PWC LEASING, LLC MASTER EQUIPMENT LEASE AGREEMENT (Primo Water Corporation)
Exhibit 10.27
PWC LEASING, LLC
This MASTER EQUIPMENT LEASE AGREEMENT (the “Agreement”) is made and entered into as of the
29th day of March, 2006, by and between PWC Leasing, LLC, a North Carolina limited
liability company (the “Lessor”), and Primo Water Corporation, a Delaware limited liability company
(the “Lessee”).
STATEMENT OF PURPOSE
A. Lessee desires to lease from Lessor, and Lessor desires to lease to Lessee, upon the terms
and conditions contained herein, certain equipment to be used in Lessee’s business, as set forth
below.
NOW, THEREFORE, in consideration of the premises, the mutual covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Leased Property. Lessor hereby leases to Lessee the equipment and materials
specified on Schedule 1, which is attached hereto and is hereby made a part hereof.
Additional Schedules (consecutively numbered and referencing this Agreement) may be added to this
Agreement, from time to time, if such additional Schedules are signed by a duly authorized
representative of both Lessor and Lessee. Such additional Schedules shall become part of this
Agreement as of the effective date indicated in the respective Schedule. All equipment and
materials specified on a Schedule which is made a part hereof are referred to collectively or
individually, as appropriate to the context, as the “Equipment”. The Schedules attached to this
Agreement are collectively referred to as the “Schedules” and individually as a “Schedule”, as
circumstances require.
2. Use of Equipment. The Equipment shall be used solely in connection with Lessee’s
business, which is the sale and distribution of bottled water. Lessee shall not (a) abandon the
Equipment, (b) sublease the Equipment without the prior written consent of Lessor, or (c) directly
or indirectly create, incur or suffer to exist any lien, security interest or other encumbrance of
any kind on the Equipment. Any payments received by Lessee under any permitted sublease in excess
of the rent due hereunder shall be paid to Lessor. Lessee shall at all times use the Equipment in
accordance with all applicable laws, regulations and ordinances promulgated by any federal, state
or local governmental body, agency or authority.
3. Term. The term of the leases applicable to Equipment referenced in the Schedules
shall commence upon the date, and continue for the period, specified in the applicable Schedule.
Each lease term applicable to a particular item of Equipment is referred to herein as the “Term”.
This Agreement may be terminated by either party effective upon no less than thirty (30) days
notice to the other party. Upon termination, no additional Schedules shall be entered into or
become effective under this Agreement. Leases in effect pursuant to Schedules
approved prior to the termination of this Agreement shall continue in full force and effect
following such termination for their respective Terms, unless otherwise agreed to by the parties.
4. Title to Property. Title to the Equipment at all times shall remain with Lessor.
In the event that Lessor deems it advisable at any time to prepare or file notices, filings or
other documents (e.g., UCC-1’s or other forms of financing statements) in order to protect its
interest in and to the Equipment, Lessee shall cooperate fully with Lessor and shall sign each such
document. Lessee hereby irrevocably consents to and authorizes Lessor to act as Lessee’s
attorney-in-fact to sign each and every such document in Lessee’s name, place and stead, with as
much force and effect as if Lessee had itself manually signed such document.
5. Rent. Upon commencement of a Term, Lessee agrees to pay to Lessor rent with
respect to applicable Equipment (“Rent”), at the rates specified in the applicable Schedule, in
advance on or before the first (1st) day of each subject month during the Term. All
payments shall specify the applicable invoice number with the payment. Payments may be made by
check, electronic transfer (with confirmation) or any other means agreed to by the parties. Any
payment not designated may be applied to any outstanding or overdue amounts owed by Lessee to
Lessor in Lessor’s sole discretion.
