THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.13
AGREEMENT
THIS AGREEMENT entered into this 30th day of July 1997, by and between
AQUAPENN Spring Water Company, hereinafter referred to as "AQUAPENN", and
Seven Springs Water Company, hereinafter referred to as "Seven Springs",
WITNESSETH:
WHEREAS, Seven Springs is the owner and holder of a Suwannee River
Water Management District Water Use Permit No. 2-93-00093 (and any
subsequent modifications and renewals of the above referenced "Permit");
and
WHEREAS, AQUAPENN and Seven Springs are desirous of entering into this
Agreement whereby Seven Springs agrees to deliver and sell spring water
under the above referenced Permit to AQUAPENN.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants contained herein, the sum of Ten Dollars, each to the other paid,
and other good and valuable considerations, the parties agree as follows:
1. TERM: The term of this Agreement shall be Ninety-Nine (99) years
from the effective date.
2. NATURE AND SCOPE OF REAL ESTATE SALE: Seven Springs shall sell to
AQUAPENN the front 40 acres which are presently zoned and permitted for a
spring water bottling plant, said property depicted in Exhibit "A",
attached hereto and made a part hereof by reference. The standards, terms
and conditions shall be in accordance with the Florida Bar-Florida Board of
Realtors contract, where applicable. The sales price shall be $7,500 per
acre for a total purchase price of $300,000.00 and shall be paid in cash,
adjusted by prorations. The Seller, in addition, grants to AQUAPENN, its
successors or assigns, such ingress, egress and public utility and such
other easements as are necessary to carry out the terms and conditions of
this Agreement.
3. OPTION TO PURCHASE ADDITIONAL REAL ESTATE: Seven Springs shall
deliver to AQUAPENN in recordable form an option to purchase the adjacent
Northerly 40 acres for $7,500 per acre, said purchase price to be paid in
cash, adjusted by prorations. Said option to be delivered simultaneously
with the closing of the initial forty acres and shall run for a period of
ten years. This option shall be
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
assignable but shall be required to be for a use of the land which is a
part of or associated with the spring water operation contained in the
initial 40 acres.
4. AGREEMENT FOR CONSTRUCTION OF SPRING WATER BOTTLING PLANT: Within
sixty (60) days of the closing of the purchase of the front 40 acres
described in paragraph 2 AQUAPENN will begin construction of a spring water
bottling plant having a construction cost of plant, improvements and
equipment of not less than [----------] and an operational capacity of
bottling no less than [-----] gallons a day. Said construction will be
completed and the plant operational within [----------] of the date of
closing. In the event AQUAPENN does not begin such construction within
sixty (60) days from the date of closing or fails to pursue said
construction with reasonable diligence once begun, Seven Springs
[--------------------------------------------------------------------------
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- --------]. In addition to the spring water bottling facility, AQUAPENN
will, at its sole cost and expense, provide all pumps, pipes, valves,
meters, etc. necessary for the spring water extraction and for any other
monitoring required by Suwannee River Water Management or other agency and
all operational and maintenance costs associated with said equipment.
5. MINIMUM GUARANTEE PAYMENTS: AQUAPENN agrees to purchase from Seven
Springs at a cost of [-------------] per gallon, payable on a monthly basis
in arrears, all water pumped, extracted, processed or sold by AQUAPENN.
