EXHIBIT 10(h)(i)
LEASE AND PURCHASE AGREEMENT
THIS LEASE AND PURCHASE AGREEMENT (this "Agreement") is entered into as
of this 31st day of October, 1996, among Cali Orchids, Inc. ("Cali"), a
corporation organized and existing under the laws of the Commonwealth of Puerto
Rico; Xxxx Xxxxxxxx, of legal age, married and resident of Barranquitas, Puerto
Rico ("Xxxxxxxx") (Cali and Xxxxxxxx are hereinafter sometimes jointly referred
to as "Lessors"); and Xxxxx Nursery Farms, Inc. ("Lessee"), a corporation
organized and existing under the laws of the State of Florida and authorized to
do business in the Commonwealth of Puerto Rico,
WITNESSETH:
WHEREAS, Lessors own and operate certain lands with a developed nursery
constructed thereon located in Barrio Quebradillas, Barranquitas, Puerto Rico
described in Exhibits X-0, X-0 and A-3 attached hereto (the "Farm"); and
WHEREAS, Cali owns certain furniture, fixtures, equipment and other
tangible personal property utilized in the operation of the Farm (collectively
the "Personal Property"), including but not limited to the items listed in
Exhibit B attached hereto; and
WHEREAS, Cali owns certain live goods inventory and inventory of pots,
peat, soil, chemical and fertilizers (collectively the "PURCHASE ASSETS"), as
described in Exhibit C attached hereto; and
WHEREAS, Cali represents and warrants that it has the legal right and
the corporate power and authority, as described in the Certificate of Corporate
Resolution of the Board of Directors of Lessors, attached hereto as Exhibit D,
to enter into this Agreement
and transfer and convey unto Lessee the rights and privileges herein granted;
and
WHEREAS, Lessee desires to lease the Farm and the Personal Property
(collectively the "LEASE ASSETS") and to purchase the PURCHASE ASSETS, and
Lessors have agreed to the same on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto covenant and agree
as follows:
1. LEASE OF THE LEASE ASSETS. Subject to the terms and conditions set
forth herein, Lessors hereby lease, demise and let to Lessee the LEASE ASSETS
for an initial term of five (5) years, commencing on January 1, 1997 and ending
on December 31, 2001.
2. EXTENSIONS OF LEASE TERM. The term of this Agreement shall be
automatically extended (I.E. without notice given by Lessee) for two (2)
successive periods of five (5) years, unless Lessee shall give written notice to
Lessors of its intention NOT TO EXTEND THE TERM of this Agreement not later than
six (6) months prior to the date on which such extension term is scheduled to
commence. Each extension of the Agreement shall be on the same terms and
conditions as set forth herein, except for the rent, which shall be as set forth
below in Paragraph 3 hereof.
3. MONTHLY RENT OF LEASE ASSETS. Lessee agrees to pay total rent to
Lessors (80% to Cali and 20% to Xxxxxxxx) monthly in advance no later than the
tenth (10th) day of each month as follows:
(a) INITIAL TERM.
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(i) Rent shall be in the amount of FOUR THOUSAND FIVE HUNDRED
DOLLARS ($4,500.00) per month thru December 31, 1997;
(ii) For the period commencing January 1, 1998 thru December 31,
2001, in the amount of FIVE THOUSAND DOLLARS ($5,000.00) per month;
(b) FIRST EXTENSION TERM.
For the first extension term from January 1, 2002 thru December
31, 2006, in the amount of SIX THOUSAND DOLLARS ($6,000.00) per month; and
(c) SECOND EXTENSION TERM. For the second extension term from
January 1, 2007 thru December 31, 2011, in the amount of SEVEN THOUSAND DOLLARS
($7,000.00) per month.
4. SPECIAL PROVISIONS: EMPLOYMENT OF XXXX XXXXXXXX, PURCHASE OF
PURCHASE ASSETS, CONSTRUCTION OF LEASEHOLD IMPROVEMENTS, MORTGAGE OF LEASEHOLD
ASSETS.
(a) As an essential condition of this Agreement, Xxxxxxxx shall
execute the form of Employment Letter Agreement with Lessee attached hereto as
Exhibit E, provided, however, that this Agreement shall remain in full force and
effect regardless of any subsequent termination of Xxxxxxxx'x employment by
Lessee for any reason whatsoever.
