CONCENTRATE PURCHASEAND SUPPLY AGREEMENT
THISCONCENTRATE PURCHASE AND SUPPLY AGREEMENT (this Agreement) is made and enteredinto as of this 22nd day of February, 2005 (the Effective Date), byand between Apple & Eve, LLC, a Delaware limited liability company corporation(Purchaser) and Northland Cranberries, Inc., a Wisconsin corporation(Supplier).
A. Supplieris party to that certain Toll Processing Agreement, dated September 23, 2004(the Toll Processing Agreement), by and between Supplier and OceanSpray Cranberries, Inc. (Ocean Spray), pursuant to which Ocean Spray has agreed to provide Supplier with cranberry concentrate.
B. Purchaserdesires to purchase from Supplier, and Supplier desires to sell to Purchaser,cranberry concentrate upon the terms and subject to the conditions set forth inthis Agreement.
C. Purchaserand Supplier are entering into this Agreement pursuant to Section 2.5(a)(iii)of that certain Asset Purchase Agreement of even date herewith by and betweenPurchaser and Supplier (the Asset Purchase Agreement).
NOW,THEREFORE, in consideration of the mutual covenants set forth herein, and other valuableand legally sufficient consideration, the receipt of which is hereby acknowledged, theparties hereto agree as follows:
1. Purchaseand Sale. Subject to the terms and conditions of this Agreement,during the Term (as hereinafter defined), Supplier shall sell and deliver toPurchaser, and Purchaser shall purchase and accept from Supplier, 50 Brixcranberry concentrate (the Concentrate) in the amounts set forth inSection 3 hereof for the purchase price set forth in Section 4 hereof.
2. Term.The term of this Agreement (the Term) shall commence on theEffective Date and shall continue until the earlier of: (i) September 30, 2014or (ii) the earlier termination of the Toll Processing Agreement. The period oftime from the Effective Date until the date one (1) year following theEffective Date shall hereinafter be referred to as the Initial Period. Theperiod of time from October 1, 2005 until the expiration of the Term shall bereferred to herein as the Second Period.
3. Purchaseand Sale Requirements. Purchaser agrees to purchase fromSupplier, and Supplier agrees to sell to Purchaser, Concentrate in thefollowing amounts:
(a) InitialPeriod Purchase and Sale. During the Initial Period, Purchasershall purchase from Supplier all of the Concentrate owned by Supplier as of theEffective Date (the Initial Inventory Concentrate); provided,however, that Purchaser shall in no event be required to purchase in excess ofTwo Hundred Twenty-Five Thousand (225,000) gallons of Initial InventoryConcentrate in the aggregate during the Initial Period. Purchaser shallpurchase on the Effective Date and on the first day of each calendar monththereafter during the Initial Period (each, an Initial Inventory DeliveryDate) that portion of the Initial Inventory equal to the lesser of: (i)Eighteen Thousand Seven Hundred Fifty (18,750) gallons; (ii) one twelfth (1/12)of the Initial Inventory, or (iii) the remaining Initial Inventory (the MonthlyBase Concentrate Amount). Purchaser may purchase an amount in excess ofMonthly Base Concentrate Amount on an Initial Inventory Delivery Date provided(i) Purchaser provides to Supplier written notice of its intent to purchasesuch excess on or before the 15th day of the calendar month preceding suchInitial Inventory Delivery Date and (ii) such excess is less than or equal tothe remaining Initial Inventory. Each lot of Initial Inventory Concentratepurchased under this Section 3(a) shall be materially consistent with thespecifications for such lot set forth in the Certificate of Analysis attachedas Exhibit A hereto (the Requirements). If any lot ofInitial Inventory Concentrate purchased under this Section 3(a) is materiallyinconsistent with the Requirements for such lot, and to the extent such lot isunusable in the production of consumer juice products under the brands soldpursuant to the Asset Purchase Agreement, Purchaser may reject such InitialInventory Concentrate pursuant to the applicable provisions of Section 5(b)below.
