Case: swd Doc #:265-1 Filed: 01/17/13 Page 1 of 18

Transcription

1 Case: swd Doc #:265-1 Filed: 01/17/13 Page 1 of 18 EXECUTION COPY ASSET PURCHASE AGREEMENT This Asset Purchase Agreement ("Agreement") is made and entered into as of this 16th day of January, 2013 (the "Execution Date"), by and between Boersen Farms, Inc., a Michigan corporation ("Purchaser"), and Stamp Farms, L.L.C., a Michigan limited liability company, Stamp Farms Trucking, L.L.C., a Michigan limited liability company, Stamp Farms Custom AG, L.L.C., a Michigan limited liability company, and Royal Star Farms, L.L.C., a Michigan limited liability company (each a "Seller" and collectively, the "Sellers"). RECITALS A. B. Sellers conduct a commercial grain farming business operating in southwestern Michigan (the "Business"). On November 30, 2012, each of the Sellers filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the Western District of Michigan (the "Bankruptcy Court") and their chapter 11 cases are being jointly administered in Case No (the "Cases"). Sellers wish to sell to Purchaser substantially all of the assets used in connection with the Business at the price and on the other terms and conditions specified in detail below and Purchaser wishes to so purchase and acquire such assets from Sellers. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Transfer of Assets. 1.1 Purchase and Sale of Assets. On the Closing Date (defined below), in consideration of the covenants, representations and obligations of Purchaser hereunder, and subject to the conditions hereinafter set forth, Sellers shall sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall purchase from Sellers all of Sellers' right, title and interest as of the Closing Date in and to the following assets, free and clear of liens, claims, lease or other interests and encumbrances whatsoever, of any party other than the estate pursuant to the applicable provisions of the Bankruptcy Code, wherever located (collectively, the "Property"): Land Leases. Sellers' right, title and interest as lessee under those real property leases described on Exhibit "A" to this Agreement (collectively, the "Real Property Leases") Personal Property. All of those items of equipment and tangible personal property, whether owned or leased by Sellers as of the Execution Date, and listed on Exhibit "B" attached to this Agreement, consisting of irrigation equipment listed on Exhibit "B-1" (including all of Sellers' right, title and interest in and to the well pumps, piping, electric service

2 Case: swd Doc #:265-1 Filed: 01/17/13 Page 2 of 18 and related equipment that supports operation of the pivots listed thereon) and non-irrigation equipment listed on Exhibit "B-2" (collectively, the "Personal Property") Inventory. All supplies, goods, materials, work in process, inventory and stock in trade owned by Sellers and listed on Exhibit "C" attached to this Agreement excluding any such items used or disposed of in the ordinary course of business prior to the Closing (collectively, the "Inventory") Intangibles. All intangible assets, if any, owned by Sellers and listed on Exhibit "D" attached to this Agreement (the "Intangibles) Fertility Records. All soil fertility records and mapping for the property covered by the Real Property Leases. 1.2 Excluded Assets. Notwithstanding anything to the contrary in this Agreement, the Property shall not include any of Sellers' right, title and interest in and to the following: (i) all items excluded pursuant to the provisions of Section 1.1 or not otherwise specifically defined as Property in Section 1.1; (ii) all accounts receivable, cash and cash equivalents; (iii) all inventory transferred or used by Sellers in the ordinary course of the Business prior to the Closing Date; (iv) all leases, rental agreements, contracts, agreements, licenses or similar arrangements ("Contracts") rejected, terminated or expired prior to the Closing Date; (v) all rights, property or assets listed on Exhibit "E" hereto; (vi) all preference or avoidance claims and actions of Sellers, including, without limitation, any such claims and actions arising under Chapter 5 of the Bankruptcy Code; (vii) all rights under this Agreement and all cash and non-cash consideration payable or deliverable to Sellers pursuant to the terms and provisions of this Agreement; (viii) all insurance proceeds, claims and causes of action; (ix) all security deposits; (x) all corporate books and records relating to Sellers' organization and existence; and (xi) all intangible assets not specifically listed on Exhibit "D." 1.3 Instruments of Transfer. The sale, assignment, transfer, conveyance and delivery of the Property to Purchaser and the assumption of liabilities provided herein by Purchaser shall be made by assignments, bills of sale, and other instruments of assignment, transfer and conveyance provided for in Section 3 and such other instruments as may reasonably be requested by Purchaser or Sellers (collectively, "Transfer Instruments"). None of the Transfer Instruments shall increase in any material way the burdens imposed by this Agreement upon Sellers or Purchaser or the warranties provided by Sellers hereunder. Consideration. 2.1 Purchase Price The cash consideration to be paid by Purchaser to Sellers for the Property (the "Purchase Price") shall be an amount equal to $22,803,822 minus the total Cure Amounts, which Purchaser shall separately pay the contract counter-party pursuant to Section Prior to or concurrently with the Execution Date, Purchaser shall deposit into escrow with Varnum LLP (the "Deposit Escrow Holder") $1,140, (the "Deposit") in 2

