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EXHIBIT 10.1
AGRICULTURAL ASSET PURCHASE AGREEMENT
THIS
AGREEMENT is made and entered into as of this _____ day of
_________, 2004, by and between NORTHLAND CRANBERRIES, INC., a
Wisconsin corporation, with principal offices at 2930 Industrial
Street, Wisconsin Rapids, WI 54495-3237 (“Seller”) and
___________________, a ________________, with principal offices at
_____________________________________________
(“Buyer”).
WITNESSETH:
WHEREAS
, Seller has entered into an Option Agreement dated as of September
___, 2004 (the “Option Agreement’) with Ocean Spray
Cranberries, Inc., a Delaware corporation (“Optionee”),
pursuant to which Seller has granted Optionee an option to purchase
certain Agricultural Assets more particularly described in the
Option Agreement;
WHEREAS
, Buyer desires hereby to exercise the right granted under the
Option Agreement to purchase Seller’s interest in a certain
cranberry marsh known as the “______________Cranberry
Marsh,” which is located in the Township of____________,
__________ County, Wisconsin (the “Marsh
Property”);
WHEREAS
, Buyer also desires to purchase Seller’s interest in certain
personal property (the “Personal Property”) more
specifically described herein and sometimes referred to,
collectively with the Marsh Property and the Order described below,
as the “Property;” and
WHEREAS
, Seller desires to sell to Buyer its interest in the
Property.
NOW,
THEREFORE , in consideration of the mutual promises of the
parties and other good and valuable consideration, it is agreed
between the parties as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
Buyer hereby
exercises the right granted under the Option Agreement to acquire
the Property from Seller. As a result of the foregoing exercise,
Seller agrees to sell, and Buyer agrees to purchase, the following
described assets of Seller, all of which together shall constitute
the Property:
A.
Seller’s real estate described on Exhibit A attached
hereto and made a part hereof, 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 Exhibit B attached hereto and
made a part hereof, the same being acknowledged and agreed to
constitute the Personal Property.
C.
The Federal Cranberry Marketing Order (the “Order”)
applicable to the Marsh Property.
ARTICLE II
TERMS OF PAYMENT
The purchase
price for the Property (the “Purchase Price”) shall be
____________________________ Dollars ($________) and shall be paid
by wire transfer in cash at the closing of this transaction in
accordance with the terms and conditions of the Option
Agreement.
ARTICLE III
CLOSING
A.
The closing of this transaction shall be on or before sixty (60)
days after the date hereof, but in no event prior to December 1,
2004, 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 special warranty deeds in customary form
conveying the Marsh Property free and clear of all liens and
encumbrances, excepting Permitted Liens, together with all rights
and appurtenances of Seller to any and all agreements or water
rights to the real estate. 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
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 set forth on the Seller Disclosure Statement (as defined
below), 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.
C.
Seller further agrees to execute 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 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.
Notwithstanding anything to the contrary contained in this
Agreement, it is understood and agreed that the obligations of
Seller to consummate and effect this Agreement and the transactions
contemplated hereby shall be subject to, at or prior to closing,
Seller having obtained in accordance with applicable law any
requisite consent, approval, and authorization of the holders of
its securities (“Company Shareholder Approval”) to
consummate the transactions contemplated by this
Agreement.
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G.
Notwithstanding anything to the contrary contained in this
Agreement, it is understood and agreed that the obligations of
Buyer to consummate and effect this Agreement and the transactions
contemplated hereby shall be subject to, at or prior to closing,
Buyer’s reasonable satisfaction with the form and substance
of the Seller Disclosure Schedules (as defined below). Buyer shall
have until 5:00 p.m. (Central Standard time) on the tenth (10th)
day following Buyer’s receipt of the Seller Disclosure
Schedules to provide written notice to Seller stating that it is
not reasonably satisfied with the form and substance of the Seller
Disclosure Schedules and setting forth in reasonable detail the
reasons why it is not reasonably satisfied and the changes to the
Seller Disclosure Schedules that would be necessary to make Buyer
reasonably satisfied with the form and substance of the Seller
Disclosure Schedules. Buyer’s failure to timely provide such
notice shall be deemed to constitute Buyer’s irrevocable
agreement that it accepts the Seller Disclosure Schedules as
initially provided to Buyer. If Buyer timely provides such notice,
Seller shall have five (5) business days to revise the Seller
Disclosure Schedules to Buyer’s reasonable satisfaction. If
Company fails to revise the Seller Disclosure Schedules within (5)
business days of Buyer’s notice to Buyer’s reasonable
satisfaction (it being understood that Seller shall not have an
obligation to make any revisions to the Seller Disclosure
Schedules), Buyer may elect to (i) accept the Seller
Disclosure Schedules provided by Seller (as modified, if at all, by
Seller) and proceed with the transaction, or (ii) terminate
this Agreement by providing written notice to Seller. Buyer’s
failure to provide written notice to Seller of its desire to
terminate this Agreement within five (5) business days after being
informed of Seller’s decision shall be deemed an election of
option (i) above. If Buyer elects to terminate this Agreement
pursuant to this paragraph, the parties shall have no further
obligations to one another under this Agreement.
ARTICLE IV
PURCHASE PRICE ALLOCATION
Intentionally Omitted.
ARTICLE V
TITLE DOCUMENTS
Seller shall
furnish and deliver to Buyer for examination within twenty (20)
days of 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 ten (10) 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 ten (10) 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 ten (10) 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 split equally between the Seller and Buyer.
Any transfer fees payable in connection with the conveyances
contemplated by this Agreement shall be split equally between the
Seller and Buyer.
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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
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