(b) SecondPeriod Purchase and Sale. Commencing on October 1, 2005, and foreach twelve (12) month period thereafter (each, a Fiscal Year)during the Second Period, Purchaser shall have the option each month topurchase an amount of Concentrate (the Second Period Concentrate) equal to the total monthly amount of cranberry concentrate available toSupplier under the Toll Processing Agreement for such month (the MonthlyAvailable Amount). No later than December 5 of each Fiscal Year duringthe Second Period, Supplier shall provide Purchaser a nonbinding, good faithestimate of the monthly amounts of cranberry concentrate available to Supplierunder the Toll Processing Agreement for the period beginning in January of suchFiscal Year and through September of such Fiscal Year (the Availability Estimate). In addition, no later than September 5 of each Fiscal Year during the Second Period, Supplier shall provide Purchaser a nonbinding, good faith estimate of the monthly amounts of cranberry concentrate available to Supplier under the Toll Processing Agreement for the period beginning inOctober of the following Fiscal Year and through December of such Fiscal Year(the Post-Harvest Availability Estimate). Notwithstanding anything contained herein or in any Second Period Purchase Order to the contrary, Supplier shall not be obligated to provide Second Period Concentrate to Purchaser in any period in amounts in excess of the cranberry concentrate delivered or to be delivered to Supplier by Ocean Spray pursuant to the Toll Processing Agreement. Except as relates to binding Second Period PurchaseOrders accepted by the Company, nothing contained herein shall require Supplierto sell to Purchaser any or all of Purchasers requirements for cranberry concentrate.
(c) RollingForecasts; Second Period Purchase Orders. Commencing on September15, 2005, Purchaser will provide Supplier with a written, rolling three-monthpurchase forecast which identifies the estimated weekly quantity of SecondPeriod Concentrate to be purchased from Supplier in each of the three fullcalendar months following the date of such forecast (the Rolling Forecast).Except as otherwise provided herein, the Rolling Forecast is for guidancepurposes only and shall not constitute an obligation on the part of Purchaserto order the quantities stated therein. Except as otherwise provided herein,Purchaser shall provide Supplier with written updates of the Rolling Forecaston or before the fifteenth (15th) day of each month during theremaining Term. Purchaser shall place orders for Second Period Concentrate notless than twenty (20) days prior to the requested delivery date (the SecondPeriod Delivery Date and, together with the Initial Inventory DeliveryDate, the Delivery Date) and in amounts materially consistent withthe Rolling Forecast which shall upon written acceptance by Supplier constitutePurchasers firm and binding order for the purchase of Second PeriodConcentrate (each, a Second Period Purchase Order and, togetherwith any other purchase orders hereunder, the Purchase Orders).Supplier shall use its best efforts (provided that such efforts do not causeSupplier to incur any material costs) to fill each Second Period Purchase Orderto the extent that Supplier can do so using deliveries of cranberry concentratefrom Ocean Spray under the Toll Processing Agreement. Purchase Orders andSuppliers acceptances thereof may be delivered by email or facsimiletransmission. In the event of a conflict between the terms of a Purchase Orderand the terms of this Agreement, the terms of this Agreement shall govern.
4. PurchasePrice. The purchase price payable by Purchaser for theConcentrate (as applicable, the Purchase Price) shall be determinedas follows:
(a) InitialPeriod Purchase Price. The Purchase Price for the InitialInventory to be purchased by Purchaser during the Initial Period shall beThirty One Dollars ($31.00) per gallon.
(b) SecondPeriod Concentrate Purchase Price. The Purchase Price for theSecond Period Concentrate shall not, in any particular month, be more than theprice at which Supplier sells or may sell 50 Brix cranberry concentrate toOcean Spray during such month pursuant to the Toll Processing Agreement (theMarket Price). Supplier shall provide Purchaser with the MarketPrice on or before the seventh (7th) business day of each monthduring the Second Period; provided, however, that Suppliers failure toprovide the monthly Market Price by such date shall not reduce or otherwise effect the Market Price payable by Purchaser in the event Purchaser orders Second Period Concentrate in such month.