Said water shall be extracted from the spring sources currently covered by
the Suwannee River Water Management water use permit more specifically
described in paragraph 7 and be subject to the minimum and maximum amounts
set forth below. In the second year AQUAPENN shall pay a minimum annual
payment of [------], in the third year and all subsequent years a minimum
annual payment of [------]. There will be no minimum payment in the first
year. For this purpose the first year shall begin 12 months from the date
of closing or when the plant first becomes operational, whichever first
occurs. Beginning the fifth year and continuing each subsequent year,
should any monthly payment by AQUAPENN be less than [-----]
[----------------------] Seven Springs Water Company will have the right to
sell spring water to others on a nonexclusive basis for the ensuing sixty
(60) day period and in addition will have the right to the use of and
access to AQUAPENN's bulk spring water loading facilities on a 24-hour
basis. AQUAPENN will construct and maintain its bulk water loading facility
in such a manner that personnel from AQUAPENN or Seven Springs will not be
required and the bulk spring water customer's driver can reasonably operate
the facility by himself. So long as AQUAPENN's bulk loading facility
functions in such a manner AQUAPENN will have no staffing responsibilities
for users of the bulk loading facility. In no event shall Seven Springs
sell
2
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
water in quantities which would prohibit AQUAPENN from meeting its monthly
minimum. In exchange for said use, AQUAPENN will be paid the sum of
[--------------------------] per gallon for spring water not consumed by
AQUAPENN and sold to others by Seven Springs. AQUAPENN will not be
responsible for the [-------------] fee for spring water acquired by users
of the bulk facility for which AQUAPENN receives the [-------------------]
fee.
The parties acknowledge that AQUAPENN will have a domestic water well
for purposes of rinsing bottles or other containers, cleaning floors,
sprinkler systems and any other domestic use associated with the operation
of the facility. AQUAPENN will be under no obligation to pay a fee to Seven
Springs for this usage but AQUAPENN specifically agrees that only water
purchased from Seven Springs will be used for bottling, distribution or
sale.
6. PRICE PER GALLON ADJUSTMENT: The per gallon price will be adjusted
by [-----------------] of the change in the Consumer Price Index (CPI) or
the equivalent every [------] years. The parties acknowledge that in the
opinion of some the CPI as it is currently constituted overstates the true
overall rate of inflation and it has been proposed that either the current
method of calculating the CPI be changed or it be discontinued and replaced
with a new index. Should either occur, the adjustments referred to will be
made so as to conform as nearly as possible to [-----------------] of the
change in the CPI as currently constituted. An identical CPI increase shall
be applicable to the [--------------------] provided in Paragraph 5 and 11.
7. REPRESENTATION AND WARRANTIES: Seven Springs hereby represents that
it is the owner and holder of an unencumbered Suwannee River Water
Management District Water Use Permit No. 2-93-00093, which permit allows
extraction of 1,152,000.00 gallons per day annual average subject to a
maximum daily amount of 1,728,000.00 gallons. Seven Springs shall make all
necessary applications for renewals of the permit and shall diligently
pursue said renewal applications. Seven Springs shall not jeopardize any
existing or renewed permit. One of the measures used in determining the
amount of gallons available under a water use permit is the number of acres
covered by the application. To this end AQUAPENN agrees that any acreage it
owns or controls in the area may be included in any application for a water
use permit should the applicable regulations allow it an be subject to the
minimum/maximum amount set forth below.
8. RIGHT OF FIRST REFUSAL: AQUAPENN will be granted a reasonable right
of first refusal in the event Seven Springs elects to sell its rights under
this Agreement, or the spring water rights or spring water permits.
3
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
9. COVENANT NOT TO ADVERSELY AFFECT SPRING WATER QUALITY: Seven
Springs shall obtain a written agreement from Barbara Wray Suggs that any
future development of her lands shall not adversely affect the quality of
spring water to be purchased by AQUAPENN to the extent that it does not
meet the quality guidelines established by the EPA or Food and Drug
Administration or the International Bottled Water Association. This
covenant shall not be interpreted to prohibit the construction of
commercial or residential facilities provided same does not impact the
spring water quality to the extent that it does not meet the before
mentioned quality guidelines.
10. QUALITY OF SPRING WATER SUPPLY: All obligations of AQUAPENN shall
be suspended during any period or periods that the spring water quality at
the source does not meet guidelines for drinking spring water established
by the EPA or Food and Drug Administration or International Bottled Water
Association. AQUAPENN will have the right but not the obligation to attempt
to cure quality defects and Seven Springs agrees to assist AQUAPENN in its
efforts to cure such defects. In the event said period of non-compliance
exceeds 15 successive days or 60 cumulative days in a given calendar year
then AQUAPENN may elect to bring or acquire bulk spring water off-site to
supply the plant so long as such condition exists and for 30 days
thereafter or terminate this Agreement and have no further liability
hereunder.