3 Case: swd Doc #:265-1 Filed: 01/17/13 Page 3 of 18 immediately available, Federal funds (funds delivered in this manner are referred to herein as "Good Funds"), pursuant to joint escrow instructions to be delivered to and acknowledged by the Deposit Escrow Holder on or before the Execution Date. Such escrow instructions shall include the provisions set forth in this Section Upon receipt of the Deposit, the Deposit Escrow Holder shall immediately deposit the Deposit into the Deposit Escrow Holder's non-interest bearing IOLTA account. The Deposit Escrow Holder shall return to Purchaser the Deposit upon the earlier of (i) Purchaser's termination of this Agreement under Section as a result of the failure of a condition to Purchaser's obligations, as set forth in Section 4.2, (ii) Sellers' termination of this Agreement at their election under Section unless the Purchaser is in default of this Agreement, (iii) Purchaser's or Sellers' termination of this Agreement at their election under Section 4.3.3, (iv) at the Outside Date (defined below), as extended pursuant to Section 3.2, if no Closing has occurred as of such date and the Agreement is terminated and the Purchaser is not in default of this Agreement, (v) upon closing of a sale of the Property to a Third-party Winning Bidder (defined below) pursuant to Section 8.3.1, or (vi) mutual termination of this Agreement under Section The Deposit Escrow Holder shall deliver the Deposit to Sellers upon the earlier of (A) any termination of this Agreement other than the terminations specifically described above, including, without limitation, Sellers' termination of this Agreement under Section as a result of the failure of a condition to Sellers' obligations set forth in Section (a "Purchaser Default Termination"), or (B) at the Closing On the Closing Date, Purchaser shall (i) pay and deliver to Sellers, by wire transfer in Good Funds, the Purchase Price less the Deposit and (ii) instruct the Deposit Escrow Holder to deliver the Deposit to Sellers, by wire transfer of Good Funds. 2.2 Assumed Liabilities. Purchaser shall, effective as of the Closing Date, assume and perform, and indemnify Sellers in respect of: (i) all liabilities accruing under the Real Property Leases on and after the Closing Date and/or otherwise required to be performed with respect to the Property on or after the Closing Date; and (ii) all liabilities related to the Intangibles, if any, and accruing on and after the Closing Date (the "Assumed Liabilities"). Other than the Assumed Liabilities, Purchaser is not assuming and shall not be liable for any other liabilities or obligations of Sellers. 2.3 Cure Amounts. On the Closing Date, Purchaser agrees to pay to the applicable contract counterparties (the "Contract Counterparties") all cure amounts (the "Cure Amounts") then due and payable under the Real Property Leases assumed by Purchaser at the Closing which the Bankruptcy Court orders to be paid as a condition to Sellers' assumption and assignment to Purchaser of the Real Property Leases in accordance with Section 365 of the Bankruptcy Code. Closing Transactions. 3.1 Closing. The Closing of the transactions provided for herein (the "Closing") shall take place at the offices of Sellers' counsel or at such other location as shall be mutually agreeable to Sellers and Purchaser. 3.2 Closing Date. The Closing shall be held within five (5) business days after satisfaction or waiver of the conditions to closing in Section 4 (the "Closing Date") but in no 3

4 Case: swd Doc #:265-1 Filed: 01/17/13 Page 4 of 18 event later than February 15, 2013 (the "Outside Date"); provided, however, that the Outside Date may be extended upon mutual agreement of Purchaser and Sellers. If the conditions to Closing have not been satisfied or waived by the Outside Date, then any party who is not in default under this Agreement may terminate this Agreement. Alternatively, the parties may mutually agree to an extended Closing Date. Until this Agreement is either terminated or the parties have agreed upon an extended Closing Date, the parties shall diligently continue to work to satisfy all conditions to Closing. 3.3 Sellers' Deliveries to Purchaser at Closing. On the Closing Date, Sellers shall make the following deliveries to Purchaser: An assignment and assumption agreement, duly executed by Sellers, pursuant to which Sellers assign to Purchaser the Real Property Leases and Purchaser agrees to perform and discharge the Assumed Liabilities and indemnify Sellers in respect thereof (the "Assignment Agreement") A bill of sale ("Bill of Sale") and the other Transfer Instruments, duly executed by Sellers pursuant to which Sellers transfer all of the Property other than the Real Property Leases to Purchaser. 3.4 Purchaser's Deliveries to Sellers at Closing. On the Closing Date, Purchaser shall make or cause the following deliveries to Sellers: The Deposit to be paid and delivered by the Deposit Escrow Holder to Sellers as provided in Section The Purchase Price, less the Deposit, to be delivered by Purchaser directly to Sellers at the Closing under Section The Cure Amounts, which shall be delivered to the applicable Contract Counterparties to the Real Property Leases The Assignment Agreement, duly executed by Purchaser The Bill of Sale, duly executed by Purchaser All other Transfer Instruments, duly executed by Purchaser. 3.5 No Prorations. There shall be no proration of rent, taxes, utilities and other similar items of expense. 3.6 Intentionally deleted. 3.7 Sales, Use and Other Taxes. The Sellers shall pay all taxes assessed against the Property and billed to the Sellers in 2012 from the proceeds of the sale contemplated by this Agreement. If any: (a) real estate transfer taxes or similar taxes or charges are required to be paid in order to record any deeds to be delivered to Purchaser in accordance herewith, or in the event 4

