Exhibit 10.68
MARKETING AND SALES AGREEMENT
XXXXXXX
XXXXXXX XXXXX, X.X.X.
XXX
XXXXXXX XXXXX XX XXXXX, L.P.
February 13, 1996
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS.............................................................1
ARTICLE II
SCOPE OF DUTIES.........................................................3
Section 2.01 . Performance of Duties...............................3
Section 2.02 . Personnel...........................................3
Section 2.03 . On-Site Supervisor..................................3
Section 2.04 . Marketing Plan......................................3
Section 2.05 . Performance Standards...............................4
ARTICLE III
MARKETING AND SALES.....................................................4
Section 3.01 . Marketing...........................................4
Section 3.02 . Village Farms Trademark.............................4
Section 3.03 . Quality Control.....................................5
Section 3.04 . Promotion...........................................5
Section 3.05 . Sales Prices........................................5
Section 3.06 . Billing and Collections.............................5
Section 3.07 . Packaging, Shipping, and Delivery...................5
Section 3.08 . Obligations of Owner................................6
Section 3.09 . Greenhouse Products.................................6
Section 3.10 . No Obstruction......................................6
ARTICLE IV
COMPENSATION AND PAYMENT................................................6
Section 4.01 . Basic Compensation..................................6
Section 4.02 . Debt Service Coverage Ratio Test....................7
Section 4.03 . Bonuses.............................................7
Section 4.04 . Payment of Bonuses..................................7
ARTICLE V
REPRESENTATIONS AND WARRANTIES..........................................8
Section 5.01 . Representations and Warranties of the
Marketing Agent.....................................8
ARTICLE VI
COVENANTS OF THE MARKETING AGENT........................................8
Section 6.01 . Books, Records and Reports..........................8
Section 6.02 . Employment Practices.................................8
Section 6.03 . Nondisclosure.......................................8
Section 6.04 . Compliance With Governmental Rules..................8
Section 6.05 . Section 8 and Section 15 Declarations..............10
Section 6.06 . Section 9 Renewal..................................10
ARTICLE VII
GENERAL LIABILITY.......................................................9
Section 7.01 . Indemnification.....................................9
ARTICLE VIII
DEFAULTS AND REMEDIES..................................................10
Section 8.01 . Defaults...........................................10
Section 8.02 . Damages for Termination Without Cause.............110
ARTICLE IX
TERM...................................................................11
Section 9.01 . Term...............................................11
ARTICLE X
MISCELLANEOUS..........................................................12
Section 10.01 . Notices...........................................12
Section 10.02 . Severability......................................13
Section 10.03 . Amendment.........................................13
Section 10.04 . Assignment........................................13
Section 10.05 . Relationship of the Parties.......................13
Section 10.06 . Headings; Etc.....................................13
Section 10.07 . Governing Law.....................................13
Section 10.08 . Parties in Interest; Limitation and
Rights of Others..................................13
Section 10.09 . Arbitration.......................................14
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MARKETING AND SALES AGREEMENT
Village Farms of Texas, L.P. (the "Owner") intends to construct and
operate an approximate 41 acre greenhouse in Xxxx Xxxxx County, Texas (the
"Greenhouse") . The Greenhouse will be manufactured and constructed by Dalsem
Kasenkouw B.V. (the "Contractor"), Agro Power Development, Inc. (the "General
Contractor") and the Owner. Village Farms, L.L.C. (the "Marketing Agent") and
the Owner have entered into this Marketing and Sales Agreement dated as of
February 13, 1996 to market the produce grown at the Greenhouse.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, and in
reliance upon the representations and warranties of each party set forth herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms when used herein shall have the following meanings:
"Affiliate" of any Person shall mean each Person which, directly or
indirectly, controls or is controlled by or is under common control with such
designated Person and, without limiting the generality of the foregoing, shall
include (a) any Person which beneficially owns or holds ten percent (10%) or
more of any class of voting securities of such designated Person or ten percent
(10%) or more of the equity interest in such designated Person and (b) any
Person of which such designated Person beneficially owns and holds ten percent
(10%) or more of any class of voting securities or in which such designated
Person beneficially owns or holds ten percent (10%) or more of the equity
interest. For the purposes of this definition, the terms "controls," "controlled
by," and "under common control with," as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person whether through the
ownership of voting securities or by contract or otherwise.