(b) On our about December 14, 1996, the parties agree to conduct a
physical inventory of all PURCHASE ASSETS. Based on such inventory and the
condition of the same, the parties will agree upon a price to be paid by the
Lessee for the live goods inventory. With respect to all other Purchase Assets
which are in
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usable and/or marketable condition, Lessee agrees to purchase the same at the
lower of Cali's cost as documented from Cali's books and records or the fair
market value thereof. Lessee reserves the right to reject any of the Purchase
Assets which, in Lessee's judgment, are not currently usable or marketable and
Lessor shall be free to sell such Assets and any others as to which Lessor and
Lessee cannot agree on price to third parties. Payment for all Purchase Assets
will be made in three (3) equal installments on January 31, 1997, March 31, 1997
and June 30, 1997.
(c) Lessors hereby agree that Lessee may construct improvements on
the Farm subject to Lessors prior written approval. Lessee shall submit to
Lessors for their review and approval, all plans specifications and drawings for
any permanent improvements on the farm. Upon termination of this Lease
Agreement, all improvements shall become the property of the Lessors.
(d) Lessors jointly and severally agree that they will not without
the prior written consent of Lessee mortgage or otherwise further encumber the
Farm or the Personal Property which is the subject of this Agreement, and
further that in the event Lessee shall consent to the same, the terms of such
mortgage or other security instrument will include notice to Lessee of any
default by Lessors in their obligation to the mortgagee with a right in Lessee
to cure such default and to recover from Lessors any amounts paid in connection
therewith, which may be satisfied by rent abatement. Lessors shall, however,
have the right to refinance the existing indebtedness on the Farm without
Lessee's prior written consent provided the corresponding mortgage or security
instrument will include a default notice to Lessee as provided herein.
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5. REPRESENTATIONS AND WARRANTIES OF LESSORS. Lessors represent and
warrant to Lessee, as follows:
(a) ORGANIZATION AND GOOD STANDING OF LESSORS. Cali is a corporation
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Puerto Rico.
(b) POWER AND AUTHORITY. Cali has the corporate power and authority
to transfer and convey the LEASE ASSETS and to sell the PURCHASE ASSETS and to
assume the obligations to be performed by it hereunder.
(c) BINDING EFFECT. This Agreement and the other documents executed
or required to be executed by Lessors in connection with this Agreement are or
will be, when executed and delivered, the legal, valid and binding obligations
of Lessors, enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or other laws affecting the
enforcement of creditor's rights generally and will be subject to general
principles of equity in the event equitable remedies are sought.
(d) TITLE TO LEASE ASSETS AND THE PURCHASE ASSETS. Lessors have
legal, good and marketable title to the LEASE ASSETS and the PURCHASE ASSETS.
The LEASE ASSETS and the PURCHASE ASSETS are owned free and clear of any lien,
claim or encumbrance except for the existing mortgages with Farm Credit and the
Farmers' Home Administration, and that portion of the Lease Assets which is
owned by Xxxxxxxx is his separate, private property and is not an asset of his
marital partnership.
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(e) NO VIOLATION OF ANY INSTRUMENT. Lessors are not in violation of
or default under, nor has any event occurred that, with or without the giving of
notice, lapse of time or the occurrence of any other event, would:
(i) Result in the imposition of a lien, claim, or encumbrance
upon any of the LEASE ASSETS or the PURCHASE ASSETS pursuant to any agreement or
instrument to which either Lessor is a party or is bound, or to which the LEASE
ASSETS and the PURCHASE ASSETS are subject; or
(ii) Constitute a violation of, or result in the imposition of a
lien, claim, or encumbrance upon the LEASE ASSETS or the PURCHASE ASSETS
pursuant to, any law, judgment, order, injunction, or decree to which either
Lessor is a party or is bound, or to which the LEASE ASSETS or the PURCHASE
ASSETS are subject.
(f) LITIGATION AND CLAIMS. Neither Lessor is a party to, nor are the
LEASE ASSETS nor the PURCHASE ASSETS the subject of or affected by, any pending
or threatened suit, claim, action, or litigation with any party or any
administrative, arbitration, or other governmental proceeding, investigation or
inquiry. There are no proceedings threatened or contemplated, or any unasserted
claims (whether or not the potential claimant may be aware of the claim) which
might, severally or in the aggregate, adversely affect the LEASE ASSETS or the
PURCHASE ASSETS.