5 Case: swd Doc #:265-1 Filed: 01/17/13 Page 5 of 18 any such taxes are assessed at any time thereafter; or (b) sales, use, transfer or other similar taxes or charges are assessed at the Closing or at any time thereafter on the transfer of any other Property, then in each instance such taxes or charges incurred as a result of the transactions contemplated hereby shall be paid by Purchaser. 3.8 Possession. All rights to possession of the Property shall transfer to Purchaser on the Closing Date. Sellers shall transfer and deliver to Purchaser on the Closing Date all keys, locks and safe combinations and such other similar items as Purchaser shall require to obtain immediate and full occupation and control of the Property, and shall also make available to Purchaser at their then existing locations the originals of all documents in Sellers' possession that are required to be transferred to Purchaser by this Agreement. 4. Conditions Precedent to Closing. 4.1 Conditions to Sellers' Obligations. Sellers' obligation to make the deliveries required of Sellers at the Closing shall be subject to the satisfaction or waiver by Sellers of each of the following conditions: All representations and warranties of Purchaser contained in this Agreement shall continue to be true and correct at the Closing in all material respects, all covenants and obligations to be performed by Purchaser prior to the Closing shall have been performed in all material respects and Purchaser shall have certified the foregoing to Sellers in writing Purchaser shall have executed and delivered to Sellers all of those documents, instruments and agreements required to be executed by Purchaser to Sellers under Section Sellers shall have received the Purchase Price in Good Funds Purchaser shall have delivered to Sellers appropriate evidence of all necessary corporate action by Purchaser in connection with the transactions contemplated by this Agreement, including, without limitation: (i) certified copies of resolutions duly adopted by Purchaser's directors approving the transactions contemplated by this Agreement and authorizing the execution, delivery, and performance by Purchaser of this Agreement; and (ii) a certificate as to the incumbency of officers of Purchaser executing this Agreement and any instrument or other document delivered in connection with the transactions contemplated by this Agreement No action, suit or other proceedings shall be pending before any court, tribunal or governmental authority seeking or threatening to restrain or prohibit the consummation of the transactions contemplated by this Agreement, or seeking to obtain substantial damages in respect thereof, or involving a claim that consummation thereof would result in the violation of any law, decree or regulation of any governmental authority having appropriate jurisdiction. 5

6 Case: swd Doc #:265-1 Filed: 01/17/13 Page 6 of The Bankruptcy Court shall have entered the First Sale Order (defined below) in accordance with Section and the Approval Order (defined below) in accordance with Section 8.3.2, and the Approval Order shall not have been stayed as of the Closing Date. 4.2 Conditions to Purchaser's Obligations. Purchaser's obligation to make the deliveries required of Purchaser at the Closing shall be subject to the satisfaction or waiver by Purchaser of each of the following conditions: All representations and warranties of Sellers contained in this Agreement shall continue to be true and correct at the Closing in all material respects, all covenants and obligations to be performed by Sellers prior to the Closing shall have been performed in all material respects and Sellers shall have certified the foregoing to Purchaser in writing Sellers shall have executed and delivered to Purchaser all of those documents, instruments and agreements required to be executed by Sellers to Purchaser under Section The Bankruptcy Court shall have entered the First Sale Order (defined below) in accordance with Section and the Approval Order in accordance with Section 8.3.2, and the Approval Order shall not have been stayed as of the Closing Date. For clarity, the obligation of Purchaser to purchase the Property hereunder shall not be subject to (a) the ability of Purchaser to obtain any financing, or (b) any due diligence. 4.3 Termination. Either or both parties, as applicable, may terminate this Agreement only under the circumstances set forth below: Sellers and Purchaser may terminate this Agreement by written mutual consent at any time prior to the Closing If a party materially breaches this Agreement, then the party who is not then in default hereunder may terminate this Agreement by delivering to the other written notice of termination Either Sellers or Purchaser may terminate this Agreement by written notice to the other if the Closing has failed to occur on or before the close of business on the Outside Date, as extended pursuant to Section 3.2 (or such later date as Sellers and Purchaser may agree upon in writing); provided, however, that neither Sellers nor Purchaser may terminate this Agreement by delivery of such notice of termination while such party is in breach or default of its obligations under this Agreement This Agreement shall terminate upon the closing of a sale of the Property to a Third-party Winning Bidder. 4.4 Break-Up Fee. Solely in the event that this Agreement is terminated pursuant to Section 4.3.4, Sellers shall pay to Purchaser a cash fee of 2.5% of the Purchase Price (the "Break Up Fee") upon the closing of a transaction with a Third-party Winning Bidder. 6