"Agreement" shall mean this document and any exhibits and appendices
hereto as amended, modified or supplemented from time to time.
"Business Day" shall mean any day other than Saturday, Sunday or other
day on which banks are authorized to be closed in Texas, New York, North
Carolina, or New Jersey.
"Contract Year" initially shall be the period ending on December 31
next following the Date of Initial Services and each calendar year thereafter.
"Credit Agreement" shall mean the Credit Agreement to be entered into
between Owner and the Lender, as the same may be amended, modified or
supplemented from time to time.
"Date of Initial Services" shall mean the later of July 1, 1996 or the
date of Phase I Substantial Completion under the Commercial Greenhouse Design
and Construction Contract, dated December 7, 1995 by and between Contractor and
General Contractor, as same may be amended, modified or supplemented from time
to time.
"Governmental Rule" shall mean any law, rule, regulation, ordinance,
order, code, interpretation, judgment or similar norm or decision of any
Federal, state, local or foreign government, authority, agency,, court or other
body or entity having jurisdiction over the Site.
"Lender" shall mean CoBank, ACB, as Agent for the lending
institution(s) providing financing for the Project, and their successors and
assigns.
"License Agreement" shall mean the License Agreement dated February 13,
1996 between Agro Power Development, Inc. and the Marketing Agent, a copy of
which is attached hereto as Exhibit A, as same may be amended from time to time.
"Loan Agreement" shall mean the Loan Agreement dated on or about
February 14, 0000, xxxxxxx Xxxx Xxxxxx Xxxx xx Xxxxx, Xxxxx Production Credit
Association, CoBank, ACB, and the Owner, as same may be amended from time to
time.
"Manager" shall mean the person described in Section 2.01.
"Management Contract" shall mean the Management, Operation, and
Maintenance Contract of even date herewith between the Owner and the Manager, as
same may be amended, modified, or supplemented from time to time.
"Marketing Plan" shall mean the business plan and budget prepared
annually or more often by Marketing Agent setting forth the items described in
Section 2.04.
"On-Site Supervisor" shall mean the person described in Section 2.03.
"Party" shall mean Owner or the Marketing Agent, or any of them, as
appropriate, and their successors and permitted assignees.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or agency or political subdivision thereof.
"Product" shall mean all production derived from the Greenhouse, which
shall initially consist of tomatoes.
"Revenues" shall mean the gross proceeds derived from the sale of the
Product, plus interest income, and any and all other types of income received by
the Owner, less allowances, returns, and amounts received with respect to
freight and transportation charges, and excluding insurance proceeds.
"Site" shall mean the Greenhouse and its grounds located at Xxxxxxx 00
Xxxxx, Xxxx Xxxxx, Xxxx Xxxxx Xxxxxx, Xxxxx.
"Term" shall mean the period provided for in Section 9.01 hereof.
"Uncontrollable Force" shall mean any of the following which are beyond
the reasonable control of a Party and which materially impairs the performance
by such Party of its duties and
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obligations hereunder and such material impairment continues for a period of
more than thirty (30) days: (a) severe weather, flood, fire, lightning or other
natural disaster or act of God, (b) earthquake or subsidence, whatever its
cause, (c) strikes or other labor disturbances, whether or not involving
employees of a Party, (d) action or inaction by, or inability to obtain
authorization or approval from, any governmental agency or authority, which a
Party is unable, after its best efforts, to overcome, (e) compliance with any
Governmental Rule, (f) war (whether declared or not), sabotage, act of a public
enemy, insurrection, riot or civil disturbance, (g) defects in material
equipment necessary for performance of the Agreement, (h) any act by another
party (other than the Party claiming Uncontrollable Force, any Affiliate of such
Party or the respective agents, servants or employees of such Party or
Affiliates), or (i) any other similar act.
"Work" shall mean all duties and responsibilities of the Marketing
Agent under this Agreement.
ARTICLE II
SCOPE OF DUTIES
Section 2.01. Performance of Duties. As more specifically described in
Article III, the Marketing Agent shall furnish, manage and supervise certain
personnel necessary in connection with the marketing, sale, and distribution of
the Product, in accordance with the terms of this Agreement. Commencing on the
Date of Initial Services, the Marketing Agent shall participate in the planning
and start-up of the Greenhouse. The On-Site Supervisor (as defined herein in
Section 2.03) shall be available at the Site on a full time basis, commencing on
September 1, 1996. The operation of the Greenhouse and the production of the
Product shall be the primary responsibility of Village Farms of Delaware, L.L.C.
