EXHIBIT 10(g)(ii)
TRANSLATION
LEASE AGREEMENT
In the city of Xxxx Xxxx, Puerto Rico, on the twenty-fourth (24th) day
of the month of March of nineteen hundred and ninety-nine (1999).
APPEAR
AS PARTY OF THE FIRST PART: The PUERTO RICO LANDS AUTHORITY,
hereinafter called the "Lessor," a public corporation and government
instrumentality of the Commonwealth of Puerto Rico, represented herein by its
Executive Director, XX. XXXXXXXX XXXXXX XXXXXXX-XXXXXXXXXX, of legal age,
married, attorney and agronomist, and resident of Toa Baja, Puerto Rico, Social
Security Number 584- 57-6622.
AND AS PARTY OF THE SECOND PART: XXXXX NURSERY FARMS, INC., hereinafter
called the "Lessee," a corporation duly authorized under the laws of the
Commonwealth of Puerto Rico, with employer Social Security Number 00-0000000,
represented herein by its President, XX. XXXXXXX X. XXXXXXX, of legal age,
married, farm operator, and resident of Dorado, Puerto Rico, Social Security
Number ###-##-####.
And they hereby:
STATE
FIRST: That Lessor is the owner in fee simple of the real
property described as follows:
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TRANSLATION
RUSTIC: Parcel of land located in the Sabana Xxxx, of the Municipality
of Xxxx Xxxx, Puerto Rico, with a surface area of approximately 61.00
cuerdas, and bordering: on the NORTH, with the easement of XX Xxxx 000
and 690; on the SOUTH, with private lands of the Xxxxxxxxx community;
on the EAST, with the easement of Highway #690 and with private lands;
and on the WEST, with the easement of PR Road Number 690.
Recorded at Page 105 of Tome 17 of the Registry of Property of Xxxx
Xxxx.
And it hereby ASSIGNS and GIVES in lease to Lessee said real property
under the terms and conditions contained herein. The real property object of the
lease and described in this agreement forms part of the Cibuco farm located in
the Sabana Xxxx of the Municipality of Xxxx Xxxx, Puerto Rico.
SECOND: The premises object of this lease have a superficial area of
approximately SIXTY-ONE POINT ZERO ZERO (61.00) cuerdas belonging to the Cibuco
farm which appears geographically delimited in the sketch attached hereto and
made to form a part hereof as Exhibit "A".
THIRD: The terms and conditions of this lease are as follows:
1) The lease term shall be for a period of five (5) years,
as of the date of delivery of the premises, with the right to three (3)
extension periods of five (5) years each. Lessee shall have a period of ninety
(90) days after expiration of each term to exercise its right to extend the
terms and conditions of this agreement. Upon expiration of said ninety (90)
days, Lessor shall
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notify Lessee in writing that the latter shall have sixty (60) days to exercise
its right in writing, otherwise the automatic extension will be canceled. It is
hereby clarified that the right to said extension is conditioned on compliance
with the terms and conditions of this agreement.
2) During the terms of this agreement or in the exercise of any of its
extensions, Lessee may request and state its interest in exchanging the leased
property. In the event that Lessee wishes to exchange another property of equal
capacity, property of Lessee, which is not leased property, Lessor agrees to
evaluate such exchange.
3) In spite of the fact that it is not part of the public policy of
Lessor to offer for sale lands used for agricultural purposes, in the event that
Lessor intends to totally or partially encumber the leased property due to the
fact that it ceases to be of public use, it shall grant the right of first
refusal pursuant to Section 31a of the Public Lands Sale or Lease Act of April
18, 1952, as amended.
4) Lessor may terminate the lease in the event that the property
becomes necessary for the ends and purposes of Lessor or of another Government
or Municipal Agency, in which case Lessee shall only be entitled to be
indemnified or compensated for the permanent unrecovered improvements it has
made on the property
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whose lease was so terminated by lessor prior to its expiration provided that
such improvements have been previously authorized. Lessee must submit verifiable
evidence of the improvements made on the property at the time of termination of
the lease or part thereof by Lessor. It is hereby clarified that should Lessee
be entitled to be compensated for any type of improvements, such compensation
shall be for the Account of the Agency or Municipality interested in the lands,
releasing Lessor from any liability in this type of claim.