6. Taxes, Assessments. Unless otherwise agreed to by Lessor, Lessee shall (a) pay all
taxes, assessments and any other fees or expenses associated, with or resulting from, Lessee’s
possession use or operation of the Equipment during the Term, (b) file all returns required of
Lessee in that regard, and (c) furnish, to Lessor’s reasonable satisfaction, verification that
payment has been made before said taxes, assessments or fees become delinquent. Lessee may contest
any tax, assessment or fee charged, at its expense.
7. Maintenance. Lessee, at its own cost and expense, at all times during the
applicable Term shall maintain the Equipment in good operating order, repair, condition and
appearance in accordance with the manufacturer’s recommended procedures. Upon expiration or other
termination of the Term, to the extent Lessee has not exercised the option to purchase described in
Section 19, Lessee shall return to Lessor the Equipment in good operating order, repair, condition
and appearance, normal wear and tear, damage by fire or other casualty, or theft alone excepted.
8. Alterations. Lessee shall not alter any item of Equipment or affix or install any
accessory, equipment or device that would (a) impair any applicable warranty or the originally
intended function or use or (b) reduce the value of the Equipment. All repairs, parts,
accessories, equipment and devices installed to or on the Equipment (excluding temporary
replacements) shall remain property of Lessor. Lessee may paint the Equipment and place names,
signs or designs thereon; provided, however, that Lessee must repaint the Equipment upon the
expiration of the applicable Term, if so requested by Lessor.
9. Risk of Loss; Casualties. All risk of loss with respect to Equipment shall be
borne by Lessee from and after delivery of the same by Lessor through and until surrender and
redelivery to Lessor. If any piece of Equipment is lost, stolen destroyed or irreparably damaged
from any cause whatsoever, prior to its return to Lessor, Lessee promptly shall notify Lessor.
Within ninety (90) days thereafter (or within such longer period as may be agreed to by Lessor if
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Lessee is prosecuting claims for recovery) Lessee shall pay to Lessor the lesser of the
balance of Rent due or the “Stipulated Loss Value” specified on the applicable Schedule. Upon such
payment, the lease of such Equipment shall cease.
10. Insurance. Lessee, at its own cost and expense, at all times during the
applicable Term shall keep the Equipment insured against all risks for the full value of the
Equipment (and in no event for less than the Stipulated Loss Value) and shall maintain public
liability insurance against such risks and in such amounts as may be determined reasonably from
time-to-time by Lessor. All such policies of insurance shall name Lessor as a co-insured, shall be
in such form and with such carriers as are reasonably acceptable to Lessor and shall provide that
they may not be canceled as to Lessor or altered to lessen the coverage of Lessor, without at least
thirty (30) days’ notice to Lessor. All such insurance shall be primary, without right of
contribution from any other insurance carried by Lessor, and shall provide that all proceeds are to
be payable solely to Lessor.
11. Location of Equipment on Premises Other Than Lessee’s. Lessee may locate
Equipment on property other than its own; provided, however, that (a) Lessee shall so notify
Lessor; (b) Lessee shall require the owner of the premises upon which the Equipment is located to
allow Lessor access to such premises during normal working hours and upon reasonable notice to
inspect the Equipment; (c) if the policies of insurance which Lessee is required to maintain
hereunder will not cover the Equipment at such location, Lessee shall require the owner of the
premises on which the Equipment is located to maintain property and general liability insurance
covering such Equipment and Lessor in the amounts and of the nature required of Lessee hereunder;
and (d) to the extent requested by Lessor, Lessee shall obtain a waiver, in a form acceptable to
Lessor, from the owner of such property of any rights to the Equipment.
12. Lessor’s Right of Inspection. Lessor shall have the right at any time during
business hours to enter the premises of Lessee at which Lessee keeps the Equipment and shall be
given free access thereto and afforded necessary facilities for the purpose of inspection.