(c) Withrespect to any Concentrate delivered to Purchaser hereunder, the Purchase Pricefor such Concentrate shall include all costs of manufacture, storage and interest charges incurred with respect to such Concentrate through the Second Period Delivery Date, together with any storage costs resulting from Suppliers failure to deliver Concentrate on the Delivery Date. The Purchase Price shall not include, and Purchaser shall be solely responsiblefor, any costs associated with the shipment of Concentrate after its deliveryfree on board (FOB) common or designated carrier on the applicableDelivery Date, including without limitation shipping, freight, insurance, taxesand other charges and any and all additional storage costs incurred by Supplierdue to Purchasers (or its carriers) failure to take possession ofthe Concentrate on the Delivery Date. If any such costs are paid by Supplier, Supplier will separately invoice Purchaser for such costs.
5. Delivery;Passage of Title.
(a) Delivery;Packing and Shipping. Supplier shall deliver the Concentrate toPurchasers common or other carrier: (i) at, with respect to the InitialInventory Concentrate, the third party warehouse locations identified inExhibit A hereto, or (ii) otherwise, at the Ocean Spray facility,Ocean Sprays outside freezer location or other agreed upon location atwhich cranberry concentrate is delivered to Supplier under the Toll ProcessingAgreement. Supplier shall be responsible for loading all Concentrate onto acommon or designated carrier designated by Purchaser. On each Second PeriodDelivery Date, Supplier shall deliver to Purchaser the lesser of that quantityof Second Period Concentrate set forth in the Second Period Purchase Order or aquantity of Second Period Concentrate equal to the quantity of cranberryconcentrate delivered or to be delivered to Supplier by Ocean Spray pursuant tothe Toll Processing Agreement. All Concentrate shall be packaged in 50-gallondrums in accordance with the Requirements or the Specifications, as the casemay be. Purchaser shall be responsible for securing, scheduling and paying forall transportation of Concentrate after the Delivery Date; provided, however,that Supplier shall be responsible for any storage costs resulting from Suppliersfailure to deliver Second Period Concentrate on the Second Period DeliveryDate.
(b) Acceptanceof Concentrate. Notwithstanding anything to the contrary herein,Purchaser shall not be required to purchase and may reject: (i) any InitialInventory Concentrate which fails to meet the Requirements, or (ii) any SecondPeriod Concentrate which fails to meet the Specifications or the warranty setforth in Section 10(b) hereof. Purchaser or its third party inspectors shallpromptly inspect the Concentrate and shall, within twenty (20) days followingthe applicable Delivery Date, provide Supplier written notice of any claim thatthe Concentrate is nonconforming, damaged, defective or fails to meet theRequirements, as to the Initial Inventory Concentrate, or the Specifications,as to the Second Period Concentrate. Upon Purchasers written acceptanceof any Concentrate, first use of such Concentrate or failure to give Supplierwritten notice of any claim that the Concentrate is nonconforming, damaged,defective or fails to meet the Requirements, as to the Initial InventoryConcentrate, or the Specifications, as to the Second Period Concentrate, withinsuch twenty (20) day period, whichever occurs first, the applicable Concentrateshall be deemed to conform to the terms of this Agreement, and Purchaser shallbe deemed to have accepted the Concentrate on an as-is basis,subject to any claims related to the breach of Suppliers warranty setforth in Section 10(b) hereof. Purchaser hereby expressly and unconditionallywaives any and all rights it may have or have otherwise had after expiration ofsuch twenty (20) day period to revoke acceptance or to claim the Concentrate isnonconforming, damaged, defective or fails to meet the Requirements, as to theInitial Inventory Concentrate, or the Specifications, as to the Second PeriodConcentrate.
(c) Passageof Title. Title and risk of loss of the Concentrate shallautomatically pass to Purchaser on the applicable Delivery Date and not before.Upon passage of title, Purchaser shall receive good title to all deliveredConcentrate, free and clear of all liens and encumbrances.
