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"), LaSalle Bank
National Association, St. ▇▇▇▇▇▇▇ Bank, F.S.B., ARK CLO 2000-1 Limited, and U.S.
Bank National Association, (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 prior to the
date hereof, 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 U.S. Bank National 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 of the Assignors desires to sell, assign and transfer some or
all (as applicable) of its Revolving Credit Loans and L/C 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.
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 hereto7 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 of the Assignors will hereby sell, transfer and assign to Assignee
(i) the percentage set forth opposite such Assignor's name in the table below
(the "Stated Percentage") of its Revolving Credit Loans and L/C participations
outstanding under the Credit Agreement as of the Settlement Date, (ii) the
Stated Percentage of any rights to accrued and unpaid interest (including
default interest) thereon, fees, expenses, indemnities or any other amounts due
and owing by the Borrower to the Banks as of the Settlement Date pursuant to the
Credit Agreement or any other Loan Document, (iii) the Collateral heretofore
securing the Revolving Credit Loans and L/C participations set forth on the
Scheduled of Assigned Collateral attached hereto, and (iv) any other rights such
Assignor may have on the Settlement Date against the Borrower or its
Subsidiaries, their officers, directors, shareholders or advisors or with
respect to the items described in the foregoing clauses (i), (ii) and (iii)
pursuant to any Loan Document or otherwise, and Assignee will purchase and
assume each of such Assignor's rights thereunder:
--------------------------------- -------------------------------------
Name of Bank Percentage of Revolving Credit Loans
and L/C participations assigned(1)
--------------------------------- -------------------------------------
LaSalle Bank National Association 100%
--------------------------------- -------------------------------------
St. ▇▇▇▇▇▇▇ Bank, F.S.B. 68.203102%
--------------------------------- -------------------------------------
ARK CLO 2000-1 Limited 23.829902%
--------------------------------- -------------------------------------
U.S. Bank National Association 67.601618%
--------------------------------- -------------------------------------
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 9
hereto, shall deliver on the Settlement Date to each of the Assignors, or its
permitted assigns pursuant to paragraph 9 hereto, the consideration set forth
below opposite such Assignor's name:
--------------------------------- ------------------ -----------------
Name of Bank Cash Consideration Shares of Class A
Common Stock
of the Company
--------------------------------- ------------------ -----------------
LaSalle Bank National Association $ 4,989,000 0
--------------------------------- ------------------ -----------------
St. ▇▇▇▇▇▇▇ Bank, F.S.B. $ 1,935,000 844,294
--------------------------------- ------------------ -----------------
ARK CLO 2000-1 Limited $ 0 2,115,820
--------------------------------- ------------------ -----------------
U.S. Bank National Association $ 10,494,000 4,658,873
--------------------------------- ------------------ -----------------
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 9 hereto, has delivered the cash consideration (in
immediately available funds) and stock certificates representing the applicable
shares of the Borrower's Class A common stock, as applicable, to each of the
Assignors, or its permitted assigns pursuant to paragraph 9 hereof, in
accordance with paragraph 2 hereof.
4. Certain Representations, Warranties and Consents by Assignors. Each
Assignor hereby severally, and not jointly, represents and warrants to Assignee
that it is the legal and beneficial owner of the Revolving Credit Loans and L/C
participations and other rights being assigned by it hereunder and the interests
transferred by such Assignor hereunder are free and clear of any liens, security
interest, adverse claim or any other encumbrance on such Assignor's right, title
and interest therein. Each Assignor (including U.S. Bank National Association in
its capacity as Bank and as Agent) hereby consents to the (i) assignments made
hereunder by each other Assignor and (ii) assignments being made to Assignee by
the other Banks not an Assignor hereunder pursuant to separate assignment
documentation, in each case, notwithstanding anything to the contrary contained
in Section 10.3 or Section 10.14 of the Credit Agreement or in any other Loan
Document.
------------------------
(1) Note these percentages are preliminary calculations based on estimates
regarding current outstandings under the US Bank Credit Facility. Percentages
will be revised as numbers get finalized.