(the "Manager") as defined in the Management Contract.
Section 2.02. Personnel. The Marketing Agent shall make available for
the performance of its duties under the Agreement, sufficient personnel (each of
whom will be properly trained and qualified to undertake their respective
assigned duties) and support systems and services as are necessary or desirable
to assure the performance of Marketing Agent's responsibilities under this
Agreement.
Section 2.03. On-Site Supervisor. The Marketing Agent shall identify
one competent individual to act in the capacity of On Site Supervisor. The
On-Site Supervisor shall be responsible on a day-to-day basis for the marketing
and sales of the Product and shall be supervised by the Marketing Agent. The
selection and continued employment of the On-Site Supervisor shall be subject to
the approval of Owner, which approval shall not be unreasonably withheld. The
On-Site Supervisor shall be an employee of the Owner.
Section 2.04. Marketing Plan. Within thirty (30) days from receipt of a
copy of the preliminary business plan and budget for the first year of
operations of the Greenhouse, which is to be prepared by the Manager pursuant to
the Management, Operation and Maintenance Contract of even date herewith, and
approved by the Owner, the Marketing Agent will provide to the Owner and the
Lender a preliminary Marketing Plan for the first year of operations which shall
include the strategy for marketing efforts for the upcoming year, target
customers and geographic areas for penetration, and such other information which
is customarily included in a
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produce marketing plan, and which will also set forth such other information as
the owner may reasonably request. In addition, within thirty (30) days after
receipt by the Marketing Agent of each subsequent business plan and budget
prepared by the Manager (the "Business Plan"), which Business Plan is to be
submitted by the Manager forty-five (45) days prior to December 31 of each year
(except for the first Contract Year), the Marketing Agent shall submit to the
Owner, with a copy to the Lender, the Marketing Plan for the next succeeding
Contract Year corresponding to the year covered by such Business Plan. The
Marketing Plan shall always be prepared in conjunction with the Business Plan
and shall set forth in form and detail reasonably satisfactory to Owner, the
Marketing Agent's plans for such Contract Year. The Marketing Plan shall be
subject to the approval of owner, such approval not to be unreasonably withheld.
Section 2.05. Performance Standards. The Marketing Agent shall be
responsible for the sales of the Greenhouse produce in accordance with the
Marketing Plan. The Marketing Agent shall be responsible for the means, methods
and techniques used in the marketing and sale of the produce of the Greenhouse.
ARTICLE III
MARKETING AND SALES
Section 3.01. Marketing. During the period beginning on the Date of
Initial Services and ending at the expiration of the Term of this Agreement, the
Marketing Agent shall use its best efforts to market all the Product of the
Greenhouse in accordance with the Marketing Plan in order to derive the greatest
possible Revenues therefrom. The Marketing Agent warrants that, during each
Contract Year, it will sell One Hundred (100%) Percent of the Premium Quality
tomatoes produced by the Greenhouse in accordance with the terms and conditions
of this Agreement and the Marketing Plan (as it is updated from time to time).
Section 3.02. Village Farms Trademark. Village Farms is a trademark
registered with the U. S. Patent and Trademark office, owned by Agro Power
Development, Inc., a New York Corporation ("APD"), an affiliate of the Marketing
Agent. APD has authorized the use of the Village Farms trademark by the
Marketing Agent and the Owner in conjunction with this Agreement. The owner
hereby acknowledges that the Marketing Agent and/or APD has full right and
authority to the unlimited use of this trademark on behalf of themselves and
other producers located throughout the United States and abroad, and that the
trademark is not limited to use in conjunction with tomatoes, but may be used
for any other type of produce, at APD's and the Marketing Agent's discretion.