7 Case: swd Doc #:265-1 Filed: 01/17/13 Page 7 of Consequences of Termination If this Agreement is terminated under Section or 4.3.3, then all rights and obligations of the parties hereunder shall terminate without any liability of any party to any other party; provided, however, that Section relating to return of the Deposit shall survive such termination If this Agreement is terminated by Sellers under Section 4.3.2, then the Deposit Escrow Holder shall deliver the Deposit to Sellers If this Agreement is terminated by Purchaser under Section 4.3.2, then the Deposit Escrow Holder shall deliver the Deposit to Purchaser If this Agreement is terminated under Section 4.3.4, then the Deposit Escrow Holder shall deliver the Deposit to Purchaser, and Purchaser shall be entitled, subject to Section 8.3.1, to the Break-Up Fee as liquidated damages and as Purchaser's sole remedy in respect of such termination. 5. Sellers' Representations and Warranties. Sellers hereby make the following representations and warranties to Purchaser: 5.1 Validity of Agreement. Upon obtaining the Approval Order, this Agreement shall constitute the valid and binding obligation of Sellers enforceable in accordance with its terms. 5.2 Organization, Standing and Power. Sellers are a duly organized, validly existing and in good standing under their jurisdiction of organization. Subject to the applicable provisions of bankruptcy law, Sellers have all requisite corporate power and authority to own, lease and operate their properties, to carry on their businesses as now being conducted and, subject to Sellers obtaining the Approval Order, to execute, deliver and perform this Agreement and all writings relating hereto. 5.3 No Conflicts or Violations. Upon obtaining the Approval Order, the execution and delivery of this Agreement, the consummation of the transactions contemplated by this Agreement, and the performance of, fulfillment of and compliance with the terms and conditions of this Agreement by Sellers do not and will not: (i) conflict with or result in a breach of Sellers' articles of organization or operating agreements; (ii) violate any statute, law, rule or regulation, or any order, writ, injunction or decree of any court or governmental authority; or (iii) violate or conflict with or constitute a default under any agreement, or contract of any nature to which Sellers are a party or by which Sellers or their assets or properties are bound. 5.4 Title to Property. To Sellers' knowledge (which consists of matters actually known to Mr. Tyler Mayoras), Sellers have good and marketable title to the Property that is listed on Exhibit A, Exhibit B, Exhibit C, and Exhibit D; provided, however, Sellers makes no representation whatsoever as to the total tillable land or acreage included in the Real Property Leases. At the Closing, Purchaser will acquire all of Sellers' right, title and interest in and to all the Property, free and clear of any liens, claims or encumbrances, subject to Section

8 Case: swd Doc #:265-1 Filed: 01/17/13 Page 8 of Purchaser's Representations and Warranties. Purchaser hereby makes the following representations and warranties to Sellers: 6.1 Validity of Agreement. All action on the part of Purchaser necessary for the authorization, execution, delivery and performance of this Agreement by Purchaser, including, but not limited to, the performance of Purchaser's obligations under this Agreement, has been duly taken. This Agreement, when executed and delivered by Purchaser, shall constitute the valid and binding obligation of Purchaser enforceable in accordance with its terms. 6.2 Organization, Standing and Power. Purchaser is a corporation duly organized, validly existing and in good standing under its jurisdiction of organization. Purchaser has all requisite corporate power and authority to own, lease and operate its properties, to carry on its business as now being conducted and to execute, deliver and perform this Agreement and all writings relating hereto. 6.3 No Conflicts or Violations. The execution and delivery of this Agreement, the consummation of the transactions contemplated by this Agreement, and the performance of, fulfillment of and compliance with the terms and conditions of this Agreement by Purchaser do not and will not: (i) conflict with or result in a breach of Purchaser's articles of incorporation or by-laws; (ii) violate any statute, law, rule or regulation, or any order, writ, injunction or decree of any court or governmental authority; or (iii) violate or conflict with or constitute a default under any agreement, instrument or writing of any nature to which Purchaser is a party or by which Purchaser or its assets or properties may be bound. 6.4 Financing. Purchaser has sufficient funds available to consummate the transactions contemplated by this Agreement. "AS IS" Transaction. PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 5, SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER RELATING TO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, INCOME TO BE DERIVED OR EXPENSES TO BE INCURRED IN CONNECTION WITH THE PROPERTY, THE PHYSICAL CONDITION OF ANY PERSONAL PROPERTY COMPRISING A PART OF THE PROPERTY OR WHICH IS THE SUBJECT OF ANY OTHER LEASE OR CONTRACT TO BE ASSUMED BY PURCHASER AT THE CLOSING, THE ENVIRONMENTAL CONDITION OR OTHER MATTER RELATING TO THE PHYSICAL CONDITION OF ANY REAL PROPERTY OR IMPROVEMENTS WHICH ARE THE SUBJECT OF ANY REAL PROPERTY LEASE TO BE ASSUMED BY PURCHASER AT THE CLOSING, THE ZONING OF ANY SUCH REAL PROPERTY OR IMPROVEMENTS, THE VALUE OF THE PROPERTY (OR ANY PORTION THEREOF), THE TRANSFERABILITY OF PROPERTY, THE TERMS, AMOUNT, VALIDITY OR ENFORCEABILITY OF ANY ASSUMED LIABILITIES, THE TITLE OF THE PROPERTY (OR ANY PORTION THEREOF) THE MERCHANTABILITY OR FITNESS OF THE PERSONAL PROPERTY OR ANY OTHER PORTION OF THE PROPERTY FOR ANY PARTICULAR PURPOSE, OR ANY OTHER MATTER OR THING RELATING TO THE PROPERTY OR ANY PORTION THEREOF. WITHOUT IN ANY 8