13. Warranties.
a. Lessee acknowledges and agrees that each item of Equipment listed on any Schedule
has been selected by Lessee for inclusion in this Agreement, based solely upon Lessee’s own
judgment and without reliance upon any representations or warranties by Lessor.
b. LESSEE ACKNOWLEDGES AND AGREES THAT (I) LESSOR IS NOT THE MANUFACTURER OF THE
EQUIPMENT; (II) LESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY AS TO THE
MERCHANTABILITY, FITNESS OR SUITABILITY OF THE EQUIPMENT FOR THE PARTICULAR PURPOSES OR
INTENDED USES OF LESSEE; (III) LESSOR MAKES NO REPRESENTATIONS AND SPECIFICALLY DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT; (IV) THE ONLY APPLICABLE
WARRANTIES SHALL BE WARRANTIES, IF ANY, PROVIDED BY THE MANUFACTURER OF THE EQUIPMENT, WHICH
WARRANTIES MAY OR MAY NOT BE TRANSFERABLE TO LESSEE; (V)
CERTAIN PIECES OF THE
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EQUIPMENT MAY BE USED, AND ARE PROVIDED, WITHOUT WARRANTY; (VI)
LESSOR’S SOLE RESPONSIBILITY WITH REGARD TO ANY CLAIM OF DEFECT OR BREACH OF MANUFACTURERS’
WARRANTY WILL BE TO LEND REASONABLE ASSISTANCE TO LESSEE IN THE PROSECUTION OF A CLAIM
AGAINST THE MANUFACTURER; AND (VII) LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY USER OF
THE EQUIPMENT FOR ANY CLAIM, LOSS OR DAMAGE CAUSED OR ALLEGEDLY CAUSED DIRECTLY, INDIRECTLY,
INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, BY ANY INADEQUACY THEREOF OR DEFECT OR
DEFICIENCY THEREIN OR BY ANY INCIDENT WHATSOEVER THEREWITH, WHETHER ARISING IN TORT, STRICT
LIABILITY, NEGLIGENCE, CONTRACT OR OTHERWISE, OR IN ANY WAY RELATED TO OR ARISING FROM THIS
AGREEMENT.
▇. ▇▇▇▇▇▇ hereby assigns to Lessee any warranties covenants and representations of the
manufacturer or seller of the Equipment, to the extent assignable. Neither party will take
any actions or fail to take any action the effect of which would be to invalidate any such
warranty. Any amounts received by Lessee as payments under any warranty or as the result of
the prosecution of any claim against any manufacturer shall be applied first to the repair,
restoration or replacement of the Equipment, with any balance, less out-of-pocket expenses
of Lessee, being paid to Lessor.
14. Indemnity. Lessee assumes liability for, and agrees to indemnify, defend and hold
Lessor, its agents, employees, successors and assigns, harmless from any and all actions, suits,
liabilities, obligations and claims of every nature (including, without limitation, those arising
from contracts, strict or absolute liability in tort, product liability, negligence or any other
cause) and from any and all damages, awards, penalties, fines, forfeitures, settlements, interest
and reasonable attorneys’ fees awarded to any person whomsoever and regardless of the reason, which
directly or indirectly result from or relate to the manufacture, delivery, leasing, use,
possession, operation, condition, repossession, recovery, return, disablement or storage of the
Equipment.
15. Default. Each of the following shall constitute an “Event of Default” hereunder:
a. Non-payment by Lessee of any sum required hereunder (including Rent), which
non-payment shall continue beyond five (5) days after notice from Lessor;
b. A petition being filed against Lessee under any bankruptcy statute, or any receiver,
trustee, custodian or similar official is appointed to take possession of the properties of
Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in
effect within sixty (60) days from the date of filing or appointment;
c. Lessee making an assignment for the benefit of creditors or filing any petition or
action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law
or laws for the relief of, or relating to, debtors;
d. Lessee liquidating, dissolving, or ceasing to conduct its business, without the
written consent of Lessor;
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e. Any person in possession of, or otherwise claiming an interest in, the Equipment
taking action against the Equipment or otherwise asserting a claim against the Equipment,
which action or claim Lessee has not caused to be dismissed within sixty (60) days of notice
to Lessee; or
f. Any other circumstance of non-performance by a party of any covenant or condition of
this Agreement applicable to such party, which non-performance continues beyond thirty (30)
days after notice from the non-defaulting party, unless the non-defaulting party is
satisfied that the defaulting party is diligently pursuing a cure of such non-performance.