(d) Failureof Ocean Spray to Deliver Concentrate. Except with respect tothe Initial Inventory, Supplier shall have no obligation to accept a SecondPeriod Purchase Order under this Agreement or to deliver any Second PeriodConcentrate under any Second Period Purchase Order if Ocean Spray is unable orfails, for whatever reason under the Toll Processing Agreement, to delivercranberry concentrate in kind and quantity sufficient to satisfy the Specifications and/or the applicable Second Period Purchase Order; providedthat Supplier may choose to partially fulfill an order to the extent it cansource cranberry concentrate from Ocean Spray. Supplier shall not be obligatedin the Second Period to deliver during any month more than the amount ofConcentrate Supplier can purchase from Ocean Spray during such month under theToll Processing Agreement. Supplier shall notify Purchaser as soon aspracticable upon its discovery of Ocean Sprays inability or failure todeliver Second Period Concentrate sufficient to satisfy the Specificationsand/or the applicable Second Period Purchase Order to the extent accepted bySupplier and shall use commercially reasonable efforts thereafter to fulfillthe terms of the applicable Second Period Purchase Order, to the extentaccepted by Supplier.
6. Payment.Supplier shall issue invoices for the Concentrate within three (3) businessdays of each Delivery Date, the payment terms of which shall be net thirty (30)days from the Delivery Date; provided, however, that such period shall beextended by the duration of any delay caused by Supplier in the delivery ofSecond Period Concentrate. If any invoice is not paid within such time,Purchaser shall be assessed a penalty of interest at an annual rate equal tothe prime rate as published in the Wall Street Journal on the date suchpayment was due, plus five percent (5%). All payments to Supplier shall be madeelectronically to an account designated by Supplier, shall be made in UnitedStates currency or cash equivalent and shall be payable in full without delay,set-off, reduction or discount. Invoices may be delivered by email or facsimiletransmission.
7. QualitySpecifications. The Initial Inventory shall meet theRequirements set forth on Exhibit A hereto, and the Second PeriodConcentrate shall meet the specifications set forth on Exhibit B hereto(the Specifications). Supplier shall each month provide Purchaserwith the certificate(s) of analysis for each lot of Second Period Concentrateas and when provided to Supplier by Ocean Spray pursuant to the Toll ProcessingAgreement. Notwithstanding the above, however, Purchaser acknowledges andagrees that Supplier may from time to time, and upon written notice toPurchaser, amend the Specifications set forth on Exhibit B hereto tothe extent and as such Specifications may be unilaterally amended by OceanSpray from time to time pursuant to the terms of the Toll Processing Agreement,and that such amendment shall otherwise have no effect on this Agreement.Purchaser shall be solely responsible for obtaining, at Purchasers solecost and expense, any additional inspections, approvals or certifications andother requirements for the sale to consumers of the Concentrate by Purchaser orits Affiliates. Provided that the Concentrate complies with the Requirements orthe Specifications, as applicable, Supplier shall not be responsible for anyfine, penalty or loss of any kind in any way resulting from the inspection,testing for or failure to meet any standards or specifications or obtaininspections, approvals, certifications or other requirements necessary for thedistribution, sale and/or consumption of the Concentrate. As used herein, theterm Affiliate shall mean any person (including but not limited tonatural persons, corporations, limited liability companies, limitedpartnerships, general partnerships, limited liability partnerships, jointventures, trusts, land trusts, business trusts and other organizations) whocontrols, is controlled by or is under common control with such person.
(a) BySupplier. If at any time Purchaser breaches any representation or warrantyor fails to perform any obligation in this Agreement, Supplier may, in its solediscretion, terminate this Agreement upon forty-five (45) days writtennotice, provided that Supplier shall have the ability to terminate thisAgreement immediately in the event any payment required to be made by Purchaserto Supplier is not received within twenty (20) days of notice of default, inany such event unless such default is being contested in good faith byPurchaser. In addition, Supplier may immediately terminate this Agreement uponthe termination, for any reason, of the Toll Processing Agreement.
(b) ByPurchaser. If at any time during the Second Period Supplier breaches anyrepresentation or warranty or fails to perform any obligation in thisAgreement, Purchaser may, in its sole discretion, terminate this Agreement uponforty-five (45) days written notice, in any such event unless suchdefault is being contested in good faith by Supplier. In addition, upon thetermination, for any reason, of the Toll Processing Agreement, Purchaser mayterminate its obligation to purchase the Second Period Concentrate under thisAgreement.