9 Case: swd Doc #:265-1 Filed: 01/17/13 Page 9 of 18 WAY LIMITING THE FOREGOING, SELLERS HEREBY DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AS TO ANY PORTION OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER HAS CONDUCTED AN INDEPENDENT INSPECTION AND INVESTIGATION OF THE PHYSICAL CONDITION OF THE PROPERTY AND ALL SUCH OTHER MATTERS RELATING TO OR AFFECTING THE PROPERTY AS PURCHASER DEEMED NECESSARY OR APPROPRIATE AND THAT IN PROCEEDING WITH ITS ACQUISITION OF THE PROPERTY, EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 5, PURCHASER IS DOING SO BASED SOLELY UPON SUCH INDEPENDENT INSPECTIONS AND INVESTIGATIONS. ACCORDINGLY, PURCHASER WILL ACCEPT THE PROPERTY AT THE CLOSING "AS IS," "WHERE IS," AND "WITH ALL FAULTS." 8 Conduct and Transaction Prior to Closing. 8.1 Access to Records and Properties of Sellers. From and after the date of this Agreement until the Closing Date, Sellers shall, upon reasonable advance notice, afford to Purchaser's officers, independent public accountants, counsel, lenders, consultants and other representatives, reasonable access during normal business hours to the Property and all records pertaining to the Property or the Business. Purchaser, however, shall not be entitled to access to any materials containing privileged communications or information about employees, disclosure of which might violate an employee's reasonable expectation of privacy. Without limitation to the foregoing, Sellers shall use reasonable efforts to furnish to Purchaser such additional information related to the Real Property Leases within its reasonable control that may be reasonably requested by Purchaser, including the pivots and well pumps related to each such Real Property Lease, prior to the Auction. Purchaser shall have no right under this Agreement to conduct any environmental or other assessment of the Property other than visual inspection and document review. Purchaser expressly acknowledges that (i) Sellers do not own the property described in the Real Property Leases, (ii) access to the property described in the Real Property Leases is subject to the consent of the owners of such real property, and (iii) nothing in this Section 8.1 is intended to give rise to any contingency to Purchaser's obligations to proceed with the transactions contemplated by this Agreement. 8.2 Protection and Preservation of Property Pending Closing. Unless Purchaser otherwise consents, during the period prior to the Closing Date, Sellers shall use commercially reasonable efforts to protect and preserve all of the Property. 8.3 Bankruptcy Court Approvals Bankruptcy Court Approval of Sale Procedures. Sellers have filed a motion (the "Sale Motion") with the Bankruptcy Court requesting the entry of an order (the "First Sale Order") (i) authorizing the Sellers to enter into this Agreement, (ii) fixing the time and date of an auction (the "Auction") to be held at the Grand Rapids offices of Varnum LLP at which higher or better offers, including by Purchaser, may be presented to Sellers, (iii) providing for the acceptance by Sellers of a higher or better offer at the Auction, including by Purchaser, and if such higher or better offer is made by a party other than Purchaser and such third party is 9

10 Case: swd Doc #:265-1 Filed: 01/17/13 Page 10 of 18 subsequently approved by the Bankruptcy Court as the Winning Bidder (as defined below) (the "Third-party Winning Bidder," which phrase includes any accepted back up offer other than by Purchaser) and closes as provided by its terms, then Purchaser will be entitled to receive from Sellers a payment (not dependent on amounts actually expended or incurred by Purchaser) in Good Funds equal to the amount of the Break-Up Fee, which payment shall be made to Purchaser concurrently with the consummation of such third party sale solely from the proceeds of the sale to such third party (or back up third party), (iv) providing that no prospective purchaser will be permitted to bid at the Auction unless such party has been deemed "financially qualified" by the Sellers, (v) providing that no prospective purchaser who bids for the Property at the Auction shall be entitled to purchase the Property unless such prospective purchaser offers to purchase the Property for consideration which is at least $570,096 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) and otherwise on terms at least as favorable to Sellers as those set forth in this Agreement, (vi) providing that after any initial overbid of $570,096 or greater, all further overbids must be in increments of at least $100,000 and should overbidding take place, Purchaser shall have the right, but not the obligation, to participate in the overbidding and to be approved as the successful winning bidder at the Approval Hearing (as defined below) based upon any such overbid (the "Winning Bidder"); provided, however, that Purchaser or such third party that Sellers determine may, in its discretion if requested by Sellers, agree to be a back-up bidder (the "Back-Up Bidder") to any such Winning Bidder at the Purchase Price or such greater amount agreed to by Purchaser, (vii) fixing the time, date and location of a hearing (the "Approval Hearing") to approve the sale of the Property to the Winning Bidder and approving a Back-Up Bidder and (viii) providing that this Agreement will be approved by an Approval Order if there is no Third Party Winning Bidder or the Third Party Winning Bidder fails to timely close. If a Third-party Winning Bidder is approved at the Approval Hearing, then Purchaser shall deliver to such Third-party Winning Bidder all third party reports, studies and the like resulting from Purchaser's due diligence investigations. Sellers shall use reasonable efforts to obtain entry of the First Sale Order Bankruptcy Court's Approval of Sale. As part of the Sale Motion filed with the Bankruptcy Court, the Debtors have requested entry of an order (the "Approval Order") at the Approval Hearing that (i) approves the sale of the Property to the Winning Bidder (whether Purchaser or a third-party Winning Bidder) on the terms and conditions set forth in this Agreement and authorizes Sellers to proceed to consummate the sale as contemplated by this Agreement, (ii) includes a specific finding that the Winning Bidder is a good faith purchaser of the Property, (iii) provides that the sale of the Property to the Winning Bidder shall be free and clear of all liens, claims, lease or other interests and encumbrances whatsoever (except as expressly provided in this Agreement), including the interests of equipment lessors, all pursuant to Section 363 of the Bankruptcy Code and (iv) approves Sellers' assumption and assignment of the Real Property Leases (the "Section 365 Contracts") pursuant to Section 365 of the Bankruptcy Code. Notwithstanding anything to the contrary in this Agreement, in no event shall the Winning Bidder have the right to terminate this Agreement by reason of the failure to assign any of the Section 365 Contracts so long as the land subject to such unassigned Section 365 Contracts does not exceed 2,500 acres in the aggregate and, in such event, (a) this Agreement shall not constitute an agreement to assign or otherwise transfer any rights or obligations under any such unassigned Section 365 Contracts to the Winning Bidder (whether Purchaser or a third- 10