(g) NECESSARY APPROVALS AND CONSENTS. No authorization, consent,
permit or license or approval of, or declaration, registration or filing with,
any person or governmental or regulatory authority or agency is necessary for
(i) the execution and delivery by Lessors of this Agreement and the other
agreements
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executed or required to be executed by Lessors in connection with this
Agreement, or (ii) the consummation by Lessors of the transactions contemplated
by this Agreement.
(h) ACCURACY OF INFORMATION FURNISHED. No representation or warranty
made by Lessors in this Agreement or in the negotiation of this Agreement
contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not false or misleading.
(i) SURVIVAL OF REPRESENTATIONS. The representations and warranties
made within this Agreement are correct in all material respects and said
representations and warranties shall survive the signing of this Agreement for a
period of one (1) year.
(j) NO BROKERS. Lessors have had no dealings with any broker, sales
person, finder or agent in connection with this Agreement. Lessors covenant to
pay, hold harmless, indemnify and defend Lessee, its agents and employees, from
and against any and all claims, costs, expenses, including attorney's fees, or
liability for any compensation, commissions, fees and charges claimed by any
broker or agent with respect to the transactions contemplated under this
Agreement.
(k) ENVIRONMENTAL COMPLIANCE - NON CONTAMINATION. To the best of
Lessors' knowledge, Lessors are and have been in compliance with all applicable
environmental laws and regulations in the operation of the LEASE ASSETS. To the
best of Lessors' knowledge, there is no condition or circumstance on the Farm or
adjacent lands which has or may result in contamination of water, land or air on
the Farm or said adjacent lands.
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(l) RELIANCE. The foregoing representations and warranties are made
by Lessors with the knowledge and expectation that Lessee is placing complete
reliance thereon.
6. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and
warrants to Lessors as follows:
(a) ORGANIZATION AND GOOD STANDING OF LESSEE. Lessee is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida and authorized to do business in the Commonwealth of
Puerto Rico.
(b) POWER AND AUTHORITY. Lessee has the corporate power and
authority to lease the LEASE ASSETS and purchase the PURCHASE ASSETS and to
assume the obligations to be performed by it hereunder.
(c) BINDING EFFECT. This Agreement and the other documents executed
or required to be executed by Lessee in connection with this Agreement are or
will be, when executed and delivered, the legal, valid and binding obligations
of Lessee, enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or other laws affecting the
enforcement of creditor's rights generally and will be subject to general
principles of equity in the event equitable remedies are sought.
(d) NECESSARY APPROVALS AND CONSENTS. No authorization, consent,
permit or license or approval of, or declaration, registration or filing with,
any governmental or regulatory authority or agency is necessary for the
execution and delivery by Lessee of this Agreement and the other agreements
executed or
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required to be executed by Lessee in connection with this Agreement or for the
consummation by Lessee of the transactions contemplated by this Agreement.
7. MAINTENANCE OF LEASE ASSETS.
(a) Subject to subparagraph (c) below Lessee shall at all times keep
the LEASE ASSETS in good repair and order, provided Lessee may replace and
renew, with like kind and quality, any of the LEASE ASSETS which may become too
worn to be repaired, so that, at all times, the LEASE ASSETS shall be in good
order.
(b) Upon termination of this Agreement for any reason whatsoever,
Lessee shall return the LEASE ASSETS in the same condition when received,
ordinary wear and tear excepted. All improvements, fixtures, alterations, or
additions will be left at Lessors' option to be transferred and become the
property of Lessors; provided, however, that all inventory of Lessee located on
the Farm shall remain the property of Lessee.
(c) Lessee shall not be responsible for the loss or destruction of
the Farm due to acts of God or natural disaster. If, during the term of this
Agreement, the Farm is totally or partially inaccessible or unusable, and if at
that time Xxxxxxxx is employed by Lessee as General Manager of the Farm, the
Lessors shall, within six (6) months of the date of casualty, restore the Farm
to substantially the same condition as immediately before the destruction,
whether or not insurance proceeds are sufficient to cover the actual cost of
restoration. Provided, that in such event, Lessors shall only be responsible for
restoring those structures which were built prior to January 1, 1997. Such
destruction shall not terminate this Lease Agreement, but the rent due hereunder
shall be totally or partially abated until the later
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of restoration of the Farm to its previous condition or resumption by Lessee of
full operations. Any period during which rent is partially or totally abated
shall be added to the lease period during which the destruction occurs and
appropriate adjustments shall be made to the termination date of said period and
the commencement and termination dates of each of the renewal terms. If Xxxxxxxx
is not employed by Lessee as General Manager of the Farm at the time of the
casualty, the Lessee shall be responsible for restoring the structures at the
Farm to their original condition, regardless, of when such structures were
built.