16. Lessor’s Remedies for Default. In the case of an Event of Default with respect to
which Lessee is the defaulting party, Lessor may:
a. Proceed by appropriate court action, in law or equity, to enforce performance by
Lessee of the applicable covenants of this Agreement or to recover damages for the breach
thereof;
b. Peacefully enter, with or without legal process, upon the premises where the
Equipment is located and by reasonable action remove the same without being liable to any
suit, action or other proceeding by Lessee, and upon such retaking of Equipment, the
applicable Term shall cease; provided, however, that Lessor shall have the right to recover
from Lessee any and all amounts that under the terms of this Agreement may then be due or
that may have accrued through the date of such cessation, including all costs and expenses
(including reasonable attorneys’ fees) incurred in the repossession, and together with all
damages to which Lessor may be entitled as a matter of law, including, but not limited to,
the loss of its bargain, the present value of all Rent that would otherwise have accrued
from the date of cessation to the date the Term would otherwise have ended, less the present
value of the Rent which Lessor reasonably estimates to be obtainable by Lessor for the
Equipment during such period (present value in all cases to be computed by discounting at a
rate equal to the judgment rate of interest in effect under the laws of the State of North
Carolina as of the date of calculation, compounded at the same frequency as rent is payable
hereunder had the Term not ceased);
c. Terminate this Agreement; and/ or
d. Avail itself of any other remedy that might be available under applicable law.
17. Lessee’s Remedies for Default. In the case of an Event of Default with respect to
which Lessor is the defaulting party, Lessee may:
a. Terminate this Agreement; and/ or
b. Avail itself of any other remedy that might be available under applicable law.
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18. Non Waiver of Default. No failure or delay by a party in exercising any rights
under this Agreement shall prevent the exercise of such rights at a later date. A waiver of any
breach shall not be deemed a waiver of subsequent breaches of the same or other nature.
19. Option to Purchase.
a. So long as no Event of Default shall have occurred and be continuing (or any event
which the giving of notice or the passage of time or both would constitute an Event of
Default), Lessee shall be entitled, at its option, upon written notice to Lessor at least
one-hundred eighty (180) days prior to the purchase date specified in the notice, which
shall be not later than the date of the expiration of the Term (“Purchase Date”), to
purchase on the Purchase Date all or the portion of the Equipment specified in such notice
(“Purchased Equipment”), for an amount, payable in immediately available funds, equal to the
fair market sales value of the Purchased Equipment as of the Purchase Date, determined in
accordance with Section 19.c. hereof, plus any applicable sales, excise or other taxes
imposed as a result of such sale (other than gross or net income taxes attributable to such
sale). On the Purchase Date Lessor shall convey to Lessee marketable title to the Purchased
Equipment, free and clear of all liens and encumbrances not specifically assumed by Lessee,
against payment of the purchase price to Lessor by Lessee in immediately available funds.
Lessor’s sale of the Purchased Equipment shall be on an as-is, where-is basis, without any
representation or warranty by or recourse to Lessor. Lessor specifically excludes any
warranty of merchantability or fitness for particular use or purpose with respect to the
Purchased Equipment.
b. If Lessee has elected to exercise its purchase option, as provided in Section 19.a.