All Premium Quality tomatoes produced by the Greenhouse will be labeled and/or
otherwise identified by the Village Farms trademark, or such other name as
determined by the Marketing Agent which would provide a greater profit to the
owner. Subject to the provisions of Section 9.01 herein, the Owner shall have
the right to use the trademark, Village Farms, following the termination of this
Agreement, until the Construction Loan Maturity Date (as defined in the Loan
Agreement) provided that (i) it pays the Marketing Agent the sum of $100,000 per
year, with the first payment due within thirty (30) days prior to the effective
date of the termination, and the subsequent payments due within thirty (30) days
prior to the anniversary of the termination, (ii) the use of the trademark is
limited to fruits and vegetables, including tomatoes produced at the Greenhouse
in Texas, and (iii) the Owner agrees in writing to abide by the conditions and
restrictions of the License Agreement, as same may be amended from time to time.
In the event the Owner fails to pay any of the required payments,
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the right to use the trademark shall terminate upon the expiration of the period
for which payment was last received. The terms of this provision shall survive
termination of this Agreement.
Section 3.03. Quality Control. The On-Site Supervisor shall exercise
its reasonable exercise in determining which of the Product of the Greenhouse
qualifies as Premium Quality. Best efforts will also be used to market tomatoes
which are of lesser quality, except for those tomatoes, which in the sole
discretion of the Marketing Agent, have no market value due to their inferior
quality. The Marketing Agent shall have total discretion (subject to the
requirement that it act reasonably) over which, if any of the lesser quality
tomatoes shall be labeled or identified with the trademark "Village Farms." The
Marketing Agent will have sole and absolute discretion (subject to the
requirement that it act reasonably) over the use of the trademark, in order to
maintain the high quality associated with the trademark, and to preserve the
market share of the Village Farms tomatoes, which will ultimately serve to
benefit the owner in the sale of its Product.
Section 3.04. Promotion. Marketing Agent, in conjunction with APD,
engages in, and shall continue to engage in general advertising, marketing and
promotional efforts in the food industry, on behalf of the trademark Village
Farms, and shall maintain these general marketing efforts throughout the term of
this Agreement, on at least the same level as is currently being employed, at
the sole expense of the Marketing Agent. In the event Marketing Agent deems it
to be in the best interests of the Owner to engage in strictly local advertising
efforts for the sole benefit of the Owner, such advertising campaign efforts
shall be detailed in the Marketing Plan prepared by the Marketing Agent pursuant
to the terms of this Agreement. In the event said local advertising plan is
approved by the Owner, the owner shall be solely responsible for the costs of
same.
Section 3.05. Sales Prices. The Owner acknowledges that the sale of its
Product by the Marketing Agent is based on market demands and price fluctuation
can occur seasonally and otherwise. Marketing Agent shall use commercially
reasonable efforts to obtain the highest possible price for the Product.
Section 3.06. Billing and Collections. At its cost, the Marketing Agent
will provide billing and collection services to the Owner consistent with the
Marketing Plan and such direction as may be reasonably given by the owner to the
Marketing Agent from time to time. All customers of the Owner shall be billed
under the name Village Farms. The Marketing Agent will maintain accurate books
and records of all sales, billing and collections, and shall prepare a monthly
report which shall be made available to the owner for review. Monies collected
by the Marketing Agent on behalf of the owner shall be held by the Marketing
Agent as trustee in a -separate account for the benefit for the Owner, and shall
be remitted to Owner (without deduction) on a weekly basis. Although the
Marketing Agent is responsible for billing and collection, the Owner shall bear
the risk of nonpayment by any of its customers, and shall determine if any
customers should be dropped, due to poor payment experience.
Section 3.07. Packaging, Shipping, and Delivery. The Marketing Agent
shall be responsible for the instructing and training of owner's employees who
will physically be
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responsible for the proper packaging of the Product. Marketing Agent shall be
responsible for all shipping and delivery arrangements for the Product, at
Owner's sole expense.
Section 3.08. Obligations of Owner. Throughout the Term of this
Agreement, owner shall furnish all Product exclusively to the Marketing Agent,
and shall use its best efforts to produce Premium Quality tomatoes, in the
quantity established in the business plan and budget prepared annually by the
Manager, pursuant to the terms of the Management Contract. All personnel of the
Greenhouse operation shall at all times be employees of Owner.
Section 3.09. Greenhouse Products. It is contemplated by this Agreement
that the Product of the Greenhouse will be tomatoes. However, if in the opinion
of the Marketing Agent, the Greenhouse operation can be made profitable by the
production of produce more profitable than tomatoes, then the Marketing Agent,
with the prior written consent of the Owner, may instruct the Manager to produce
a substitute product, and Marketing Agent's duties will also cover this
substitute product.