8. INSURANCE. Throughout the term of this Agreement, the Lessee shall
maintain in full force comprehensive general public liability insurance against
claims for bodily injury, death, or property damage, occurring on, in or about
the Farm, and the adjoining and related parking areas, streets, sidewalks and
passageways, such insurance to provide limits of no less than THREE MILLION
DOLLARS ($3,000,000.00) per person, THREE MILLION DOLLARS ($3,000,000.00) per
occurrence, and ONE MILLION DOLLARS ($1,000,000.00) for property damage. The
policy shall name the Lessors as insured parties. The Lessee shall deliver to
the Lessors certificates of insurance certifying that such insurance is in full
force and effect and in the amounts set forth herein.
9. UTILITIES AND TAXES.
(a) Lessee shall pay for all water, light and power consumed on the
Farm during the term of this Agreement or any extension thereof, as well as for
any other charge or assessment for public services provided to or for the
benefit of the Farm.
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(b) All real and personal property taxes on the LEASE ASSETS will be
paid during the term of this Agreement and all extensions by Lessors.
10. QUIET ENJOYMENT.
(a) Subject to the provisions of subparagraph (b) below, the Lessors
covenant that the Lessee, on paying the rent and performing all of its
obligations hereunder, shall peacefully and quietly have, hold and enjoy the
LEASE ASSETS throughout the term of this Agreement without hindrance, ejection
or disturbance by any person(s) claiming under the Lessors. The Lessors, in
addition, expressly agree and covenant that should the Lessors decide at any
time during the term of this Agreement to sell or mortgage the Farm or any part
thereof, the Lessors shall require from the buyer or mortgagee that this Lease
be honored under the exact terms and conditions hereof by such buyer or
mortgagee.
(b) The Lessors retain the following rights and/or Lessee agrees to
the following restrictions regarding use of the Farm:
(i) Xxxxxxxx and his family shall have the right to pass through
the Farm's main road to gain access to Xxxxxxxx'x home on an adjacent parcel.
Xxxxxxxx'x guests shall, however, use the secondary road which also passes
through the Farm;
(ii) Lessors retain the exclusive right to use the residential
property (CASITA) located on the Farm and to maintain the aviary construction
adjacent thereto;
(iii) Lessors retain the right to draw water from the three deep
xxxxx on the Farm for their personal and business use on adjacent properties;
and
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(iv) Lessee will not utilize or in any manner disturb or do
anything to affect the lake on the Farm.
11. TRANSFER OF AGREEMENT. Lessee may not assign this Agreement or
sublease the LEASE ASSETS in whole or in part without the prior written consent
of Lessors, which shall not be unreasonably withheld.
12. EVENTS OF DEFAULT. The following shall be considered events of
default hereunder:
(a) Non-payment by Lessee of any installment of the stipulated rent
on the date specified herein;
(b) Non-compliance by Lessee with any of the terms and covenants of
this Agreement after notice in writing of such non-compliance has been given by
Lessors to Lessee and the same remains uncorrected for thirty (30) days
thereafter, or, if such default shall not be curable within a period of thirty
(30) days after the date of such notice, if Lessee shall have failed within such
thirty (30) day period to begin and actively proceed in good faith, with the
curing of such default;
(c) Lessee shall permanently vacate, desert or abandon the LEASE
ASSETS;
(d) The levy of an attachment or other order to secure the
effectiveness of judgment, or the levy of execution, upon the LEASE ASSETS, or
upon the Agreement, in any proceeding pending against Lessee in any court of
competent jurisdiction, unless such attachment, order, or execution be
discharged by bond or otherwise not later than thirty (30) days counted from the
date upon which Lessee shall have received notice thereof;
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(e) The mere filing by Lessee, or by any creditor of Lessee, in any
court of competent jurisdiction of any voluntary or involuntary proceedings
permitted under the Federal or Commonwealth bankruptcy laws then in force, as
the case may be, unless the same has been dismissed or set aside within one
hundred twenty (120) days after the date of filing thereof, provided that no
default shall exist if Lessee continues to comply with the terms hereof after
such filing.