5) The annual rent on the lease shall be SEVEN THOUSAND SIX HUNDRED
TWENTY-FIVE DOLLARS ($7,625.00) at the rate of ONE HUNDRED TWENTY-FIVE DOLLARS
($125.00) per cuerda per lease year for the next five (5) year extension
periods, to be timely negotiated between the parties, Lessor agreeing not to
increase the rent beyond what Lessor charges to other corporations dedicated to
the same or similar industry of approximate capacity. Responsibility for the
total payment of property taxes is transferred to Lessee, which at present are
estimated at an average of ONE THOUSAND FIVE HUNDRED TWENTY-FIVE DOLLARS
($1,525.00), at the rate of TWENTY-FIVE DOLLARS ($25.00) per cuerda per year;
provided, that any tax increase imposed on the property during the term of this
agreement shall also be the responsibility of Lessee. It is hereby clarified
that should Lessee accept the services of a tax exemption it shall
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TRANSLATION
always be responsible for the payment of the rent in the pre-agreed manner. The
payments are to be made quarterly in advance at the offices of Lessor, located
on Stop 19 1/2, 1311 Xxxxxxxxx Juncos Avenue, in Santurce, Puerto Rico. Also, at
the time of execution hereof, Lessee must pay the sum of TWO HUNDRED
TWENTY-EIGHT DOLLARS AND SEVENTY-FIVE CENTS ($228.75) to cover part of the
administrative expenses. It is hereby clarified that should Lessor participate
in the improvements of the infrastructures of these lands, the rent may be
revised for purposes of adjusting the same to what other lessees pay in similar
situations.
6) Lessor shall grant Lessee a sixty (60) days curing period for the
payment of the rent and the use of the leased property, provided that it is not
contrary to the law, morals or public order. Failure to pay the rent in the
manner stipulated under the preceding condition shall entitle Lessor to
terminate the lease and to immediately proceed to the eviction of Lessee, as
well as to exercise any right or action which may be proper.
7) Lessee agrees not to construct on the leased property any building,
except for sheds and other facilities directly related with the activity or uses
authorized herein, such as buildings for storage and offices, including
structures for employees, all after Lessee arranges, on its own and for its own
account, for the corresponding permits from the pertinent agencies. Lessee shall
be
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entitled to construct any structure within the farm to protect our inventory
from theft or vandalism, to pave roads in the perimeter upon prior written
authorization of Lessor, and to improve the drainage which includes ditches,
provided that Lessee arranges, on its own and for its own account, for the
permits from the pertinent agencies. Lessee shall not allow any person to build,
other than Lessee or its agents, Lessor being liable for any damages which the
violation of such condition causes.
8) Lessee agrees to use the leased property solely and exclusively for
the production and sale of ornamental plants, trees, palm trees, the planting of
grass, the manufacture and distribution of gardening products in general, such
as pots and chemical gardening products, provided that Lessee complies with all
of the state and/or federal laws and regulations in connection with the
production, and provided that, should this condition be violated, Lessor may
resolve the lease agreement immediately. However, it is hereby clarified that
the planting of grass, trees and palm trees on land will be permitted after
submitting proper guarantees for the replacement of the top soil. Upon
concluding the planting and extraction of grass, Lessee shall replace the
organic layer of the top soil at a thickness of not less than eight (8) inches
in the entire area used for planting grass. In order to guarantee compliance
with this condition, Lessee accepts and agrees
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to post and to maintain in effect during the term of this agreement, a bond of
THREE THOUSAND DOLLARS ($3,000.00) per cuerda used for the planting and
extraction of grass, trees and palm trees as other farmers have done. Said bond
may be made through an insurance company authorized to do business in Puerto
Rico. Lessee shall notify the number of cuerdas to be used for this purpose and
on the basis of such number it shall post the bond. Lessee shall be responsible
for any contamination in connection with the manufacture and distribution of
chemical gardening products on the leased premises, releasing Lessor from all
liability in connection with said operation.
9) The parties agree that access to the lease property shall be through
the easement of State Road 690. Lessee shall maintain and preserve with durable
material the access road in transitable condition and shall install a control
system which will maintain permanently clean the access road and internal roads
of the leased property.
