AGRICULTURAL ASSET PURCHASE
AGREEMENT
THIS AGREEMENT is made and entered into as of this 14
th day of September, 2005, by and between NORTHLAND
CRANBERRIES, INC., a Wisconsin corporation (“Seller”)
and FIFIELD CRANBERRIES, LLC, a Wisconsin limited liability company
(“Buyer”).
WITNESSETH:
WHEREAS , Seller is the owner of a certain cranberry marsh
consisting of approximately 2,470 acres and certain associated
property located in Price County, Wisconsin (the “Marsh
Property”);
WHEREAS , Buyer desires to purchase, and Seller desires to
sell, the Marsh Property, all on the terms and conditions set forth
in this Agreement.
NOW, THEREFORE , in consideration of the mutual promises of
the parties and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, is agreed between
the parties as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
Subject
to the terms and conditions of this Agreement, on the Closing Date
(as hereinafter defined), Seller shall sell, convey, transfer and
assign to Buyer, and Buyer shall purchase, acquire and accept, all
of Seller’s right, title and interest in the following
described assets of Seller, all of which together shall constitute
the Property:
A.
Seller’s real estate described on Schedule 1.A. ,
together with all buildings, improvements, dikes, dams, ditches and
fixtures situated thereon and all rights and appurtenances thereto,
including without limitation all mineral, timber, hunting, water
and flowage rights of Seller related thereto, the same being
acknowledged and agreed to constitute the Marsh
Property;
B.
Seller’s personal property used exclusively in connection
with operation of the Marsh Property, which personal property is
more particularly described on Schedule 1.B. , together with
all cranberry vines, beds, bulkheads, irrigations systems and
spares parts owned by Seller and located on the Marsh Property, the
same being acknowledged and agreed to constitute the Personal
Property;
C.
All growing crops located on the Marsh Property;
D.
All rights of Seller under the Multi-Peril Crop Insurance Policy
related to the Marsh Property described on Schedule 1.D.
(the “MPCI Policy”); and
E.
All rights in, to and under any Federal Cranberry Marketing Order
(the “Order”) applicable to the Marsh
Property.
Except
as otherwise set forth in this Article I, Seller shall not sell,
convey, transfer or assign to Buyer, and Buyer shall not purchase,
acquire or accept, any other property of Seller, including without
limitation any cash, accounts receivable, inventories, corporate
books and records, contracts, investments, computers, software,
refunds, deposits and any unused inventory of pesticides,
herbicides, fertilizers and other chemicals provided by Wildhawk,
Inc. On the Closing Date, Buyer shall assume and agree to perform
all of Seller’s liabilities arising from and after the
Closing Date under (i) the MPCI Policy, including but not limited
to the timely payment of any premiums due and payable after the
Closing Date; and (ii) the Permitted Liens (as defined herein)
(collectively the “Assumed Liabilities”). Except as
expressly set forth in herein, Buyer is not assuming any
liabilities of Seller and all such liabilities shall remain the
sole responsibility of Seller.
ARTICLE II
TERMS OF PAYMENT
The
purchase price for the Property (the “Purchase Price”)
shall be Five Million Two Hundred Thousand Dollars ($5,200,000) and
shall be paid by wire transfer in cash at the closing of this
transaction, plus or minus, as the case may be, the net amount of
any prorations determined as of the Closing Date in accordance with
this Agreement.
ARTICLE III
CLOSING
A.
The closing of this transaction shall occur on September 20, 2005,
or such other date as the parties hereto may agree in writing (the
“Closing Date”), and shall occur at the offices of
Boles-Wallner Abstract & Title, Inc., 214 West Grand Avenue,
Wisconsin Rapids, WI 54495.
B.
Seller agrees to execute and deliver at closing a special warranty
deed in customary form conveying the Marsh Property free and clear
of all liens and encumbrances, excepting Permitted Liens. For
purposes hereof, “Permitted Liens” shall mean
(i) liens for taxes not yet due and payable; (ii) zoning,
building codes and other land use laws and ordinances regulating
the use or occupancy of the Marsh Property; (iii) easements,
covenants, conditions, restrictions and other similar matters
affecting title to the Marsh Property and other title defects which
do not or would not reasonably be expected to materially impair the
use or occupancy of the Marsh Property; (iv) liens and encumbrances
set forth on the Schedule 3.B. , and (v) all matters
which would be disclosed by an accurate survey of the Marsh
Property which do not or would not reasonably be expected to
materially impair the use or occupancy of the Marsh
Property.
