ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT (this "Agreement") is
made by and among Sun Northland, LLC, as assignee (the "Assignee"), ▇▇▇▇▇ Fargo
Bank Minnesota, National Association, Endeavor, L.L.C., Bank One Wisconsin, and
M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank (each an "Assignor," and collectively the
"Assignors"). Unless otherwise defined herein or the context otherwise requires,
terms used herein shall have the meanings provided in the Credit Agreement
(defined below).
WHEREAS, each of the the Assignors are party to a certain Credit Agreement
dated as of March 15, 1999 (together with all amendments, supplements,
restatements and other modifications from time to time made thereto, the "Credit
Agreement") among Northland Cranberries, Inc., a Wisconsin corporation (the
"Borrower"), each of the banks from time to time a party to the Credit Agreement
(herein collectively the "Banks" and each individually a "Bank"), and US
National Bank Association (formerly known as Firstar Bank, N.A.), as agent for
itself and the other Banks (the "Agent") pursuant to which each Assignor in its
capacity as a Bank made certain Revolving Credit Loans and issued and/or
participated in the issuance of certain L/Cs; and
WHEREAS, each Assignor desires to sell, assign and transfer, without
recourse to such Assignor, all of its Revolving Credit Loans and L/Cs
participations, together with all accrued and unpaid interest thereon and
certain other rights with respect thereto, to Assignee, as more specifically set
forth herein, and the Assignee desires to purchase such Revolving Credit Loans
and L/C participations and other rights and assume all obligations of the
Assignors thereunder.
NOW THEREFORE, in consideration of the premises and covenants contained
herein, and for other good and valuable consideration, receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Assignment. On the Settlement Date, in exchange for the consideration
set forth opposite such Assignor's name in the table set forth in paragraph 2
hereof, each Assignor will hereby sell, transfer and assign, without recourse
and without any representation or warranty whatsoever, except as specifically
set forth in this Agreement, to Assignee all of its Revolving Credit Loans and
L/C participations, together with any rights to accrued and unpaid interest
(including default interest) thereon, fees, indemnities or any other amounts due
and owing by the Borrower or its Subsidiaries to the Banks pursuant to the
Credit Agreement or any other Loan Document and any other rights such Assignor
may have against the Borrower or its Subsidiaries, their officers, directors,
shareholders or advisors or with respect to any Collateral pursuant to any Loan
Document or otherwise, except the right to reimbursement for legal fees incurred
through the Settlement Date, as more specifically set forth in paragraph 10
hereto, and Assignee will purchase and assume each of such Assignor's rights
thereunder.
2. Consideration. In exchange for the assignment and transfer of
Revolving Credit Loans and L/C participations and other rights set forth in
paragraph 1 hereof, Assignee, or its
permitted assigns pursuant to paragraph 8 hereto, shall deliver on the
Settlement Date to each of the Assignors the cash consideration set forth below
opposite such Assignor's name:
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Name of Bank Cash Consideration
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▇▇▇▇▇ Fargo Bank Minnesota, National Association $8,065,000
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Endeavor, L.L.C. $4,840,000
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Bank One Wisconsin $4,840,000
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M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank $3,225,000
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3. Settlement Procedures. The effective date of this Agreement (the
"Settlement Date") shall be the date upon which (i) this Agreement is executed
by all Assignors and by Assignee and (ii) Assignee, or its permitted assigns
pursuant to paragraph 8 hereto, has delivered the cash consideration (in
immediately available funds) to each of the Assignors in accordance with
paragraph 2 hereof. In no event shall the Settlement Date be later than 2
p.m.(central time) on November 5, 2001.
4. Certain Representations, Warranties and Consents by Assignors. Each
Assignor hereby represents and warrants that it is the legal and beneficial
owner of the Revolving Credit Loans and L/C participations and other rights
being assigned hereunder and that such interest is free and clear of any adverse
claim. Each Assignor hereby consents to (i) the assignments made hereunder by
each other Assignor and (ii) the assignments made to Assignee by the other Banks
not Assignors hereunder pursuant to separate assignment agreements, in each
case, notwithstanding anything to the contrary contained in Section 10.3 and
Section 10.14 of the Credit Agreement or in any other Loan Document. Assignee
hereby represents and warrants that the assignments contemplated herein have
been consented to by the other Banks not Assignors hereunder.
5. Further Assurances. Each of the undersigned, at any time and from time
to time upon the written request of any other of the undersigned, shall execute
and deliver such further documents and do such further acts and things as such
party may reasonably request in order to effect the purpose of this Agreement.
6. Counterparts: Governing Law. This Agreement may be executed in any
number of counterparts by the parties hereto, each of which counterparts shall
be deemed to be an original and all of which shall together constitute one and
the same agreement. Matters relating to this Agreement shall be governed by, and
construed in accordance with, the laws of the State of Wisconsin, without regard
to conflicts of law principles.