10) All improvements of any kind, whether they are useful, necessary or
permanent, which Lessee has introduced into the leased property, as well as all
plantings or sprouts which Lessee has not removed, shall enure to the benefit of
Lessor upon termination of the lease agreement, whether because said agreement
expired or because Lessor must resolve the same due to breach by Lessee or
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voluntary surrender of the property by Lessee unless Lessor provides otherwise
in writing using the same formalities of this agreement. Lessee it entitled to
remove any improvements introduced provided that such removal does not cause
damage to the land leased and it agrees to leave the land used in like or better
condition as when it found the same.
11) Lessee shall be entitled to mortgage the improvements to removable
structures without impairing the real property, such as green houses, shade
houses, and warehouses for agricultural product equipment up to a maximum of
THREE MILLION DOLLARS ($3,000,000.00), pursuant to the Civil Code of Puerto
Rico, the applicable Regulations and case law.
12) In order to guarantee the payment of the rents corresponding to the
five (5) years and the three (3) extension periods of five (5) years each,
Lessee shall deliver to Lessor and shall maintain in effect during the term of
the lease agreement a bond by depositing FOUR THOUSAND EIGHT HUNDRED TWELVE
DOLLARS AND FIFTY CENTS ($4,812.50). Said amount shall not accrue interest in
favor of lessee. The bond must be accepted by Lessor.
13) Lessee agrees to guarantee, through the same deposit mentioned in
the preceding clause, that upon conclusion of the lease agreement it shall
remove the structures constructed by it on the leased premises and to cover any
expense which the Lands
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Authority must incur for such removal, including reasonable legal and other
expenses.
14) Any damage caused to any individual person or properties or to
Lessor as a result of the use for which the leased property will be dedicated
shall be the responsibility of Lessee.
15) Expanding on the preceding condition, it is hereby provided that in
the event that Lessor is sued for the reasons contained in the condition
mentioned herein, Lessee shall assume the defense of Lessor and, should it fail
to do so, Lessee shall be liable to Lessor for any expenses incurred by the
latter in such defense, in addition to being liable for the payment of any
judgment which may be entered.
16) Lessee agrees to care for the leased property with the diligence of
a good father of a family committing to surrender the same in equal or better
condition than those in which it was received at the commencement of the lease,
except for any natural deterioration it may undergo.
17) Lessee shall maintain in good condition the use of the roads or
paths which run through the leased property.
18) The parties agree that the leased area was determined through a
planimeter and should Lessee wish to have measurements taken to determine the
exact area of the lease property it must do so on its own and for its own
account within a term of not more
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than six (6) months as of the date on which the agreement is executed. The
adjustment resulting in the area, if any, shall be made after Lessor
corroborates the measurement plan. Likewise, an adjustment in rent as a result
of the change in area shall be made retroactive to the date on which the lease
agreement was executed or the lands delivered to Lessee.
19) In the event that the measurements are taken subsequent to the six
(6) months period, the rent shall be adjusted and shall enter into effect thirty
(30) days following the date on which Lessee notifies Lessor in writing of the
results of said measurement. Neither Lessee nor Lessor shall be entitled to file
a claim between them for payments made prior to the rent adjustment, unless the
measurement and notice mentioned herein are made within said six (6) months
period.
20) The payment of property taxes imposed on the leased property shall
be the responsibility of Lessee, provided that any tax increase imposed thereon
shall also be the responsibility of Lessee, who must pay to Lessor as of
delivery of the land and as provided in condition number five (5) hereof.
21) The payments of electrical energy, aqueduct waters, telephone and
other general services, if any, shall be for the account of Lessee.
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22) Lessee agrees to perform on the leased property, during the term of
the lease, any work which may be necessary in order to put it and preserve it in
serviceable condition for the use for which it will be destined, all for its own
account without any expense or disbursement by lessor.
23) During the term of the lease, Lessee shall repair the fences of the
leased property, if any, and replace any of the same which may for any reason be
destroyed or disappear; and in the event that no fences exist, Lessee agrees to
properly fence in the leased property, to maintain the fences in good condition,
in addition to not moving or altering in any way the boundary points or fences
established, or allow any person to move, change or alter said boundary points
or to remove fences. It shall also clean the trenches, irrigation ditches,
and/or drains on said property, if any, and to prune and/or weed said property,
as necessary, and as is usual and customary.