Section 3.10. No Obstruction. Until the termination of this Agreement,
Owner shall not, either through its agents or employees, take any action that
would prevent the Marketing Agent from marketing the Product in accordance with
this Agreement nor take any action that would materially obstruct the production
of Product at the Site, unless such prevention or obstruction is caused by
Uncontrollable Force or by the Marketing Agent or any of its Affiliates or any
of their respective employees, servants or agents.
ARTICLE IV
COMPENSATION AND PAYMENT
Section 4.01. Basic Compensation. In consideration of the performance
of Marketing Agent's obligations under the Agreement, Owner shall pay to the
Marketing Agent the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per
Contract Year (the "Compensation") in twelve equal monthly installments
beginning on the 1st day of the second month following the Date of Initial
Services and on each anniversary thereafter. For the period from the Date of
Initial Services through the first day of the month following the Date of
Initial Services, the Marketing Agent shall be entitled to a fee equal to the
product of (i) the Compensation and (ii) a fraction which shall be the number of
weeks of such period divided by 52, such amount to be payable on the first day
of the month following the Date of Initial Services. Such compensation will be
adjusted each January 1 of each Contract Year by the same percentage change in
the Consumer Price Index ("CPI"), provided the adjustment shall not cause the
Compensation to be less than the current Contract Year's Compensation. If for
any reason the Marketing Agent is unable to perform its obligations hereunder,
except as a result of termination of this Agreement because of a default by the
Marketing Agent hereunder or in accordance with Section 9.01 herein, then the
Marketing Agent shall be entitled to the continuation of the Compensation as
though the Agreement had been performed by the Marketing Agent, provided
however, that in the event that the Marketing Agent or Owner is unable to
perform its obligations under this Agreement because of an Uncontrollable Force,
then the Compensation shall be discontinued at any time after the later of the
first anniversary of the event creating the Uncontrollable Force or the date on
which the Marketing Agent's continued performance was disrupted.
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Section 4.02. Debt Service Coverage Ratio Test. The provisions of this
Section 4.02 shall remain in effect only for so long as the Owner is party to
any loan agreement with the Lenders, or is a party to any loan agreement related
to the refinancing of the obligations owing to the Lenders. In the event Owner's
actual debt service coverage ratio as defined in the Credit Agreement ("DSCR"),
for any calendar year falls below 1.5, then, in that event, no Compensation
shall be paid for any portion of that calendar year, however, the right to
Compensation shall accrue, provided the DSCR is greater than 1.0, and shall be
paid to the Marketing Agent in one sum, immediately following Owner's
achievement of a DSCR of at least 1.5. In the event that Compensation was paid
for any portion of the calendar year during which Owner's actual DSCR fell below
1.5, those payments shall be deducted from future payments due the Marketing
Agent hereunder, until the Owner has recouped same. Immediately upon the owner
achieving a DSCR of 1. 5, any payments which were withheld or recouped by Owner
shall be paid to the Marketing Agent in one sum. The Owner's DSCR shall be
measured as of December 31 of each year during the term of this Agreement.
Section 4.03. Bonuses. The Marketing Agent shall be entitled to a bonus
for each calendar year in which the Owner's actual DSCR equals or exceeds 1.5.
The Owner's DSCR shall be measured in accordance with Section 4.02. above. In
the event the Owner's actual DSCR equals or exceeds 1.5 but is less than 2.0,
the bonus shall be ONE HUNDRED THOUSAND DOLLARS ($100,000.00); if the actual
DSCR equals or exceeds 2.0 but is less than 2.5, the bonus shall be TWO HUNDRED
THOUSAND DOLLARS ($200,000.00); if the actual DSCR equals or exceeds 2.5 but is
less than 3.0, the bonus shall be THREE HUNDRED THOUSAND DOLLARS ($300,000.00);
and, if the actual DSCR equals or exceeds 3.0, the bonus shall be THREE HUNDRED
FIFTY THOUSAND DOLLARS ($350,000.00). The foregoing bonus amounts shall be
automatically adjusted upward each January 1 of each Contract Year, if the
Consumer Price Index ("CPI") for that year shows an increase; the adjustment
shall be equal to the percentage change in the CPI for that calendar year. In
the event that the Owner has no debt service whatsoever, under the Credit
Agreement or otherwise, the Marketing Agent shall be entitled to the maximum
bonus payable hereunder. The terms of this provision shall survive termination
of this Agreement.