11. GOVERNMENTAL IMPOSITIONS: AQUAPENN will pay to the proper
governmental authority all taxes, if any, due and owing upon any sums
payable to Seven Springs, except income, estate or gift taxes. AQUAPENN
will pay to or on behalf of Seven Springs to the proper governmental
authority all taxes, if any, imposed upon water extracted and delivered to
AQUAPENN or processed by AQUAPENN, such as a severance or consumptive use
tax. In the event said taxes exceed the sum of [-------------------] per
gallon, then and in that event AQUAPENN may terminate this Agreement and
shall have no further liability hereunder.
12. CONTINGENCIES: AQUAPENN will have six months from the date of this
agreement to obtain approval of the Board of Directors of AQUAPENN for this
transaction; to complete all testing and analysis to determine the
necessary quality of the spring water; the suitability of the plant site;
and to obtain all necessary permits for the construction of the spring
water bottling plant and related approvals for removal of the spring water.
On or before the six-month period, AQUAPENN shall satisfy or notify Seven
Springs in writing that it has waived all contingencies, at which time the
closing referenced in Paragraph 2 above shall occur.
13. DESTRUCTION OF SPRING WATER BOTTLING PLANT: In the event the
bottling plant is destroyed in whole or in part by a casualty
4
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
to the extent that operation of the bottling plant must be suspended, then,
and in that event, AQUAPENN may elect to terminate this Agreement or to
repair or restore the plant and shall notify Seven Springs of its election
within 30 days of the casualty. In the event AQUAPENN elects to rebuild the
plant, the minimum payments will be suspended during the reconstruction
period. If AQUAPENN elects to rebuild, it shall begin the rebuilding within
30 days of notifying Seven Springs of its election to do so and diligently
pursue said construction. In the event AQUAPENN elects not to rebuild, it
will grant a right of first refusal to Seven Springs and will agree not to
build another bottling facility nor purchase water from any source within
100 miles of Ginnie Springs within the next seven (7) years.
14. ELECTION TO TERMINATE: Notwithstanding anything contained herein
to the contrary, AQUAPENN may elect to terminate this Agreement at any
time, for any reason, and shall be liable to Seven Springs for payment of a
sum equal to 6 months minimum guarantee from the date of termination.
15. RIGHT OF ENTRY: Seven Springs hereby grants to AQUAPENN and its
authorized agents the right to freely enter upon the lands herein described
for the purpose of inspection and testing the lands and the spring water.
16. OTHER AGREEMENTS: This Agreement constitutes the entire agreement
between the parties, and any changes, amendments or modifications hereof
shall be null and void unless same are reduced to writing and signed by the
parties hereto.
17. PERSONS BOUND: The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective heirs, executors,
administrators, successors and assigns of the parties hereto. Whenever
used, the singular number shall include the plural, the singular, and the
use of any gender shall include all genders. Other party may assign their
rights in the Agreement.
18. ATTORNEYS' FEES, COSTS: In the event of any litigation arising out
of this Agreement, the prevailing party shall be entitled to recover from
the non-prevailing party all expenses incurred by the prevailing party in
connection with said litigation including a reasonable attorney's fee.
19. SURVIVAL OF COVENANTS: Any of the representations, warranties,
covenants, and agreements of the parties, as well as any rights and
benefits of the parties pertaining to a period of time following the
closing of the transactions contemplated hereby, shall survive the closing
and shall not be merged therein.