Upon the happening of any such event of default, and once the period of
grace established in each case for the correction thereof has elapsed without
such default having been corrected by Lessee, this Agreement shall be
automatically terminated as of the date on which the act of default occurred.
Upon such termination Lessors may immediately re-enter the LEASE ASSETS and
recover possession thereof without legal proceeding or through any legal
proceeding available to it and Lessee shall be liable to Lessor for the rent
payable during the remaining term of this Agreement and the damages caused to
Lessor by such default.
In the event that Lessors are forced to seek the relief of a court of
law to compel Lessee, its successors, officials or directors to comply with the
terms of this Agreement, Lessee assumes the obligation to pay reasonable
attorney's fees to Lessors to cover the legal fees of such legal action upon a
final unappealable determination by such court of law or appellate court that
Lessee has defaulted in its performance of this Agreement.
13. NOTICES. All notices herein required or permitted to be given to or
served upon, either party, shall be in writing. Any such notice shall be
sufficiently given or served if served personally or by mail on agent of such
party at its address set
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forth below, or at such other address as it shall designate in a notice to the
other party in accordance with this section.
IN CASE OF NOTICE TO CALI:
Cali Orchids, Inc.
Xxxx. 000, Xx. 7.6
Barrio Quebradillas
Sector Las Orquideas
Barranquitas, Puerto Rico 00794
Attention: Xx. Xxxxxxx X. Xxxxxxx
IN CASE OF NOTICE TO LESSEE:
Xxxxx Xxxxxxx Xxxxx, Xxx.
Xxxx. 000, Xx. 5.8
Xxxx Xxxx, Puerto Rico 00762
Attention: Xx. Xxxxxxx X. Xxxxxxx
IN CASE OF NOTICE TO XXXX XXXXXXXX:
x/x Xxxx Xxxxxxx, Xxx.
Xxxx. 000, Xx. 7.6
Barrio Quebradillas
Sector Las Orquideas
Barranquitas, Puerto Rico 00794
Each party may designate by notice in writing a new address to which
any communication may thereafter be so given, served or sent. Each notice or
communication that is mailed or delivered in the manner described above shall be
deemed given at such time as it is delivered to the addressee (with the return
receipt, the delivery receipt or the affidavit of messenger being deemed
conclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
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14. GREENHOUSE IRRIGATION SYSTEM
Lessors represent that the irrigation system for the greenhouses
presently at the Farm are in working condition. Lessee has inspected such system
and is satisfied with its present condition. This system will be maintained in
accordance with section 7(a) of this Agreement.
15. CONSTRUCTION OF SHADE HOUSE
Lessee shall have the right to build a shade house on the Farm. Lessor
hereby allows Lessee to use the foundations presently on site on an as is basis.
16. WAIVER. No waiver of any condition or covenant of this Agreement by
either party shall be deemed to imply or constitute a further waiver of such
party of the same or any other condition or covenant.
17. CONDEMNATION. If the LEASE ASSETS or any substantial part thereof
is taken by or pursuant to Governmental authority or through the exercise of the
right of eminent domain, and the balance remaining is, in the opinion of Lessee,
not suitable for the purposes for which Lessee intends to use said LEASE ASSETS,
or in the event Lessee's use of the LEASE ASSETS is restricted or
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prohibited by reason of any law, ordinance, injunction, regulation or order of
any properly constituted authority, then and in any such event, Lessee shall
have the right, at its option, to terminate this Agreement by giving thirty (30)
days written notice of its intention so to do to Lessors and Lessee shall
thereupon be relieved from all liability hereunder. If part of the LEASE ASSETS
is so taken, Lessee shall have the option to retain the balance of the LEASE
ASSETS under the terms of this Agreement, in which case there will be a
reduction of rent in proportion to the property taken. If the Agreement is
terminated pursuant to the provisions of this clause, Lessors will not be liable
to pay any indemnification to Lessee without prejudice to Lessee's rights to a
condemnation award against the Government.
18. RECORDATION OF AGREEMENT. Lessors and Lessee have agreed that
Lessee, at its option, may record this Lease Agreement in the Registry of
Property for Barranquitas and Lessors agree to cooperate with Lessee to cause
the provisions of this Agreement which pertain to the lease of the Farm to be
re-executed in recordable deed form. In the event Lessee chooses to record this
Lease Agreement, all fees and expenses in the preparation and recordation of
such deed of lease and its cancellation shall be for the account of Lessee and
all documents necessary to effect the same shall be executed before a Notary
Public designated by Lessee.