Section 4.04. Payment of Bonuses. Bonuses shall be paid quarterly in
arrears based upon the projected DSCR contained in the business plan and budget
to be prepared by the Manager each year, pursuant to the Management Contract.
The Manager shall periodically review its projection of that year's DSCR, and,
if necessary, revise same to reflect the more current information available to
the Manager. If the projected DSCR is revised, either upward or downward to a
different threshold, the quarterly payment of the estimated bonus shall be
adjusted accordingly. In the event it appears, based upon the revised projected
DSCR, that the Marketing Agent has received overpayments, such overpayments
shall be deducted from future quarterly bonus payments until such overpayments
have been recouped. In the event the Marketing Agent's projected bonus for that
year has increased based upon the revised projected DSCR, the shortfall which
resulted from the quarterly payments made based upon the prior projected DSCR
shall be paid to the Marketing Agent with its next regular adjusted quarterly
bonus payment. Upon the determination of the actual DSCR, in the event the
Marketing Agent had received a Bonus for the prior Contract Year, to which it
was not entitled, and Owner has not yet recouped same, such overpayment may be
offset against either the Compensation payable hereunder or against future Bonus
payments, until it is recouped. In the event any Bonus was
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earned which has not yet been paid, the balance of the Bonus earned shall be
payable in one sum within thirty (30) days of the determination of Owner's
actual DSCR. In the event this Agreement has been terminated, any Bonuses which
Marketing Agent received to which it was not entitled, shall be immediately due
and payable to the Owner, upon the determination of such overpayment.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties of the Marketing Agent.
The Marketing Agent represents and warrants to Owner that it has substantial
experience in the marketing of tomatoes and that the On-Site Supervisor shall
either have substantial experience in the marketing of tomatoes, or shall have
been trained by a person with substantial experience in the marketing of
tomatoes. The Marketing Agent is a limited liability company duly organized and
validly existing under the laws of the State of Delaware. The Marketing Agent's
execution and delivery of this Agreement and the performance of its obligations
hereunder have been duly authorized by all requisite action on the part of the
Marketing Agent and this Agreement constitutes the Marketing Agent's legal,
valid and binding obligation, enforceable against the Marketing Agent in
accordance with its terms. The Marketing Agent's execution and delivery of this
contract and the performance of its obligations hereunder will not conflict
with, violate or result in a default under the Marketing Agent's certificate of
formation or operating agreement or any mortgage, indenture, agreement,
instrument or other contract to which the Marketing Agent is a party or by which
the Marketing Agent is bound.
ARTICLE VI
COVENANTS OF THE MARKETING AGENT
Section 6.01. Books, Records and Reports. The Marketing Agent shall
maintain books and records and shall prepare for the benefit of owner, a monthly
report showing the sales and collections of the Product, and such other matters
as the Owner may, from time to time, reasonably request be included in such
reports. All such books, records and reports shall be the sole and exclusive
property of the Owner, and the Marketing Agent shall keep such books and records
in such place or places so as to provide Owner (and its authorized
representatives) with maximum access thereto and the ability to make copies
thereof.
Section 6.02. Employment Practices. The Marketing Agent shall comply
with the applicable requirements of Executive Orders Nos. 11246 (Equal
Opportunity and Certification of Nonsegregated Facilities), 11701 (Affirmative
Action for Disabled Veterans and Handicapped of the Viet Nam Era), 11758
(Affirmative Action for Handicapped Workers), 11458 and 11625 (Minority Business
Enterprise) and all other Governmental Rules relating to employment practices to
the extent applicable.