hereof, then as soon as practicable following Lessor’s receipt of the written notice from
Lessee of Lessee’s intent to exercise such option, Lessor and Lessee shall consult for the
purpose of determining the fair market sales value of the Purchased Equipment as of the
Purchase Date, and any values agreed upon in writing shall constitute such fair market sales
value for the purposes of this Section 19. If Lessor and Lessee fail to agree upon such
value prior to four (4) months before the Purchase Date, either party may request that such
values be determined by the appraisal procedure as set forth in Section 19.c. hereof
(“Appraisal Procedure”). Lessee shall pay all costs and expenses of all appraisers required
in connection with the Appraisal Procedure. For all purposes of this Section 19, fair
market sales value shall be determined on the basis of, and shall equal in value, the amount
which would be obtained in an arm’s length transaction between an informed and willing
buyer-user (other than a scrap dealer) and an informed and willing seller under no
compulsion to sell, and in such determination, costs of removal of the Purchased Equipment
from its then location shall not be a deduction from such fair market sales value, and it
shall be assumed (whether or not the same be true) that the Purchased Equipment has been
maintained in accordance with the provisions of this Agreement and would have been returned
to Lessor in compliance with the requirements of Section 7 hereof.
c. The procedure for determining the fair market sales value of the Purchased Equipment
in the event that Lessor and Lessee fail to agree upon such value under the circumstances
described in Section 19.b. hereof shall be as follows: If either party hereto
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shall have
given written notice to the other requesting determination of such value by the Appraisal
Procedure, the parties shall consult for the purpose of appointing a qualified independent
appraiser by mutual agreement. If no such appraiser is so appointed within ten (10) days
after such notice is given, each party shall appoint an independent appraiser within fifteen
(15) days after such notice is given, and the two (2) appraisers so appointed shall within
twenty (20) days after such notice is given appoint a third independent appraiser. Any
appraiser or appraisers appointed pursuant to the foregoing procedure shall be instructed to
determine, within forty-five (45) days after appointment, the fair market sales value of the
Purchased Equipment. If the parties shall have appointed a single appraiser, his or her
determination of value shall be final. If three (3) appraisers shall be appointed, the
values determined by the three (3) appraisers shall be averaged, and, unless such average
shall equal the value determined by the middle appraisal (in which event such average shall
be controlling) the appraisal that differs the most shall be excluded, the remaining two (2)
determinations shall be averaged, and such average shall be final.
20. Notices. All notices, requests, demands, claims and other communications
hereunder must be in writing and shall be deemed duly given when sent by registered or certified
mail, return receipt requested, postage prepaid, and addressed to the intended recipient at the
last address provided by each party to the other party for such purposes; provided, however, that
any party may send any notice, request, demand, claim or other communication hereunder to the
intended recipient at such address using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice,
request, demand, claim or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient.
21. Limited Assignment. Lessor and Lessee agree that the rights and obligations under
this Agreement shall inure to, and be binding on, their respective successors and assigns;
provided, however, that Lessee shall not assign or convey its interest hereunder, including an
assignment by operation of law pursuant to a merger, consolidation, or other business combination,
without the prior written consent of Lessor.
22. Merger Clause; Amendments. There is no arrangement, agreement or understanding by
or between the contracting parties, expressed or implied in any manner, relating to the subject
matter hereof not herein specifically stated. This Agreement shall not be altered or amended
except by a writing signed by both Lessor and Lessee.
23. Governing Law. This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of North Carolina without giving affect to any choice or
conflict of law provision or rule (whether of the State of North Carolina or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of North Carolina. Any legal action or proceeding with respect to this Agreement may be brought
only in the courts of the State of North Carolina in Forsyth County, or of the United States for
the District encompassing Forsyth County. By execution and delivery of this
Agreement, Lessee hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts.
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24. Severability. If any provision herein is found to be invalid by a court of
competent jurisdiction, it shall be considered deleted herefrom, and shall not invalidate the
remaining provisions.
25. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one and the same
instrument.
[The Next Page is the Signature Page]
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IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be executed by their
authorized representatives, all as of the date first above written.
| “Lessor” PWC LEASING, LLC |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| ▇▇▇▇▇ ▇. ▇▇▇▇ | ||||
| Manager | ||||
| “Lessee” PRIMO WATER CORPORATION |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||||
| Chief Financial Officer | ||||
Signature Page to Master Equipment Lease Agreement