7. Assignee Acknowledgement. The Assignee acknowledges and confirms that
it has received a copy of the Credit Agreement and all other Loan Documents, and
all instruments and agreements referred to in the Credit Agreement and agrees to
be bound by such instruments and agreements. Assignee has made its own
investigation of the Borrower and has made its decision to enter into this
transaction without reliance on any statements, representations or opinions of
the Assignors with respect to the Borrower's' financial condition or performance
or any other matter relating to the Borrower.
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8. Assignments. Each of the Assignors hereby agree that Assignee may
assign any or all of its rights and obligations under this Agreement to any
third party, including, without limitation, to the Borrower, including on or
prior to the Settlement Date, without consent of the Assignors notwithstanding
Section 10.3 or Section 10.14 of the Credit Agreement or any other prohibition
on assignment contained in any Loan Document or any other agreement executed in
connection therewith.
9. Release. Each of the Assignors hereby agrees that, upon receipt of the
consideration set forth in paragraph 2 hereto and the reimbursement of the fees
and expenses under paragraph 10 hereto on the Settlement Date, it shall have no
rights or claims against the Borrower, any of its Subsidiaries or any of their
parent corporations, affiliates, insurers, indemnitors, successors, assigns,
advisors, shareholders, together with all present and former officers, employees
and directors (collectively the "Releasees") with respect to all claims,
demands, causes of action of any kind, nature or description, whether arising in
law or in equity which Assignors had had, or now has, or has made claim to have
against any Releasee arising from the transactions contemplated under the Credit
Agreement or any other Loan Document whether such claims, demands and causes of
action are matured or unmatured, liquidated or unliquidated or known or unknown,
and each Assignor hereby waives its right to ▇▇▇, make any claim or take any
action against any Releasee with respect thereto. The foregoing release
excludes, and does not in any way release or affect, any liability or obligation
of (a) Borrower to M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank under that certain guaranty dated
May 13, 1997 (as amended) executed by Borrower in favor of M&I Mid State Bank
and (b) any of the Releasees to M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank or its affiliates
under that certain Agreement dated as of August 25, 2000 between ▇▇▇▇▇-▇▇▇▇▇▇
Cranberry Co., ▇. ▇▇▇▇▇ Farms, Inc., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and M&I
Mid State Bank, all such rights being specifically retained by M&I ▇▇▇▇▇▇▇▇ &
Ilsley Bank against such Releasees.
10. Fees and Expenses. On the Settlement Date, the Assignee hereby agrees
to reimburse each Assignor for its (i) reasonable unreimbursed legal fees and
expenses incurred in connection with the Credit Agreement (provided that such
fees and expenses shall not significantly exceed the estimates set forth in
those certain letter agreements between each Assignor and Assignee describing
the basic terms of this Agreement) and (ii) reasonable legal fees and expenses
incurred in connection with the negotiation of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Settlement Date set forth above.
Assignee: SUN NORTHLAND, L.L.C.
By: /s/
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Its:
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Assignors: ▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/
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Its:
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ENDEAVOR, LLC
By: /s/
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Its:
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BANK ONE WISCONSIN
By: /s/
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Its:
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M&I ▇▇▇▇▇▇▇▇ & ILSLEY BANK
By: /s/
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Its:
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ACKNOWLEDGEMENT, CONSENT AND RELEASE
Northland Cranberries, Inc. hereby acknowledges the foregoing Assignment,
Assumption and Release Agreement and consents to the assignments and other
actions by the Assignors thereunder, notwithstanding any provisions of the
Credit Agreement to the contrary.
Northland Cranberries, Inc. hereby absolutely and unconditionally releases
and forever discharges the Assignors and any and all participants, parent
corporations, subsidiary, affiliated corporations, insurers, indemnitors,
successors and assigns, together with all of the present and former directors,
officers, agents and employees of any of the foregoing, from any and all claims,
demands or causes of actin of any kind, nature or description, whether arising
in law or equity or upon contract or tort or under any state or federal law or
otherwise, which Northland Cranberries, Inc. has had, or now has, or has made
claim to have against any such person or entity for or by reason of any act,
omission, matter, cause or thing whatsoever arising from the transactions
contemplated under the Loan Documents to and including the date of this
Acknowledgement, Consent and Release, whether such claims, demands and causes of
action are matured or unmatured, liquidated or unliquidated or known or unknown,
and Northland Cranberries, Inc. hereby waives its right to ▇▇▇, make any claim
or take any action against any Assignor with respect thereto.
November 6, 2001 NORTHLAND CRANBERRIES, INC.
By: /s/
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Its:
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