24) Lessee agrees not to cut down the trees and palm trees on the
leased premises, if any, without the prior written authorization of Lessor.
25) Lessee shall permit the entry of Lessor's employees onto the leased
property to perform any activity necessary for Lessor, such as taking
measurements, preparing topographic maps, inspections, etc. Similarly, it shall
permit the entry of the
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officials of the Department of Agriculture, of its ascribed Agencies, or of any
other state or federal instrumentality which has an interest in or has
jurisdiction over the land to carry out studies on the development of the
agricultural project, as well as to perform any necessary investigation.
26) Lessor reserves the right to use any roads existing on the leased
property belonging to Lessor which are necessary to provide access to lands
which are used by programs of Lessor, the Sugar Corporation, and other lessees
of Lessor or for any other use which may enure to the public good.
27) Lessor reserves the right to exploit directly or through contract
with third parties the mineral deposits which exist or may exist on the leased
property.
28) Lessee may not assign the lease agreement, in whole or in part, nor
may it assign the administration of the leased property and its operations
thereon, nor any right derived therefrom to any person or entity, nor may it
sublease, in whole or in part, the property object of this lease to any person
or entity unless such assignment is to an affiliate. Any damage caused to the
leased property by the affiliates of Lessee shall be the primary responsibility
of Lessee.
29) The fact that Lessor, upon the occurrence of any violation of the
conditions mentioned herein, does not terminate
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immediately the term of the lease, nor takes any steps to have Lessee evicted
from the leased property shall not be construed as Lessor consenting to such
violation or to waiving the right to terminate the agreement, and Lessor may at
any time make use of any and all rights and actions which our laws grant it
provided that thirty (30) days advance notice is given to Lessee.
30) In the event that Lessor must establish or file and files or
established any judicial action against Lessee for the collection of any sums of
money in terms of rents owed or for damages stemming from the lease agreement
and/or for the eviction of Lessee, whether because the term of the agreement has
expired, for failure to comply with any of the lease conditions as stipulated,
Lessee expressly accepts and agrees to pay all costs, expenses and disbursements
originating from the processing of the action or actions established or filed as
well as the payment of attorney's or attorneys' fees incurred by Lessor
therefor, even if such attorneys are employees of Lessor and Lessee shall
expressly submit to the competence of the courts chosen by Lessor for the
processing of any action filed by the latter against Lessee by reason of the
lease agreement.
31) Lessee agrees to comply with all of the applicable laws and
regulations of the Commonwealth of Puerto Rico and of the Municipalities where
the leased property(ies) is/are located.
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TRANSLATION
32) Lessee accepts and agrees to pay to Lessor annual interest on any
amount owed and in default, using as the basis the primary interest in effect at
the Government Development Bank, plus one percent (1%) over same, as of the date
of occurrence of such action.
33) Lessee agrees to respect the easements established on the real
property object of this lease and shall impede the establishment of new
easements and rights of passage without the written consent of Lessor.
34) Lessor reserves the right to cut handspikes, if any, on the leased
property upon prior notice to Lessee.
35) Lessor shall notify Lessee in writing of any breach of the
agreement and may, at its option, grant Lessee a term to cure the same.
36) In the event that Lessee wishes to resolve the lease agreement
prior to the date of expiration, it must notify the same in writing to Lessor
not less than thirty (30) days prior to the date it wishes to terminate the same
and accompany together with the notice of resolution the amount corresponding to
six (6) months rent. Should the lease agreement have less than six (6) months
remaining in its term, Lessee shall only be required to pay Lessor the rent
corresponding to the time left on the agreement, excluding the extension period,
if any.
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37) Lessee shall respect the rights of the families residing on the
leased property, if any, and shall agree to allow said families to have free
access to their respective dwellings. Likewise, it agrees to allow them to plans
the short term crops which they have on the property at the time the same is
leased. This condition is expanded in order to establish that the following
peons exist on the leased property: NONE.
38) Lessee freely accepts and agrees to grant in favor of the Lands
Authority an Assignment of Credit authorizing the Animal Husbandry Service and
Development Administration, the Agricultural Insurance Corporation, the Puerto
Rico Farm Credit Bank, Farms Services Agency or other income which may be
received from legal suits in which Lessee is involved to make any deductions
necessary up to the total amount of the debt.