9. Taxesand Fees. Any manufacturers, retailers, occupation,use, personal property, sales or excise tax, duty, custom, inspection ortesting fee, or any other tax, fee or charge of any nature whatsoever imposedby any governmental authority, on account or measured by any goods sold orshipped by Supplier to Purchaser hereunder, or in the possession of Purchaser,or by any sale by Supplier to Purchaser, shall be paid by Purchaser in additionto the prices agreed or invoiced. In the event that Supplier pays any such tax,fee or charge, Purchaser shall reimburse Supplier therefor.
10. Warrantiesand Covenants of Supplier; Limitations on Liability.
(a) NoAmendments to Specifications under Toll Processing Agreement. To theextent any amendments or modifications of the cranberry concentrate specifications under the Toll Processing Agreement require the consent of Supplier, or any other provision of the Toll Processing Agreement which relates to the use or sale of cranberry concentrate under such agreement by Purchaser, Supplier agrees that it shall not consent to any such amendments or modifications without the express prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed.
(b) Noticeof Changes. No later than December 1 of each year during theTerm hereof, Supplier shall notify Purchaser of its intention to terminate orcancel any supply or sourcing agreements with any third party contract growersto which Supplier is a party as of the Effective Date (the Third PartySupply Agreements), the effect of which would be to reduce the totalacreage of cranberry marshes under contract by Supplier or its Affiliates (theAvailable Acreage) to less than 1,575 acres. Upon such terminationor cancellation, Supplier agrees to use its best efforts (provided that suchefforts do not cause Supplier to incur any material costs) to: (i) introducePurchaser to such third party contract growers; and (ii) assist Purchaser inestablishing a supply arrangement with such third party contract growers.
(c) Warranties.Supplier warrants to Purchaser that the Concentrate, as of the time of eachrespective Delivery Date, complies with applicable law, is not adulterated, andis fit for human consumption. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THISSECTION 10(c), SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,EXPRESS OR IMPLIED AND EITHER IN FACT OR BY OPERATION OF LAW, WITH RESPECT TOTHE CONCENTRATE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OFMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTYARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE.PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE LIMITEDWARRANTY SET FORTH IN THIS SECTION 10(c) AND SUBJECT TO THE RIGHT OF REJECTIONSET FORTH IN SECTION 5(b): (I) PURCHASER IS PURCHASING THE CONCENTRATE AS-IS; AND(II) NO ORAL OR WRITTEN STATEMENTS, ADVICE OR INFORMATION GIVEN BY SUPPLIER,ITS AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS, OR THEIR RESPECTIVEDIRECTORS, OFFICERS OR EMPLOYEES, SHALL CREATE ANY REPRESENTATION OR WARRANTYOF ANY KIND WHATSOEVER. THE LIMITED WARRANTY CONTAINED HEREIN IS EXCLUSIVE TOPURCHASER AND SHALL NOT EXTEND TO ANY THIRD PARTIES.
(d) Indemnification.Supplier shall defend, indemnify and hold Purchaser harmless from and againstany and all liability, loss, damage, cost or expense incurred by Purchaser(including reasonable attorneys fees) arising out of or in connectionwith (i) the breach of Suppliers representations (to the extent limitedin Section 10(e) of this Agreement), warranties and agreements herein (unlesssuch breach is caused by a breach of Purchasers representations,warranties and obligations hereunder), (ii) any patent infringement relating toany equipment, technology, process or method used by Supplier or itssubcontractors in providing Concentrate hereunder which is not specificallyrequired by the Specifications, and (iii) any recall to the extent such recallis attributable to the breach of Suppliers representations and warrantiesherein, provided, however, that such indemnification in (i) through (iii) shallnot apply to the extent that such losses, claims, damages and liabilities arisefrom the willful misconduct or gross negligence of Purchaser or itsrepresentatives.