5
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
20. NOTICES: Any notice required or permitted to be delivered
hereunder shall be deemed received when sent by United States mail, postage
prepaid, certified mail, return receipt requested, or by express courier,
addressed to Seller or Buyer, as the case may be, at the address set forth
below:
6
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Seven Springs Water Company
c/o Ginnie Springs, Inc. with copy to W. Langston Holland, Attorney at Law
7300 N.E. Ginnie Springs Road 125 28th Street N., St. Petersburg, FL 33713
High Springs, FL 32643
AQUAPENN Spring Water Company
One AquaPenn Drive
P.O. Box 938
Milesburg, PA 16853
With copy to:
McQuaide, Blasko, Schwartz
811 University Drive
State College, PA 16801
Attn: Thomas Schwartz, Esquire
Daniel E. Bright, Esquire
(814) 238-4926
21. DESCRIPTIVE HEADINGS: The descriptive headings used herein are for
convenience only and are not intended to necessarily refer to the matter in
sections which precede or follow them, and have no effect whatsoever in
determining the rights or obligations of the parties.
22. STOCK OPTION: Simultaneously with the closing AQUAPENN shall grant
to Seven Springs Water Company the option during a [------] period
commencing with the date of closing to purchase [----] shares of AQUAPENN's
common stock as it currently exists at [----------------------------].
23. COVENANTS RUNNING WITH THE LAND: The deed to the property
described in paragraphs 2 and 3 shall contain covenants running with the
land as set forth in the attached Exhibit B.
24. RIGHT OF FIRST REFUSAL: Anything to the contrary in this agreement
notwithstanding, should AQUAPENN terminate this agreement for any reason,
Seven Springs will have the right of first refusal to purchase any real
estate described in paragraphs 2 and 3 which was purchased by AQUAPENN
together with the improvements and fixtures and easements attached to or
used in relation to the transporting, processing or bottling of water. The
terms of such right of first refusal are set forth in attached Exhibit "C".
This right of first refusal will not apply unless and until this agreement
is terminated and will expire five (5) years after the date of termination.
25. SURVIVAL OF OBLIGATIONS: Anything to the contrary in this
agreement notwithstanding, should AQUAPENN terminate this agreement for any
reason, all obligations incurred by AQUAPENN prior to such termination,
including but not limited to water charges (including minimums), and
governmental impositions shall survive such termination.
7
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
26. [--------------------------------------------]: Anything to the
contrary in this agreement notwithstanding, AQUAPENN agrees that any and
all water purchased, processed or sold at its water bottling plant to be
constructed pursuant to paragraph 4 or
[--------------------------------------------------------------------------
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- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------]. This provision shall survive the termination of this
agreement.
27. INSPECTION MEASUREMENT AND CONFIRMATION: AQUAPENN will provide
copies of its records certified as correct by a company officer covering
all water sales and shipments no less than twice monthly, allow Seven
Springs full access to its pumping facilities and the right to install
measurement devices so that Seven Springs can independently measure the
volume of water extracted. Seven Springs will also have reasonable access
to AQUAPENN's water distribution facilities for the purpose of
independently measuring the volume of water sold or distributed.
28. ADJUSTMENTS TO DESCRIPTIONS AND PURCHASE PRICE OF PROPERTIES
COVERED IN PARAGRAPHS 2 AND 3: The conveyances covered by paragraphs 2 and
3 will exclude the east sixty (60) feet of the described property and
should such exclusion cause the total area of either parcel conveyed to be
less than forty (40) acres, AQUAPENN will receive a credit at closing equal
to $7500 times the number of acres conveyed which is less than forty (40).
For example, should the total area of one parcel conveyed equal 39-1/2
acres, the credit will equal $3750.
Seven Springs Water Company AQUAPENN Spring Water Company
By:/s/ Barbara Wray Suggs By:/s/ Edward J. Lauth, III
------------------------- ----------------------------
As President As President
Attest:/s/ Mark D. Wray Attest:/s/ Dennis B. Nisewonger
--------------------- ------------------------
As Secretary As Secretary
8
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT "A"
THIS QUIT-CLAIM DEED, executed this 31st day of March, 1995, by
MARK D. WRAY, RHONDA WRAY JOHNSON, and RISA WRAY KLEMANS c/o 101 N.E.
Ginnie Springs Blvd., High Springs, FL 32643 First Party, to
SEVEN SPRINGS WATER COMPANY
whose address is 125 28th Street, North, St. Petersburg, FL 33713 and whose
Tax I.D. Number is 59-3243964
(Wherever used herein the terms "First Party" and "Second Party" shall
include singular and plural, heirs, legal representatives, and assigns
of individuals, and the successors and assigns of corporations,
wherever the context so admits or requires.)