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19. APPLICABLE LAWS. This Agreement shall be governed by, and performed
and interpreted in accordance with the laws of the Commonwealth of Puerto Rico.
20. XXXXXXXX GUARANTEE. Xxxx Xxxxxxxx represents and warrants to Lessee
that he is the sole stockholder of Cali Orchids, Inc. and jointly and severally
guarantees the performance by Cali of each and every one of its obligations
hereunder.
21. ARBITRATION. Any controversy which shall arise between or among the
Lessors, Xxxx Xxxxxxxx and the Lessee regarding the rights, duties or
liabilities hereunder of any party shall be settled by arbitration. Such
arbitration shall be before one (1) disinterested arbitrator if one be agreed
upon, otherwise before three (3) disinterested arbitrators, one named by the
Lessors, one by the Lessee, and one by the two (2) thus chosen. The arbitrator
or arbitrators shall settle the controversy in accordance with the provisions of
this Agreement and the laws of the Commonwealth of Puerto Rico.
22. RIGHT OF FIRST REFUSAL. Should either Lessor desire to sell the
subject LEASE ASSETS, or any of them, Lessee shall have the right of first
refusal to purchase, which right shall be exercised within thirty (30) days of
receipt by Lessee of a copy of
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a BONA FIDE offer made by a third party. Lessee's purchase shall be on the same
terms as the said BONA FIDE offer.
23. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the parties and may not be changed, altered, amended or modified except in
writing, signed by both parties.
24. NONDISCLOSURE. Lessors agree not to disclose the terms of this
Agreement except as may be agreed to in writing by Lessee. All press releases
and other communications relating to this Agreement shall be made exclusively by
Lessee.
25. SEVERABILITY. The parties hereto intend all provisions of this
Agreement to be enforced to the fullest extent permitted by law. Accordingly,
should a court of competent jurisdiction determine that the scope of any
provision is too broad to be enforced as written, the parties intend that the
court should reform the provision to such narrower scope as it determined to be
enforceable. If, however, any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future law, such provision shall be
fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision were never a part hereof; and the
remaining provisions of this Agreement shall remain in full force and effect
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and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance.
26. SUCCESSORS, ASSIGNS, ETC. This Agreement shall be binding upon the
successors, assigns, heirs, transferees, legal representatives and
administrators of the parties hereto.
IN WITNESS THEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CALI ORCHIDS, INC. XXXXX NURSERY FARMS, INC.
By:/s/ ILLEGIBLE By: /s/ XXXXXXX X. XXXXXXX
-------------------- ----------------------
Name: Name: Xxxxxxx X. Xxxxxxx
Title: President Title: President
/s/ XXXX XXXXXXXX
-------------------
Xxxx Xxxxxxxx
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EXHIBIT A-1
---RUSTICA: Predio de terreno radicado an el Barrio Quebradillas del termino
municipal de Barranquitas, con una mas de otra cuerda (13.76 odas.) equivalentes
a Cincuenticuatro Mil Noventicinco Metros Cuadrados con Setenticuatro Centesimas
de otro metro xxxxxxxx (54,095.74) m.c.) y en lindes: por el Norte con Xxxxx
Xxxxxx Xxxxxxxx y la Xxxxxxxxx Xxxxxxxxx xxx Xxxxxx Xxx Xxxxxxxxx; por el Sur,
con las parcelas tres, cinco y seis de Xxxxxxxxx Xxxxx; por el Este, con la
parcela dos de Xxxxxxxxx Xxxxx y por el Oeste, con Xxxxx Xxxxxx Xxxxxxxx.
---Inscrita en el Registro de la Propiedad de Barranquitas, folio sesenta y seis
(66), volumen ciento dos (102) de Barranquitas, propiedad numero cinco mil
cuarenta y dos (5,042).