11 Case: swd Doc #:265-1 Filed: 01/17/13 Page 11 of 18 party Winning Bidder), (b) Sellers and the Winning Bidder (whether Purchaser or a third-party Winning Bidder) shall identify in good faith and exclude from this Agreement any Personal Property, including pivots, well pumps, piping, electric service and/or related equipment that supports operation of such pivots, related exclusively to such unassigned Section 365 Contracts, (c) this Agreement shall not constitute an agreement to sell, assign, transfer, convey or deliver any such excluded Personal Property to the Winning Bidder (whether Purchaser or a third-party Winning Bidder), and (d) the Purchase Price shall be reduced by Sellers and Purchaser in an amount equal to the mutually agreed upon value allocated to such excluded Personal Property. Sellers shall use reasonable efforts to obtain entry of the Approval Order and shall provide appropriate notice of the Approval Hearing to all parties with liens, claims, lease or other interests and encumbrances whatsoever, including equipment lessors, in the Property. In addition to the Cure Amounts, Sellers shall use reasonable efforts to cause the requisite notices to the Contract Counterparties to set forth a list of the pivots, well pumps, piping, electric service and related equipment that supports operation of the pivots related to each such Contract Counterparty's Real Estate Lease with a statement as to the Sellers' understanding of the ownership of such assets. Both the Winning Bidder's and Sellers' obligations to consummate the transactions contemplated by this Agreement shall be conditioned upon the Bankruptcy Court's entry of the Approval Order Contingent Assets. The inclusion of the Contingent Assets (as defined below) in the Property to be purchased and sold pursuant to this Agreement is expressly conditioned upon (a) the Approval Order approving the sale of such Contingent Assets to the Winning Bidder (whether Purchaser or a third-party Winning Bidder), and (b) entry of an order by the Bankruptcy Court in Case No (In re Michael D. Stamp) pending in the Bankruptcy Court ("Michael's Case"), which order is not stayed as of the Closing Date, whereby the sale of such Contingent Assets to the Winning Bidder (whether Purchaser or a third-party Winning Bidder) is approved. In the event that the foregoing conditions are not satisfied as of the Closing Date, then (i) this Agreement shall not constitute an agreement to sell, assign, transfer, convey or deliver any of the Contingent Assets to the Winning Bidder (whether Purchaser or a third-party Winning Bidder), (ii) the Purchase Price shall be reduced by $340, to $22,463,822.00, and (iii) the Closing shall proceed, subject to the other terms and conditions of this Agreement. For purposes of this Section 8.3.3, the term "Contingent Assets" means Cat 938H Wheel Loader (S/N MJC00104), Cat 320DL Excavator (S/N PHX01500), Cat 320DL Excavator (S/N PHX00201), and Cat D5G4L Track-type Tractor (S/N WGB01974). 8.4 Further Actions. Purchaser and Sellers each agree to use all commercially reasonable efforts to take all actions and to do all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement by the expected Closing Date Territorial Road Assets. Purchaser may seek to acquire the real property and improvements located at Territorial Rd., Decatur, Michigan, including, without limitation, pole buildings, sheds, and grain bins (collectively, the "70358 Territorial Road Assets"). Sellers shall not object to the sale of the Territorial Road Assets to Purchaser or any third-party Winning Bidder, if applicable, for a purchase price of not less than $825, so long as Sellers are not liable for any deficiency claim by any secured creditor with respect to such assets; provided, however, that Purchaser acknowledges and understands that (a) certain of 11