WITNESSETH, That the said First Party, for and in consideration of the
sum of Ten and No/100 Dollars ($10.00), in hand paid by the said Second
Party, the receipt (illegible text) hereby acknowledged, does hereby
remise, release and quit claim to the said Second Party forever, all the
right, title, interest,claim and demand which the said first party has in
and to the following described lot, piece or parcel of land, situate, lying
and being in the County of Gilchrist, State of Florida, to wit:
Commence at the SW corner of the NW 1/4 of SW 1/4 of Section 2, TBE,
R16E for a point of reference. Thence run along the South line of said
NW 1/4 of SW 1/4, M88^43'51"E, 18.00 feet to the point of beginning.
Thence run 801^06'24"E, 158.86 feet to the North R/W line of County
Road No. C-340, said point being on a curve; thence run along said R/W
line on curve being concave Northerly (having a central angle of
11^09'22" and a radius of 5679.58 feet) Northeasterly an arc distance
of 1105.88 feet to point of tangency; thence continue along said R/W
line N71^22'11"E, 239.93 feet to the East line of said NW 1/4 of SW
1/4; thence run along said East line, N01^00'16"W, 1155.86 feet;
thence run SSE^43'54"W, 1310.47 feet; thence run 801^06'24"E, 1296.17
feet to the point of beginning, all lying and being in Gilchrist
County, Florida.
THIS IS NOT HOMESTEAD PROPERTY
Tax Parcel # 02-08-16-0000-0003-0010
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
TO HAVE AND TO HOLD the same together with all and singular the
appurtenances thereunto belonging or in anywise appertaining, and all the
estate, right, title, interest, lien, equity and claim whatsoever of the
said First Party, either in law or equity and claim whatsoever of the said
First Party, either in law or equity, to the only proper use, benefit and
behalf of the said Second Party forever.
IN WITNESS WHEREOF, the said First Party has signed and sealed these
presents the day and year first above written.
Signed, sealed and delivered in our presence as witnesses:
/s/ Lynn R. Holyfield /s/ Mark D. Wray L.S.
- -------------------------- --------------------------
Lynn R. Holyfield MARK D. WRAY
/s/ Stephen A. Rappenecker /s/ Rhonda W. Johnson L.S.
- -------------------------- --------------------------
Stephen A. Rappenecker RHONDA WRAY JOHNSON
/s/ Risa Wray Klemens L.S.
--------------------------
RISA WRAY KLEMANS
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT "B"
COVENANT RUNNING WITH THE LAND: Grantee agrees and covenants that the land
and any improvements to it shall be used solely for the bottling,
processing and distribution of potable water and incidental uses associated
with same.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT "C"
RIGHT OF FIRST REFUSAL: Before AQUAPENN may sell or transfer the property
described in either paragraphs 2 or 3 of this agreement or the improvements
on it, it must first offer it to Seven Springs by giving Seven Springs
written notice of the price, terms and conditions upon which AQUAPENN
proposes to sell or transfer the property. Seven Springs will have 30 days
from receipt of such written notice within in which to notify AQUAPENN that
Seven Springs agrees to purchase the property on the same terms and
conditions stated in the notice and if it does the sale shall be closed 30
days after of such notification. If Seven Springs does not accept the offer
in writing within 30 days after receipt of it AQUAPENN may sell the
property to any other purchaser at and only at the same price, terms and
conditions stated in the notice to Seven Springs provided that such sale
shall be closed within 160 days after the date of the first notice to Seven
Springs. If AQUAPENN has not completed the sale or transfer within said
160-day period, the right of AQUAPENN to sell or transfer the property free
from the right of first refusal held by Seven Springs will terminate and
the provisions of this agreement will apply to any subsequent proposed sale
or transfer of the property by AQUAPENN. The term "transfer" includes but
is not limited to a lease agreement.