39) Lessee accepts and is aware that the leased property represents a
major risk for purposes of floods or access thereto, for which it assumes full
responsibility for complying with the requirements and provisions of the
regulation on Areas Susceptible to Flooding for any construction, use or
development, including the total cost of any studies or works necessary to make
its project viable.
40) Lessee accepts and agrees that any change in residential or postal
address or telephone number, if any, shall be notified to
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Lessor within the term of thirty (30) days after such change is made.
41) Lessee accepts and agrees that once work on the premises begins on
the agricultural activity to be engaged, it assumes, in turn, the risk of any
losses or damages due to natural causes, such as flooding, rains, droughts,
earthquakes, xxxxxx xxxxxxx, hurricane and/or for other types of damages, such
as fires, diseases and plagues, and Lessor need not compensate Lessee in any
manner for such damages or losses.
42) The Lands Authority and/or the Programs ascribed thereto shall not
be responsible for any inconveniences caused to the plantings and/or animals
which Lessee has on the leased property resulting from the application of
herbicides or insecticides on the plantings developed on adjacent lands.
43) The parties expressly agree that this agreement shall not be
recordable at the Registry of Property. In event that Lessor decides to assign
or transfer the title or assets of the leased property to another Government
Agency, it shall be the duty of Lessor to notify Lessee in writing and to all
future titleholders or purchases of the existence of this lease agreement, and
Lessor shall inform Lessee of the name and address of the future purchaser prior
to the act of disposition of the leased property.
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44) This agreement shall not be valid in any of its parts until an
authorized officer of the Lands Authority makes physical delivery of the
property to Lessee and Lessee accepts the same.
45) Lessee acknowledges that the activity in which it will be engaged
could at some of its stages generate contaminants or damaging toxic substances,
both for humans as well as for the environment in general if the best handling
practices are not undertaken. This situation is aggravated if the premises
object of the lease are located in an area next to or bordering structures used
as residences or to bodies of water, thus Lessee agrees to ensure that all
safety measures are followed in compliance with all of the standards and
provisions of the state and federal statutes created to prevent or minimize any
possible adverse act of its actions on the quality of human environment;
therefore, Lessee is also cautioned that it will be solely responsible for any
damages to life or the leased property and the property of third persons,
litigations, judgments, fines or penalties imposed by courts of state or federal
administrative agencies on Lessee or the Lands Authority. Expanding on the
foregoing, should the Lands Authority have to pay files and penalties for
Lessee's breach of any state and federal laws, Lessee shall be responsible for
total payment of said fine and penalty plus an additional twenty-five percent
(25%)
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for costs, expenses and attorney's fees as well as for any interest accrued on
the fine and penalty paid by the Lands Authority.
46) Expanding on condition number eight (8) and number forty-five (45)
hereinabove, in order to guarantee payment of any claim which may arise for
damages caused to individual persons or properties or of properties of the Lands
Authority as a result of Lessee's activities on the leased property, Lessee
accepts and agrees to obtain and maintain in effect during the term of this
lease agreement a public liability insurance policy with an insurance company
duly registered and authorized to do business in Puerto Rico, including the
Lands Authority as additional co-insured, with the following limits:
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for accident and
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for property damages. Said policy
must include a Hold Harmless Agreement clause. Should both liabilities be
combined (C.S.L.) the amount of the policy shall not be less than the sum of
both amounts, with aggregate equal to the sum of the amounts of the policy
limits.
47) The parties expressly agree that upon expiration of the agreement
without Lessor requiring that Lessee surrender possession of the leased lands,
the agreement shall not be considered renewed and there will be no tacit
re-extension. The fact that Lessor accepts rental payments on the lease from
Lessee after the
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agreement has expired shall not be interpreted as the agreement having been
renewed or that such tacit re-extension exists. In such event, should Lessee
continue in possession of the property due to Lessor's tolerance or
inadvertence, it shall be subject to a month-to-month agreement until the
parties agree, at the will of Lessor, that a new agreement will be executed. The
monthly rent shall be the result of dividing the last annual rent agreed to in
this agreement into twelve (12) months. This agreement shall in no way limit the
authority of Lessor to recover possession of the leased land if it is necessary
for its purposes or because Lessee has failed to comply with any of the
provisions of this agreement.