EXHIBIT A-2
---UNO-RUSTICA: Predio del terreno radicado en el Barrio Quebradillas del
termino municipal de Barranquitas, con una cabida superficial de CINCO CUERDAS
CON NUEVE MIL SEISCIENTOS SESENTIOCHO DIEZ MILESIMAS DE OTRA CUERDA (5.9668),
equivalentes a VEINTITRES MIL CUATROCIENTOS CINCUENTIUN METROS CUADRADOS CON
OCHOCIENTOS CINCUENTA Y SIETE MILESIMAS DE OTRO METRO CURADRADO (23,451.857), y
en lindes por el Norte, con carretera municipal, Sector Las Orquideas; por el
Sur, con carretera municipal Sector Las Orquideas y un camino de la finca
propiedad de Xxxxxxxxx Xxxxx; por el Este, con terrenos de Xxxxxx Xxxxxxxx y el
camino municipal Sector Las Orquideas; y por el Oeste, con terrenos del Cali
Orchids, Inc. y Xxxxxxxxx Xxxxx.
---Inscrita al folio ochenta y cinco (85) del tomo ciento quince (115) de
Barranquitas, finca numero seis mil novecientos cuarenta y siete (6,947).
EXHIBIT A-3
"RUSTICA": Predio de terreno radicado en el Barrio Quebradillas del municipio de
Barranquitas, con una cabida superficial de CUATRO CUERDAS CON TRES CENTESIMAS
DE OTRA CUERDA (4.03) cuerdas equivalentes a QUINCE MIL OCHOCIENTOS CUARENTIDOS
METROS CUADRADOS CON CUATRO CENTESIMAS DE OTRO METRO XXXXXXXX (15,842.04) En
lindes por el Norte, con la parcela numero tres antes, hoy Cali Orchids, Inc.,
por el Sur, con el remancente de la finca principal de la cual se segrega; por
el Este, con el predio segregado y vendido a Plantas Las Palomas, Inc. y por el
Oeste, con el predio numbero uno, de Valentino Xxxxx xxxxx, xxx Xxxx Orchids,
Inc.
---Constituye el remanente de la finca numero cinco mil cuarentidos (5,042),
inscrita al folio sesenta y nueve (69) del tomo ciento dos (102) de
Barranquitas.
EXHIBIT B
PERSONAL PROPERTY
-----------------
The following is the list of certain assets owned by Lessors, herein
referred as "PERSONAL PROPERTY ASSETS", that are to be leased to Lessee under
the Agreement:
1. ______existing greenhouses with approximately one thousand (100,000
sq/ft) square feet of Benches and Tables.
2. Two (2) trucks. [NEED DESCRIPTION.]
3. Six (6) tractors.
(i) Yammar Model YM 187D C8593
(ii) Yammar Model YM 187D
(iii) Ford 1100 LEK 7520
(iv) Ford 1100 Unit 6K07B
(v) Kubota B6100E 2WD
(vi) Kubota B6100 D650A
5. Twelve (12) tracking Trailers 4' x 8'.
6. One (1) Potting Machine Xxxxxxxx & Lanson Horcho 100.
7. Two (2) Peat Xxxx Mixing Machine Xxxxxxxx & Lanson.
8. All other assets of Lessors, including stock plants, BUT
EXCLUDING:
(a) the inventory of live goods,
(b) the inventory of pots, peat, soil, chemicals and
fertilizers,
(c) all accounts receivable (hereinafter the "Accounts
Receivable"), and
(d) the goodwill (i.e., customers lists and other intangible
property);
EXHIBIT C
PURCHASE ASSETS
---------------
The following is the list of certain assets owned by Lessors, herein
referred as "PURCHASE ASSETS", that are to be sold to Lessee under the
Agreement:
1. the inventory of live goods,
2. the inventory of pots, peat, soil, chemicals and fertilizers, and,
3. the goodwill (i.e., customers lists and other intangible property).
[ILLEGIBLE GRAPHIC]
[ILLEGIBLE GRAPHIC]
EXHIBIT D
CERTIFICATE OF CORPORATE RESOLUTION
The undersigned, Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxxx, Secretary of Cali
Orchids, Inc., a corporation organized and existing under the laws of the
Commonwealth of Puerto Rico (the "Corporation"), does hereby certify that the
following resolution were duly adopted by the Board of Directors of said
Corporation, by unanimous written consent in lieu of meeting dated the date
hereof, and does further certify that the said resolution are in full force and
effect and unrescinded:
"RESOLVED, that the LEASE AND PURCHASE AGREEMENT among the
Corporation, and Xxxxx Nursery Farms, Inc. ("Lessee") submitted to the
consideration of the Board of Directors, whereby the Corporation agree
to lease to Lessors certain Land, Leasehold Improvements and Personal
Property, subject to the terms and conditions set forth in the Lease
and Purchase Agreement the further agreements referred to therein, is
hereby deemed to be advisable and desirable, and that the Corporation
shall consummate the transaction contemplated under the Lease and
Purchase Agreement and execute any further document and agreements
referred to therein substantially in the form presented to the Board of
Directors.