12 Case: swd Doc #:265-1 Filed: 01/17/13 Page 12 of 18 the Territorial Road Assets are not legally titled in the name of Sellers and may be property of the estate of Michael's Case, and (b) appropriate orders from the Bankruptcy Court in the Cases and in Michael's Case for the sale of the Territorial Road Assets pursuant to Section 363 of the Bankruptcy Code may be required to effectuate such sale. Sellers will cooperate with filing any necessary motions to effectuate such sale in the Cases, and will not object to any such sale in Michael's Case, provided that Purchaser shall be responsible for its costs related to seeking such relief. 9. Post-Closing Covenants. 9.1 Post-Closing Maintenance of and Access to Information. Without limiting Sellers' rights under Section 11.2 with respect to the Case, Purchaser will also comply with the following provisions: (a) The parties acknowledge that after Closing, Sellers or their successors may need access to information or documents in Purchaser's control or possession for the purposes of concluding the transactions contemplated by this Agreement, preparing or filing tax returns or responding to audits, Contracts and to satisfy other legal requirements, and to prosecute or defend third party claims. (b) Purchaser shall not dispose of or destroy any of the records and files related to the Property prior to the fourth anniversary of the Closing Date. If Purchaser wishes to dispose of or destroy such records and files after that time, then it shall first give sixty (60) days' prior written notice to Sellers, and Sellers shall have the right, at their option and expense, upon prior written notice to Purchaser within such sixty (60) day period, to take possession of the records and files within ninety (90) days after the date of Sellers' notice. (c) Upon reasonable written request, Purchaser shall cooperate fully in connection with, and make available for inspection and copying by, Sellers, their successors, and their respective employees, agents, counsel and accountants and/or governmental authorities, books, records, documents, and other information to the extent reasonably necessary to facilitate the purposes set forth in subsection (a) above and for other legitimate corporate purposes. In addition, Purchaser shall reasonably cooperate with, and shall permit and use its best efforts to cause its former and present directors, officers and employees to cooperate with Sellers on and after Closing in furnishing information, evidence, testimony and other assistance in connection with any action, proceeding, arrangement or dispute of any nature with respect to the Business or the Property and pertaining to periods prior to the Closing Date. (d) Sellers shall be entitled to retain any records that relate to events or periods prior to Closing for purposes of pending litigation involving matters to which such records refer. 9.2 Certificates of Title and Application for Title. As soon as reasonably practicable after the Closing, Sellers shall use reasonable efforts to (a) deliver to Purchaser, for any Property covered by a certificate of title, the certificate of title (duly signed by the Sellers and any secured 12

13 Case: swd Doc #:265-1 Filed: 01/17/13 Page 13 of 18 party listed on such title) and application for title providing for transfer to Purchaser, and (b) assist in transferring such titles to Purchaser. 10. Public Announcements. Except as required in connection with the Case and seeking entry of the Approval Order, prior to the Closing, Purchaser will not issue, or permit any of its (or their respective) officers, agents or affiliates to issue, any press release or otherwise make, or permit any of their respective officers, agents or affiliates to make, any public or other statements, with respect to this Agreement and the transactions contemplated by this Agreement without the prior written consent of the other party or as (and to the extent) required by applicable law. 11. Miscellaneous Attorneys' Fees. If either party brings an action or other proceeding to enforce or interpret the terms and provisions of this Agreement, then the prevailing party in that action or proceeding shall be entitled to have and recover from the non-prevailing party all fees, costs and expenses (including, without limitation, all court costs and reasonable attorneys' fees) as the prevailing party may suffer or incur in the pursuit or defense of such action or proceeding Reasonable Access to Records and Certain Personnel. So long as the Case is pending, (i) Purchaser shall permit Sellers' counsel and other professionals employed in the Case reasonable access to the financial and other books and records relating to the Property (whether in documentary or data form) for the purpose of administering the Case (including, without limitation, the pursuit of any avoidance, preference or similar action and the filing and prosecution of any insurance claim), which access shall include (a) the right of such professionals to copy, at Sellers' expense, such documents and records as they may request in furtherance of the purposes described above, and (b) Purchaser's copying and delivering to Sellers or their professionals such documents or records as they may request, but only to the extent Sellers or their professionals furnish Purchaser with reasonably detailed written descriptions of the materials to be so copied and Sellers reimburses Purchaser for the reasonable costs and expenses thereof, and (ii) Purchaser shall provide Sellers and their professionals (at no cost to Sellers) with reasonable access to various personnel to whom Sellers will need continued access post-closing during regular business hours to assist Sellers in the continuing administration of the Case, provided that such access does not unreasonably interfere with Purchaser's business operations Notices. Unless otherwise provided in this Agreement, any notice, tender, or delivery to be given under this Agreement by either party to the other may be effected by personal delivery in writing, or by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed communicated as of the date of mailing. Mailed notices shall be addressed as set forth below, but each party may change its address by written notice in accordance with this paragraph. Mailed notices shall be effective on the date of delivery or two (2) business days after mailing if delivery is refused. 13

14 Case: swd Doc #:265-1 Filed: 01/17/13 Page 14 of 18 To Sellers: With a copy to: To Purchaser: With a copy to: Stamp Farms, LLC c/o O'Keefe & Associates LLC 120 S. LaSalle Street, Suite 1300 Attn: Tyler Mayoras Chicago, IL Phone: tmayoras@okeefellc.com Varnum LLP P.O. Box 352 / 333 Bridge Street, N.W. Grand Rapids, MI Attn: Peter G. Roth Phone: pgroth@varnumlaw.com Boersen Farms, Inc Ransom Street Zeeland, MI Attn: Dennis Boersen Cunningham Dalman, PC 321 Settlers Road PO Box 1767 Holland, MI Attn: Ronald J. Vander Veen To Deposit Escrow Holder: Varnum LLP P.O. Box 352 / 333 Bridge Street, N.W. Grand Rapids, MI Attn: Michael McElwee Phone: msmcelwee@varnumlaw.com 11.4 Entire Agreement. This Agreement and the documents to be executed pursuant to this Agreement contain the entire agreement between the parties relating to the sale of the Property. Any oral representations or modifications concerning this Agreement or any such other document shall be of no force and effect excepting a subsequent modification in writing, signed by the party to be charged Modification. This Agreement may be modified, amended or supplemented only by a written instrument duly executed by all the parties to this Agreement Closing Date. All actions to be taken on the Closing Date pursuant to this Agreement shall be deemed to have occurred simultaneously, and no act, document or 14