48) Lessor agrees to give the endorsement of its agency to obtain
agricultural credits and to adopt the infrastructure program on irrigation and
drainage following the procedure established to qualify for funds assigned under
the infrastructure program, provided that Lessee qualifies as a bona fide xxxxxx
and has complied with the terms of this agreement.
49) Lessee expressly accedes, accepts and authorizes the Puerto Rico
Lands Authority to disclose any information relative to the credit and form of
rent payments to any public or private entity dedicated in turn to disclosing or
distributing credit information.
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50) The parties expressly agree that any claim which one party has
against the other for damages due to the alleged breach of its obligations under
this agreement shall be discussed exclusively through an arbitration proceeding
to which they will submit expressly waiving the judicial forum of a Court.
Excluded from the arbitration proceeding are all other claims, matters, rights
or procedures under this agreement which have nothing to do with damages, such
as, but not limited to, evictions and replevies judicially filed by Lessor for
breach of any of the obligations contracted by Lessee, claims for collections of
monies for any concept of Lessor against Lessee; the authority of Lessor to
resolve the lease agreement for any of the causes stated and acknowledged by the
parties therein. The specific proceeding for the claim to be arbitrable in any
claim for damages of the parties shall be the following: either of the parties
who claims damages from the other within the term of thirty (30) days after the
latter becomes aware of the facts and damages which gave rise to its claim must
notify in writing, by certified mail, return receipt requested, said claim to
the other party indicating in the content of its written communication a summary
of the facts on which it bases its claim, in which it shall further indicate the
specific contractual provision(s) invoked in support of its claim, the amount
claimed and it shall also describe the documentary and
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testimonial evidence it has in support of its allegations. The claimee shall
have thirty (30) days to respond to the claim. Should the claimee respond by
denying the claim or should it fail to respond within the above-indicated term,
then the claimant may demand in writing, within thirty (30) days, that the case
be submitted to arbitration, indicating in its communication the name of the
arbitrator it has selected. The claimee, in turn, shall select another
arbitrator. The arbitrator selected by Lessee and the arbitrator selected by
Lessor shall select by mutual agreement a third arbitrator so that together they
can discuss the controversy. The parties shall be entitled to a discovery
period, which shall be regulated by the arbitrators. The decision or award of
the arbitrators, after the evidentiary hearing has been held, shall be by
majority and shall be final and unappealable for the parties from the date on
which the same is issued.
51) The parties agree freely, voluntarily and will full understanding
of the agreements and their consequences, that no claim for damages and no
decision or award of the arbitrators may exceed in the granting or compensation
for damages more than three (3) times the amount represented by the total amount
which Lessor may collect in rents during the full term of the agreement without
including any extensions thereof.
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52) These are the terms and conditions which the parties have reached
freely and voluntarily, and which they manifest they have read and understood.
The parties finally agree that no verbal or written agreement or representation
of either of the parties may vary of modify the conditions and terms of this
agreement unless they are executed in writing and under the same formalities as
this agreement.
SUCH IS THE LEASE AGREEMENT, which the parties sign as they have found
it to be in accordance with the stipulations agreed to on the date indicated
hereinabove.
PUERTO RICO LANDS AUTHORITY
(SIGNED)
----------------------------------
XXXXXXXX XXXXXX XXXXXXX-XXXXXXXXXX
EXECUTIVE DIRECTOR
(SIGNED)
----------------------------------
XXXXXXX X. XXXXXXX
AFFIDAVIT NO. 7635
Subscribed and sworn to before me by XX. XXXXXXX X. XXXXXXX,
of the personal circumstances stated above, personally known to me.
In Xxxx Xxxx, Puerto Rico, on March 24, 1999.
[Notarial Seal] (SIGNED) XXXX X. XXXXXXXXXX-XXXXXXXX
-------------------------------------
NOTARY PUBLIC
AFFIDAVIT NO. 7635
Subscribed and sworn to before me by XX. XXXXXXXX XXXXXX
XXXXXXX-XXXXXXXXXX, of the personal circumstances stated above, personally known
to me.
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In Xxxx Xxxx, Puerto Rico, on March 24, 1999.
[Notarial Seal] (SIGNED) XXXX X. XXXXXXXXXX-XXXXXXXX
------------------------------------
NOTARY PUBLIC
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