Section 6.03. Nondisclosure. All reports, records and other information
related to the Site, the Greenhouse, the operations of the Owner, and the
performance of the Marketing Agent of its duties hereunder shall not be used by
the Marketing Agent for any purposes other than those contemplated hereby or
pursuant to the written consent of the Owner and shall not be disclosed by the
Marketing Agent to any other party or any other person or entity except with the
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prior written consent of the Owner. Furthermore, the Marketing Agent shall not
copy of reproduce any such information without the written consent of the Owner
(other than such reasonable copies as may be necessary to perform its duties and
obligations under this Agreement). The Marketing Agent shall also take
reasonable precautions to ensure against any breach of the obligations contained
herein which shall be no less stringent than the precautions and procedures that
it uses to protect its own proprietary information and which shall, at a
minimum, be deemed to include, without limitation, taking precautions to ensure
that it will only make such information available to those of its employees who
have a need to know it. Upon the expiration or termination of this Agreement,
Marketing Agent shall immediately return to the Owner all such information and
all whole or partial copies thereof and all other materials that may include, in
whole or in part, such information. All rights, whether arising under copyright,
patent, trade secret, or other laws, to such information are hereby reserved by
the owner.
Section 6.04. Compliance With Governmental Rules. The Marketing Agent
shall at all times market the Product and perform its other duties and
obligations hereunder in accordance with all applicable Governmental Rules. The
Marketing Agent shall be liable for all fines, fees, penalties, damages or other
costs imposed by a governmental authority imposed on or incurred or suffered by
the Owner which are attributable to Marketing Agent and/or its agents, servants
and employees in connection with the marketing and sales of the Product and the
performance of its other duties and obligations hereunder.
Section 6.05. Section 8 and Section 15 Declarations. The Marketing
Agent shall either cause Agro Power Development, Inc. to file, or shall itself,
file during the period between July __, 1997 and July 28, 1998, Section 8 and
Section 15 Declarations, required under 15 U.S.C. ss. 1058 and 15 U.S.C. ss.
1065 to extend the duration of the initial registration of the Trademark and to
establish the Trademark as incontestable.
Section 6.06. Section 9 Renewal. The Marketing Agent shall either cause
Agro Power Development, Inc. to file, or shall itself, file within six months
prior to the expiration of the original registration of the Trademark, or any
renewal thereof, an application for renewal of registration under 15 U.S.C. ss.
1059.
ARTICLE VII
GENERAL LIABILITY
Section 7.01. Indemnification. The Marketing Agent shall indemnify and
save harmless Owner and Lender, and their respective directors, officers,
agents, and employees from and against (i) any and all loss, damage, injury,
liability and claims thereof for injury to or death of a person, including, but
not limited to, personnel of the Marketing Agent, Lender and owner, (ii) any and
all loss of or damage to property and (iii) any and all loss of income by the
owner, resulting from the Marketing Agent's performance of this Agreement to the
extent the same is caused by the negligence or willful misconduct of the
Marketing Agent, any of its Affiliates, or any or their respective directors,
officers, agents or employees. Owner shall indemnify and save harmless the
Marketing Agent and Lender, and their respective directors, officers, agents,
and employees from and against (i) any and all loss, damage, injury, liability
and claims thereof for injury to or death of a person, including, but not
limited to, personnel of Owner, Lender and the Marketing Agent, (ii) any and all
loss of or damage to property, and (iii) any and all loss of
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income by the Marketing Agent, resulting from the Owner's performance of this
Agreement to the extent the same is caused by the negligence or willful
misconduct of owner, any of its Affiliates, or any of its directors, officers,
agents or employees.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Defaults. Upon the failure of any Party to substantially
comply with any of the obligations of such Party hereunder and continued
noncompliance for a period of thirty (30) days (except in the case where such
failure will result in injury to or damage or loss of perishable Product, in
which case the cure period shall be five (5) days) after written notification
the noncompliance is sent to such Party, the non-defaulting Party may, at its
option, by written notice to the defaulting Party, declare this Agreement to be
in default and at any time thereafter the non-defaulting Party may, at its sole
discretion, (a) exercise any right or pursue any remedy that may be available
under applicable law or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof and/or (b) terminate this
Agreement. The exercise of any rights or pursuit of any remedies pursuant to
this Agreement shall not relieve the defaulting Party of any of its obligations
and liabilities hereunder, all of which shall survive such exercise or pursuit.