(e) Limitationof Liability. Except as otherwise provided in this Section 10,Suppliers sole obligation to Purchaser with respect to Concentrate soldhereunder shall be to replace defective Concentrate pursuant to Sections 5(d)and 10(c) above, but only to the extent it can do so with the cranberryconcentrate available to it under the Toll Processing Agreement. NEITHERSUPPLIER NOR ITS AFFILIATES, NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, SHALL BE LIABLE FOR, AND PURCHASER HEREBY EXPRESSLYWAIVES, ANY AND ALL CLAIMS AGAINST SUPPLIER, ITS AFFILIATES AND THEIRRESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, FOR INCIDENTAL, SPECIAL,CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FORLOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, LOSS OF USE OF PRODUCTSASSOCIATED THEREWITH, INABILITY TO PERFORM SPECIFIC PROJECTS, COST OF CAPITAL,DOWNTIME COSTS, FACILITIES OR SERVICES, SHUT-DOWNS, SLOW-DOWNS OR CLAIMSRESULTING FROM CONTRACTS AND/OR AGREEMENTS BETWEEN PURCHASER, ITS CUSTOMERS,CONTRACTORS AND/OR SUPPLIERS, IN EACH CASE WHICH IN ANY WAY RELATES TO THE SALEOF THE CONCENTRATE OR THE USE THEREOF. THIS LIMITATION APPLIES REGARDLESS OFWHETHER SUCH DAMAGES ARE SOUGHT BASED ON BREACH OF CONTRACT, BREACH OFWARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
11. Warrantiesand Covenants of Purchaser.
(a) Restrictionson Use of Concentrate. Purchaser warrants, covenants and agreesthat all Concentrate supplied by Supplier and purchased by Purchaser under thisAgreement shall only be used as an ingredient for products sold by Purchaserunder the brand names Northland, Seneca, and Tree Sweet; provided,however, that the Initial Inventory acquired by Purchaser hereunder may be usedas an ingredient in other products sold under brand names owned by Purchaser onthe Effective Date. Beginning on the date three (3) months from the EffectiveDate, and every three (3) months thereafter during the Term, Purchaser shallprovide Supplier a certificate signed by Purchasers Chief ExecutiveOfficer or its Chief Financial Officer certifying, solely in their respectivecapacities as officers of Purchaser, that all of the Concentrate purchased byPurchaser in the preceding three (3) month period has been used only aspermitted by this Section 11; provided, however, that no such officer shall asa result of such certification incur any personal liability to Supplier.Supplier will request that Ocean Spray consent to permit the Second PeriodConcentrate to be used as an ingredient for products sold by Purchaser underthe brand name Apple & Eve.
(b) Breachof Covenants; Remedies. Purchaser acknowledges and agrees that anybreach of the provisions this Section 11(a) will cause Supplier irreparableinjury for which monetary damages may not be adequate, and that Supplier shallbe entitled to temporary, preliminary and permanent injunctive relief, withoutbond, to restrain any actual or threatened conduct of Purchaser in violation ofthese provisions. Except as otherwise provided herein, the rights and remediesof Supplier hereunder are not exclusive, and Supplier shall, alternatively orcumulatively, be entitled to damages for breach, to injunctive relief, specificperformance and any other remedy at law or in equity. Purchaser acknowledgesand agrees that any breach of the provisions of Section 11(a) will causeSupplier to incur significant direct, indirect, incidental, consequential andother damages, including without limitation loss of profit, loss of business,loss of goodwill, lost use of products and services, downtime costs and damageto Suppliers business relationship with its customers and suppliers.Purchaser therefore agrees to defend, indemnify and hold Supplier harmless fromand against any and all claims, damages and expenses of any kind incurred as aresult of any breach of the provisions of this Agreement. Nothing contained inthis Agreement shall be construed to limit in any way limit Suppliersdamages with respect to Purchasers breach of the covenants contained inSection 11(a).
12. Inspection.Supplier or Suppliers representatives, including its independent publicaccountants, shall have the right, upon not less than five (5) days priorwritten notice to Purchaser and during Purchasers normal business hours,to review all books and records in the possession of Purchaser or subject toPurchasers control relating to the production and use of the Concentrate,or products in which the Concentrate is used as an ingredient, or otherwisenecessary to confirm Purchasers compliance with the covenants containedin this Agreement, including without limitation all formulas, blending andbottling records, line production and other manufacturing records(collectively, the Use Records). The Use Records shall be retainedby Purchaser for the lesser of: (i) a period of one (1) year following thefinal date of delivery hereunder; or (ii) such period as may be required underapplicable federal, state or local law.