"FURTHER RESOLVED, that Xxxx Xxxxxxxx, President of this
Corporation, acting singly, be and hereby is authorized, for and
on behalf of this Corporation, to execute and deliver on behalf of the
Corporation the following documents:
(i) Lease and Purchase Agreement;
(ii) Employment Agreement with Xxxx Xxxxxxxx.
"FURTHER RESOLVED, that Xxxx Xxxxxxxx, President of this
Corporation, acting singly, be and hereby is authorized, for and on
behalf of this Corporation, to execute all such documents and
instruments (whether public or private) and to do and perform all such
other and further acts and things as in his judgment may be
necessary or advisable for the performance of the Corporation's
obligations under or the consummation of the transactions contemplated
by the aforesaid Lease and Purchase Agreement or otherwise implement
and give full effect to the intent and purpose of the foregoing
resolution."
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and the
seal of the Corporation, this 31st day of October, 1996.
/s/ Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxxx
Secretary
(CORPORATE SEAL)
Affidavit Number 1705
Sworn to and subscribed before me by Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxxx,
of legal age, married, property owner and resident of Barranquitas, Puerto Rico,
in his capacity as Secretary of Cali Orchids, Inc., to me personally known, at
San Xxxx, Puerto Rico, this 31st day of October, 1996.
/s/ Xxxx X. Xxxxxxx xx Xxxxxxxx
-------------------------------------
NOTARY PUBLIC
EXHIBIT E
Xxxxx Nursery Farms, Inc.
January 1, 1997
Mr. Xxxx Xxxxxxxx
Cali Orchids, Inc.
X.X. Xxx 000
Xxxxxxxxxxxx, Xxxxxx Xxxx
Dear Xxxx:
Reference is made to that certain Lease and Purchase Agreement dated
October 31, 1996 among you, Cali Orchids, Inc. ("Cali") and this Corporation. As
we have discussed, we intend to operate the property in Barranquitas which is
owned and has been operated by you and Cali for the production and distribution
of ornamental plants.
This will confirm our agreement to employ you for a period of five (5)
years commencing January 1, 1997 as the General Manager of our new facility at
the former Cali location; provided, however, that we may terminate your
employment at any time with cause upon payment to you of six months' salary at
your then current rate of pay; provided, however, that a restructuring of
operations or sale of the business of this Corporation will not be considered
cause. Your duties will include all such functions as are customarily performed
by a General Manager of an agricultural operation (including assistance in
marketing products of the Cali location to your present customers) except that
financial administration will be conducted from our principal offices at Xxxx
Xxxx, Puerto Rico. You will report directly to the President of this
Corporation.
Your base salary will be $36,000 per year payable at regular intervals,
not more than monthly, less required deductions for income and employment taxes,
provided that for each of the second through the fifth years of your employment
your salary shall be increased by 5% of your salary for the immediately
preceding year. You and your dependents will also be included in the Xxxxx
medical plan on the same basis as comparable employees.
It is expected that you will devote substantially all of your working
time and attention to our business at the Cali location. You will not have the
right to make any contracts or incur any obligations for or on behalf of Xxxxx
Nursery Farms, Inc.
During the period of your employment and for one year thereafter (i)
you will not, directly or indirectly, engage in any business or activity which
competes with or in any way conflicts with the business of Xxxxx Nursery Farms,
Inc. (provided, however, that if the Lease and Purchase Agreement is terminated
or not renewed by Xxxxx Nursery Farms, Inc. this restriction will not be
applicable), (ii) nor will you disclose to any third party or use for your own
benefit any confidential or proprietary information of Xxxxx Nursery Farms, Inc.
If you agree that the above describes our understanding, please signify
the same by executing the copy of this letter provided for this purpose and
returning the same to us.
Very truly yours,
XXXXX NURSERY FARMS, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
President
AGREED AND ACCEPTED:
/s/ Xxxx Xxxxxxxx
--------------------------
Xxxx Xxxxxxxx
Date: 10-31-96
---------------------