15 Case: swd Doc #:265-1 Filed: 01/17/13 Page 15 of 18 transaction shall be deemed to have been taken, delivered or effected until all such actions, documents and transactions have been taken, delivered or effected Severability. Should any term, provision or paragraph of this Agreement be determined to be illegal or void or of no force and effect, the balance of this Agreement shall survive except that, if Purchaser cannot acquire and Sellers cannot sell substantially all of the Property, then either party may terminate this Agreement, and it shall be of no further force and effect, unless both parties agree in writing to the contrary Captions. All captions and headings contained in this Agreement are for convenience of reference only and shall not be construed to limit or extend the terms or conditions of this Agreement Further Assurances. Each party to this Agreement will execute, acknowledge and deliver any further assurance, documents and instruments reasonably requested by any other party to this Agreement for the purpose of giving effect to the transactions contemplated by this Agreement or the intentions of the parties with respect thereto Waiver. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver Payment of Fees and Expenses. Each party to this Agreement shall be responsible for, and shall pay, all of its own fees and expenses, including those of its counsel, incurred in the negotiation, preparation and consummation of this Agreement and the transaction described herein Survival. Except for the covenants and agreements specifically to be performed after the Closing Date, none of the respective representations, warranties, covenants and agreements of Sellers and Purchaser herein, or in any certificates or other documents delivered prior to or at the Closing, shall survive the Closing, and Purchaser shall have no claims against the Sellers with respect to such representations, warranties, covenants and agreements after the Closing (except for the enforcement of covenants and agreements specifically to be performed after the Closing Date) Assignments. This Agreement shall not be assigned by either party without the prior written consent of the other party, except that the rights of Purchaser hereunder may be assigned prior to the Closing, without the consent of Sellers, to any affiliate of Purchaser, provided that (a) the assignee shall assume in writing all of Purchaser's obligations hereunder and (b) Purchaser shall not be released from any of its obligations hereunder by reason of such assignment Binding Effect. Subject to the provisions of Section 9.15, this Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors, and assigns of the parties to this Agreement. 15

16 Case: swd Doc #:265-1 Filed: 01/17/13 Page 16 of Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Michigan Good Faith. All parties to this Agreement agree to do all acts and execute all documents required to carry out the terms of this Agreement and to act in good faith with respect to the terms and conditions contained in this Agreement before and after Closing Construction. In the interpretation and construction of this Agreement, the parties acknowledge that the terms of this Agreement reflect extensive negotiations between the parties and that this Agreement shall not be deemed, for the purpose of construction and interpretation, drafted by either party to this Agreement Counterparts. This Agreement may be signed in counterparts. The parties further agree that this Agreement may be executed by the exchange of facsimile signature pages Time is of the Essence. Time is of the essence in this Agreement, and all of the terms, covenants and conditions hereof Tax Effect. None of the parties (nor such parties' counsel or accountants) has made or is making in this Agreement any representation to any other party (or such party's counsel or accountants) concerning any of the tax effects or consequences on the other party of the transactions contemplated by this Agreement. Each party represents that it has obtained, or may obtain, independent tax advice with respect to the transactions contemplated by this Agreement and upon which it, if so obtained, has solely relied Confidentiality Agreement. Except as provided herein, the Confidentiality Agreement dated as of November 19, 2012, between Purchaser and Sellers (the "Confidentiality Agreement") shall remain in full force and effect during the term specified therein Bankruptcy Court Jurisdiction. PURCHASER AND SELLERS AGREE THAT THE BANKRUPTCY COURT SHALL HAVE EXCLUSIVE JURISDICTION OVER ALL DISPUTES AND OTHER MATTERS RELATING TO (i) THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT OR ANY ANCILLARY DOCUMENT EXECUTED PURSUANT TO THIS AGREEMENT, AND/OR (ii) THE PROPERTY AND/OR ASSUMED LIABILITIES, AND PURCHASER EXPRESSLY CONSENTS TO AND AGREES NOT TO CONTEST SUCH EXCLUSIVE JURISDICTION Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE ACTIONS OF THE PARTIES HERETO PURSUANT TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF. 16

17 Case: swd Doc #:265-1 Filed: 01/17/13 Page 17 of No Third Party Beneficiary. This Agreement is not intended to confer upon any person not a party to this Agreement (or their successors and permitted assigns) any rights or remedies hereunder. [Signature Page Follows] 17

18 Case: swd Doc #:265-1 Filed: 01/17/13 Page 18 of 18 JAN/16/2013/WED 07:46 PM Boersen Farms FAX No P. 004 IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase Agreement as of the day andyearfirst abov^ vmtten. PoTchaseft BOSRSEN FARMS, INC., a Michigan corporation Demiis Boersen Its: Treastirer Sellers: STAMP FARMS, LX.C., a Michigan limited liability company STAMP FARMS mijcp^.qi LX;.C. a Michigan limited liability Company STAMP FARMS CUSTOM AG. LX.C, a iviichigah limited liability company ROYAL STARFA^S.LX.C., a Michigan limited liability company Its: Chief Restnlcturiag Officer and Manager By: Its: 1>hi hi