(a) ByPurchaser. At or prior to the Effective Date, Purchaser, at itssole expense shall cause Supplier to be named as an additional insured undereach of its policy or policies of insurance insuring against claims for personal injury, property damage and product liability arising out of or resulting from the purchase, sale, distribution or consumption of the Concentrate. On or prior to the Effective Date, Purchaser shall deliver to Supplier one or more certificates of insurance evidencing that the insurance to be obtained by it pursuant to this Section 13 is in effect and providing for notification to Supplier at least thirty (30) days prior to the effective date of any termination or cancellation of such insurance. The insurance coverageset forth in this Section 13 shall be maintained by Purchaser in an amount ofnot less than two million dollars ($2,000,000) per occurrence and ten million dollars ($10,000,000) in the aggregate during the term of this Agreement andfor a period of one (1) year following the termination of this Agreement.Supplier shall not be responsible for any of Purchasers supplies orequipment (crates, containers, vehicles, etc.) and Purchaser shall be solelyresponsible for maintaining insurance on such items as it deems appropriate.Purchaser shall maintain such insurance covering product liability and itsemployees and vehicles in such amounts and coverages as is customary forcompanies in the industry and upon Suppliers request shall furnishevidence of such insurance to Supplier.
(b) BySupplier. For the duration of this Agreement, Supplier shall maintainall insurance required of it under the Toll Processing Agreement and shallcause Purchaser to be named as an additional insured under each of the policiestherefor and shall provide the types of certificates therefor, with the notification requirements specified above, as Purchaser is to provide to Supplier under Section 13(a).
14. ForceMajeure. Notwithstanding any other provision of this Agreement,neither party shall be liable to the other hereunder for any failure to complywith the terms and provisions of this Agreement, including particularly, butwithout limitation, failure to deliver Concentrate, if such failure is causedby, due to, or arises from, factors beyond such partys reasonablecontrol, including without limitation acts or omissions of the other partyhereto, any act of God, acts of terror or national calamity, war or politicalstrife, natural disasters, storms or fire, action by any lawful authority, theprovisions of any present or future law, regulation or rule (including theCranberry Marketing Order as promulgated by the United States Department ofAgriculture), labor disputes, delay or failure of transportation, unavailability of raw materials or other situations, whether similar or dissimilar to the foregoing, resulting from causes not within the reasonable control of such party.
15. Assignment.This Agreement may not be assigned by either party without the prior writtenconsent of the other party, which consent shall not be unreasonably withheld ordelayed, and any attempted assignment without such written consent shall benull and void and without legal effect. This Agreement shall be binding uponand inure to the benefit of the respective parties hereto and their permittedsuccessors and assigns. Notwithstanding the foregoing, either party may assignthis Agreement without the consent of the other party to any person,corporation or other entity with or into which such party may be merged, or towhich all or substantially all of such partys assets (or its remainingassets, at any given time) may be sold or otherwise transferred (which in thecase of Supplier, must also include the assumption of its obligations under theToll Processing Agreement) or to any assignees of any of the brand namescontemplated in Section 11(a) (subject to Suppliers consent, not to beunreasonably withheld or delayed), and the parties hereto hereby agree that inconnection with any such transaction, at the assigning partys option, theother party shall use commercially reasonable efforts to obtain from the otherparty or parties to such transaction its or their agreement to assume and beresponsible for the assigning partys obligations hereunder and otherwiseto be bound by the terms of this Agreement (provided, however, in the case ofan assignment by Purchaser, such assignment shall have no force or effectunless such other party or parties agrees in writing to be bound by the termsof this Agreement). In addition, Supplier may assign this Agreement, or any ofSuppliers rights hereunder, as collateral security to any bank, lender orother financial institution.
16. Waiver.The delay or failure by either party to exercise or enforce in any one or moreinstances, any of the terms or conditions of this agreement shall notconstitute or be deemed a waiver of that partys right thereafter toenforce the terms and conditions of this Agreement. Except as otherwiseexpressly provided herein, rights and remedies hereunder shall be cumulative.