2
5. Loans to Remain Outstanding. After giving effect to the assigning and
transferring of the specified Revolving Credit Loans, L/C participations and
other rights to the Assignee on the Settlement Date as set forth above, then (a)
the outstanding principal amount of the Revolving Credit Loans owing to each
Assignor and each Assignor's participation L/Cs on the Adjustment Date shall be
equal to the amount set forth opposite such Assignor's name under the captions
"Adjusted Loans" and "Adjusted Participation" in the table set forth below and
(b) the adjusted Percentage of each Assignor shall be equal to the Percentage
set forth opposite such Assignor's name under the caption "Adjusted Percentage"
(and each Assignor shall be relieved of all obligations under the Credit
Agreement to the extent of the reduction effected to its Percentage in
accordance herewith):
------------------------------ ------------- -------------- ------------
Name of Bank Adjusted Adjusted Adjusted
Loans Participation s Percentage
------------------------------ ------------- -------------- ------------
LaSalle Bank National
Association $ 0 0 0%
------------------------------ ------------- -------------- ------------
St. ▇▇▇▇▇▇▇ Bank, F.S.B. $ 2,857,000 0 11.110679%
------------------------------ ------------- -------------- ------------
ARK CLO 2000-1 Limited $ 6,844,000 0 26.615851%
------------------------------ ------------- -------------- ------------
U.S. Bank National Association $16,013,000 0 62.273470%
------------------------------ ------------- -------------- ------------
In addition, the Banks (other than LaSalle Bank National Association) shall
retain all rights to the Collateral not set forth on the Schedule of Assigned
Collateral attached hereto.
Concurrently with the execution and delivery hereof, the Assignors (other
than LaSalle Bank National Association), the Borrower and the Assignee will
execute such amendments, modifications, terminations and releases with respect
to the Loan Documents as are necessary to reflect the transactions contemplated
by this Agreement and, in any event, each Assignor shall surrender its Notes to
the Company and the Company shall issue and deliver to each Assignor (other than
LaSalle Bank National Association) substitute Notes payable to each Assignor
(other than LaSalle Bank National Association) and in the aggregate principal
amounts indicated opposite such Assignor's name in the table set forth above.
Any Revolving Credit Loans or L/C participations, rights to interest, fees,
indemnities, rights to Collateral or any other rights purchased by the Assignee
hereunder shall be cancelled and shall no longer be obligations or liabilities
of the Borrower under the Loan Documents. Notwithstanding the above, upon
consummation of the transactions contemplated herein on the Settlement Date,
LaSalle Bank National Association shall cease to be a Bank under the Loan
Documents or any replacements thereof and shall have no further rights or
obligations with respect thereto.
6. 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.
7. 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
3
original and all of which shall together constitute one and the same
certificate. 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.
8. 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.
9. 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. If any Assignor receiving Class A common stock of the
Borrower pursuant to paragraph 2 hereto is prohibited by law from owning stock
in the Borrower, such Assignor may assign all of its rights to receive such
stock to an affiliate of the Assignor, provided such assignee prior to such
assignment executes all stockholders agreements, registration agreements and
other documents relating to Borrower's Class A common stock that Assignee may
reasonably require.
10. Release. LaSalle Bank National Association hereby agrees that, as of
the Settlement Date, upon receipt of the consideration set forth in paragraph 2
hereto on the Settlement Date, it shall have no rights or claims against the
Borrower, any of its Subsidiaries or any of their shareholders, officers,
employees, directors or advisors (collectively, the "Releasees") with respect to
the Credit Agreement or any other Loan Document or any transaction relating
thereto and hereby waives its rights to ▇▇▇, make any claim or take any action
against any Releasee with respect to any right, claim or liability occurring
under any Loan Document or any transaction relating thereto that arose or
occurred prior to the Settlement Date.
4
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/
-------------------------------
Its:
-------------------------------
Assignors: LA SALLE BANK NATIONAL ASSOCIATION
By: /s/
-------------------------------
Its:
-------------------------------
ST. ▇▇▇▇▇▇▇ BANK, F.S.B.
By: /s/
-------------------------------
Its:
-------------------------------
ARK CLO 2000-1 LIMITED
By: Patriarch Partners
Its: Manager
By: /s/
-------------------------------
Its:
-------------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/
-------------------------------
Its:
-------------------------------
5
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 LaSalle Bank National Association 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 action 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/
-------------------------------
Its:
-------------------------------