2
C.
Seller further agrees to execute and deliver at closing a bill of
sale assigning and conveying the Personal Property free and clear
of all liens and encumbrances, excepting Permitted
Liens.
D.
Seller and Buyer agree that Buyer is purchasing only assets from
Seller and that Buyer shall not be responsible for any of
Seller’s business debts or liabilities nor for any wages or
benefits to Seller’s employees.
E.
All expenses associated with the Marsh Property, including, without
limitation, expenses for electricity, gas, water, sewer, real
property taxes, security services, Association dues and fees, and
such other items that are customarily prorated in transactions of
this nature shall be ratably prorated between Buyer and the Seller
as of the Closing Date in accordance with local custom.
F.
Buyer and Seller
shall each execute and deliver at closing a Crop Purchase Agreement
in the form of Exhibit A hereto.
G.
Buyer agrees to execute and deliver at closing an such undertakings
and instruments of assumption as are reasonably sufficient in the
opinion of Seller to evidence the assumption by Buyer of the
Assumed Liabilities.
H.
Buyer shall be reimburse Seller at the closing of this transaction
for any premiums related to the MPCI Policy which have been paid by
Seller prior to the Closing Date.
ARTICLE IV
PURCHASE PRICE ALLOCATION
Buyer
and Seller agree to allocate the Purchase Price among the various
assets comprising the Property for all purposes, including
financial accounting and tax purposes, as set forth in Schedule
4 hereof.
ARTICLE V
TITLE DOCUMENTS
Seller
shall furnish and deliver to Buyer for examination not more than
ten (10) days following the date of this Agreement a commitment for
an owner’s policy of title insurance, in an amount equal to
the Purchase Price, written by a title insurance company licensed
by the State of Wisconsin, showing title as called for by this
Agreement. Any objections to the title must be raised by Buyer in
writing within five (5) days from delivery of the title insurance
commitment, following which Seller shall have five (5) days in
which to elect in writing whether to cure such objections to
Buyer’s reasonable satisfaction. In the event Seller does not
elect to cure such objections or affirmatively elects not to cure
the same, Buyer shall, within five (5) days after the earlier of
(a) receipt of Seller’s written election not to cure such
objections or (b) expiration of the period within which Seller is
entitled to make the foregoing election (in either case, the
“Seller’s Election Deadline”), have the option,
exercisable by written notice to Seller, either to (x) terminate
this Agreement, or (y) proceed to closing, taking title to the
Property subject to the matters that Seller has elected not to
cure. The foregoing election by Buyer must be delivered to Seller
within five (5) days after Seller’s Election Deadline. The
cost of the title insurance commitment and the title insurance
policy issued with respect thereto, inclusive of full extended
coverage (other than the survey exception), and inclusive of any
endorsements issued with respect to title exceptions that do not
constitute Permitted Liens, but exclusive of any Buyer-requested
endorsements, shall be paid by Seller. Any transfer fees payable in
connection with the conveyances contemplated by this Agreement
shall be split equally between the Seller and Buyer.
3
ARTICLE VI
BROKER’S FEE
Each
of the parties hereto covenants and agrees to pay any broker or
finder fees or commissions, if any, payable to any broker, finder,
or similar agent retained by it in connection with this
transaction.
ARTICLE VII
COVENANTS AND REPRESENTATIONS OF
SELLER
A.
Seller agrees it will continue to maintain adequate fire and hazard
insurance with customary coverage endorsements consistent with its
historic practices on all buildings and improvements, including the
Personal Property, on the Marsh Property until the closing of this
transaction.
B.
Seller shall bear the risk of loss of any real or personal property
subject to this Agreement occurring between the date hereof and the
closing date unless caused by the negligence or intentional act or
omission of Buyer or any of Buyer’s agents, employees, or
contractors, and shall promptly notify Buyer that such damage or
destruction has occurred and the estimated extent thereof. In the
event that any of the buildings, improvements, machinery and
equipment shall be materially damaged or de