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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
HINES NURSERIES, INC.,
KW MOHAWK VALLEY LLC,
621 EAST MAPLE LLC,
DANVILLE PA LLC,
KW UTICA LLC,
KW NEWARK LLC AND
KW DANVILLE LLC
DATED AS OF
JANUARY 9, 2007
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "AGREEMENT") is made and
entered into as of January 9, 2007 (the "EFFECTIVE DATE"), by and
among Hines
Nurseries, Inc., a California corporation ("SELLER"), and KW Mohawk
Valley LLC
("MOHAWK"), 621 East Maple LLC ("621"), Danville PA LLC ("PA"), KW
Utica LLC
("UTICA"), KW Newark LLC ("NEWARK") and KW Danville LLC
("DANVILLE"), each a New
York limited liability company. Mohawk, 621, PA, Utica, Newark and
Danville are
collectively referred to herein as "BUYER."
RECITALS
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A. Seller owns certain real property located in the Village of
Newark, County of Wayne, State of New York, and more particularly
described in
EXHIBIT A attached hereto and incorporated herein by this reference
(the "NEWARK
PROPERTY").
B. Seller owns certain real property located in the City of
Utica, County of Oneida, State of New York, and more particularly
described in
EXHIBIT B attached hereto and incorporated herein by this reference
(the "UTICA
PROPERTY," and together with the Newark Property, the "FEE
PROPERTIES").
C. Seller is currently a hold over tenant under that certain
Lease Agreement (the "PRIOR LEASE") dated May 6, 1981, as amended
with PPL
Generation, LLC, as landlord ("PPL"), for the premises located in
Danville,
Pennsylvania and more particularly described in the Prior Lease
(the "LEASED
PROPERTY," and collectively with the Fee Properties, the
"PROPERTY").
D. Subject to the terms and conditions set forth in this
Agreement, Buyer desires to purchase from Seller, and Seller
desires to sell,
assign, transfer and deliver to Buyer, all of Seller's right, title
and interest
in and to (i) the Newark Property; (ii) the Utica Property; and
(iii) the
potting machinery, office furnishings and equipment, inventory,
racks, other
assets and greenhouses, as further described below.
NOW, THEREFORE, in consideration of the mutual promises set
forth herein and intending to be bound hereby, the parties hereby
agree as
follows:
AGREEMENT
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1. PURCHASE AND SALE OF ASSETS AT THE CLOSING.
1.1 PURCHASED ASSETS. Subject to the terms and conditions set
forth in this Agreement, at the Closing (as defined herein), Buyer
agrees to
purchase from Seller, and Seller agrees to sell, assign, transfer
and deliver to
Buyer all of Seller's right, title and interest in and to (i) the
potting
machinery, office furnishings and office equipment, inventory,
racks, other
assets and greenhouses described below and listed on Schedules
1.1(a), 1.1(b),
1.1(c), 1.1(d), 1.1(e) and 1.1(f) hereto (collectively, the
"OPERATING ASSETS")
as follows: (A) those Operating Assets located at the Newark
Property shall be
purchased by Newark; (B) those Operating Assets located at the
Utica Property
shall be purchased by Utica; and (C) those Operating Assets located
at the
Leased Property shall be purchased by Danville; (ii) the Newark
Property, which
shall be purchased by 621; and (iii) the Utica Property, which
shall be
purchased by Mohawk. The Operating Assets and the Fee Properties
shall be
collectively referred to herein as the "PURCHASED ASSETS."
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(a) POTTING MACHINERY. The potting machinery listed
and described on SCHEDULE 1.1(A) (the "POTTING Machinery").
(b) OFFICE FURNISHINGS AND OFFICE EQUIPMENT. The
office furnishings and office equipment listed and described on
SCHEDULE 1.1(B)
(the "OFFICE EQUIPMENT").
(c) INVENTORY. Subject to the next sentence, all
inventory items and related materials and supplies (each an
"INVENTORY ITEM")
listed and described on SCHEDULE 1.1(C) and located on the Property
at the
Closing (the "INVENTORY"). Buyer acknowledges that Inventory Items
and other
products may be sold by Seller for Seller's benefit in the ordinary
course of
Seller's business up to and through the close of business on the
Closing Date
(defined below) and that neither such items which have bee