17. Relationshipof the Parties. Except as otherwise provided herein, the partieshereto are independent contractors, and neither is the agent, licensee,distributor, partner, joint venturer or employee of the other, and neither isauthorized to assume or create any obligation on behalf of or in the name ofthe other party. Nether party will state, imply or knowingly permit anyone toinfer that any other relationship exists between the parties.
18. Notices.Any notices, demands, requests, consents, waivers, approvals or othercommunications given or made, or required to be given or made, under thisAgreement must be made in writing and shall be deemed effective on the earlierof (a) the day of actual personal delivery, which shall include communicationby telefax, if proof of receipt by the recipient party is communicated inwriting to the sending party; (b) one business day after delivery by acertified overnight courier service to the address set forth below; or (c) fivebusiness days after deposit by certified or registered mail or airmail, postageprepaid, addressed as follows:
|Ifto Supplier, to:|
2321 West Grand Avenue
Wisconsin Rapids, WI 54495-8020
Attn: KennethIwinski, Esq.
Facsimile: (715) 422-6897
|Witha copy (which shall not constitute notice) to:|
|Foley& Lardner LLP
777 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Steven R. Barth, Esq.
Facsimile: (414) 297-4900
|Ifto Purchaser, to:|
|Apple& Eve LLC
2 Seaview Boulevard
Port Washington, NY 11050-4634
Attention: Gordon Crane,CEO
Fax No.: (516) 625-9474
|Witha copy (which shall not constitute notice) to:|
|Ifprior to August 31, 2005:|
|Moses& Singer LLP
1301 Avenue of the Americas
New York, NY 10019
Attn: James Alterbaum, Esq.
Facsimile: (212) 554-7700
|Iffrom and after September 1, 2005:|
|Moses& Singer LLP
The Chrysler Building
405 Lexington Avenue
New York, NY 10174
Attn: JamesAlterbaum, Esq.
Facsimile: (212) 554-7700
19. Counterparts.This Agreement may be executed in two counterparts, each of which shall bedeemed an original and both of which together shall be deemed to be one and thesame Agreement.
20. GoverningLaw; Venue. This Agreement shall be governed by and construed inaccordance with the internal laws of the State of New York, without regard toits principles of conflicts of law which would require the application of thelaws of another jurisdiction.
21. Headings.Section headings of this Agreement are for convenience only and shall not beconstrued as a part of this Agreement or as a limitation on the scope of any ofthe terms or provisions of this Agreement.
22. Severability.If any provision of this Agreement is held invalid or unenforceable by anyauthority of competent jurisdiction, such ruling shall not invalidate or renderunenforceable the other provisions of this Agreement.
23. NoThird Party Beneficiaries. Nothing in this Agreement, express orimplied, is intended to confer on any other person or entity other thanSupplier and Purchaser and their respective successors and assigns (to the extent permitted under Section 15) any rights or remedies under or by virtue of this Agreement.
24. EntireAgreement; Amendment. This Agreement represents the entireagreement between the parties with respect to the subject matter hereof andsupersedes and terminates all prior agreements, whether written or oral, entered into between the parties with respect to said subject matter. For their convenience, the parties may from time to time use their standard purchase orders, sales releases, delivery schedules, acknowledgments, invoices and other similar preprinted forms. Any terms and conditions contained in such formsshall have no effect on the rights and obligations of the parties with respectto the purchase and sale of the Concentrate. The parties expressly intend andagree that the terms and conditions of this Agreement shall prevail andexclusively govern the relationship between them as to the sale and purchase ofConcentrate. This Agreement cannot be modified or terminated nor may any of itsprovisions be waived except by a written instrument signed by both partieshereto.
INWITNESS WHEREOF, the parties hereto have, through their duly authorized representatives,executed this Agreement as of the day and year first above written.
APPLE & EVE, LLC, a
Delaware limited liability company
NORTHLAND CRANBERRIES, INC.,
a Wisconsin corporation
|By:||/s/ Jonathan Alpert
||By:||/s/ John Swendrowski
|Jonathan Alpert||John Swendrowski|
|Title||Chief Financial Officer
||Title||Chairman and Chief Executive Officer