2,000,000). THIS IS A NON-CANCELLABLE LEASE FOR THE
TERM INDICATED. THIS TRANSACTION IS NOT A SALE OR A LOAN. The Equipment is, and
shall at all times herein remain, the personal property of Lessor
notwithstanding the fact that it may become affixed to realty or improvements
thereon, and the title thereto shall remain in Lessor; and Lessee shall have no
right, title or interest therein or thereto except as expressly set forth in
this Agreement.
2.
SELECTION OF EQUIPMENT - NO WARRANTIES - ACCEPTANCE.
a.
LESSOR IS NOT A MANUFACTURER OR SUPPLIER OF THE EQUIPMENT, NOR A DEALER IN
SIMILAR EQUIPMENT, HAS NOT INSPECTED THE EQUIPMENT, AND HAS NOT MADE AND DOES
NOT MAKE, TO LESSEE OR OTHERS GENERALLY, ANY REPRESENTATION, WARRANTY OR
COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, OR THE DELIVERY,
INSTALLATION OR TIMELINESS THEREOF, NOR WITH RESPECT TO THE EQUIPMENT'S TITLE,
DESCRIPTION, DESIGN, CONDITION, DURABILITY, COMPLIANCE WITH SPECIFICATIONS OR
REGULATIONS, QUALITY SUITABILITY, FITNESS FOR USE OR FITNESS FOR ANY PARTICULAR
PURPOSE, OR MERCHANTABILITY, AND AS BETWEEN LESSOR AND LESSEE, ALL EQUIPMENT
SHALL BE ACCEPTED AND LEASED BY LESSEE "WHERE IS," "AS IS" AND "WITH ALL
FAULTS," AND LESSOR SHALL NOT BE RESPONSIBLE FOR ANY PATENT OR LATENT DEFECTS
THEREIN, OR ANY DAMAGES WHETHER ACTUAL, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
ARISING THEREFROM. LESSEE AGREES THAT ALL SUCH CLAIMS SHALL BE ASSERTED AND/OR
SETTLED DIRECTLY WITH THE MANUFACTURER(S) AND/OR SUPPLIER(S) AND THAT NO SUCH
CLAIMS SHALL BE ASSERTED AGAINST LESSOR.
b.
IF THE EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT OPERATE AS REPRESENTED OR
WARRANTED BY THE MANUFACTURER OR SUPPLIER OR IS UNSATISFACTORY FOR ANY REASON,
LESSEE SHALL MAKE ANY CLAIM ON ACCOUNT THEREOF SOLELY AGAINST THE MANUFACTURER
AND/OR THE SUPPLIER OF THE EQUIPMENT AND