To the extent permitted by law, and subject to any mandatory requirements of
applicable law, and further subject to Section 8.02, each and every right, power
and remedy herein specifically given to the non-defaulting Party or otherwise in
this Agreement shall be cumulative and shall be in addition to every other
right, power and remedy herein specifically given for now or hereafter existing
at law, equity or by statute and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised or pursued from
time to time and as often in such order as may be deemed expedient by the
nondefaulting Party, and the exercise or pursuit or the beginning of the
exercise or pursuit of any right, power or remedy shall not be construed to be a
waiver of the right to exercise or to pursue at any time or thereafter any other
right, power or remedy. No delay or admission by a Party in the exercise of any
right or power or in the pursuit of any remedy may impair any such right, power
or remedy or be construed to be a waiver of any default on the party of the
other Party or to be an acquiescence therein. No expressed or implied waiver by
a Party of any default hereunder shall in any way be, or be construed to be, a
waiver of any future or subsequent default hereunder. Neither Party shall be
considered to be in default for failure to perform, or delay in performing, any
obligation under this Agreement if performance is prevented, hindered or delayed
by an Uncontrollable Force (but only for so long as such Uncontrollable Force
continues unabated) . In such event, the Party which is unable, or anticipates
being unable, to perform shall (a) promptly notify the other Party in writing of
the nature, cause, date of commencement and expected duration of any such delay,
(b) indicate to what extent it will be prevented from performing and (c)
exercise due diligence to overcome such inability to perform with all reasonable
dispatch. In the event a Party claims excuse of performance as a result of an
Uncontrollable Force which continues unabated for more than one hundred twenty
(120) days, the Party that is not affected by such Uncontrollable Force shall
have the option to terminate this Agreement on written notice to the other
Party.
Section 8.02. Damages for Termination Without Cause. Notwithstanding
anything to the contrary in Section 8.01, the Parties agree that should owner
elect to terminate the Agreement without cause at any time, pursuant to Section
9.01 herein, then owner shall pay as liquidated
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damages to the Marketing Agent a sum equal to one-fourth (1/4) of the annual
amount of Compensation in effect at such early termination, which shall be
Owner's sole and exclusive liability and Marketing Agent's sole and exclusive
remedy, for such early termination without cause.
ARTICLE IX
TERM
Section 9.01. Term. Subject to Article VIII and Section 3.01, this
Agreement shall continue to be in effect for fifteen (15) years from the Date of
Initial Services; provided, however that the Term may be extended for additional
periods on terms acceptable to both Parties, such terms to be agreed upon not
later than three months prior to the expiration of the Term. Notwithstanding the
foregoing, the Owner shall be permitted to terminate this with or without cause,
upon ninety (90) days written notice to the Marketing Agent, subject to the
terms of the Credit Agreement. In the event the Owner terminates the Agreement
without cause, the right of the Owner to use the trademark, Village Farms, shall
terminate simultaneously with this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.01. Notices. Unless otherwise specifically provided herein,
all notices, requests and demands and other communications hereunder must be in
writing and shall be deemed to have been duly given (i) when delivered
personally, (ii) when sent by telefax to the telefax number below and followed
by a confirmation transmitted by an additional mode of communication provided
for herein, (iii) the second day following the day on which the same has been
delivered prepaid to a national (only in the case of notices within the
continental United States) or an international air courier service, or (iv) when
received if sent by the mails, certified or registered, postage prepaid, in each
case addressed to the party to whom such notice is being given at the following
addresses:
OWNER: Village Farms of Texas, L.P.
c/o Agro Power Development, Inc.
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: President
Telefax: 000-000-0000
and
Village Farms of Texas, L.P.
c/o Cogentrix of Fort Xxxxx I, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telefax: 000-000-0000
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MARKETING
AGENT: Village Farms, L.L.C.
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: President
Telefax: 000-000-0000
Any party may change the addresses to which notices to it are to be sent by
giving notice of such change to the other parties in accordance with the
Section..
Section 10.02. Severability. Any provision of this Agreement that shall
be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provisions in any other jurisdiction. To the extent
permitted by applicable law, the Marketing Agent and Owner hereby waive any
provision by law that renders any provision hereof prohibited or unenforceable
in any respect.
Section 10.03. Amendment. Neither this Agreement nor any other terms
hereof may be terminated, amended, supplemented, waived or modified orally, but
only by an instrument in writing signed by the Party against which enforcement
of the termination, amendment, supplement, waiver or modification shall be
signed.
Section 10.04. Assignment. Neither Party may assign any of their
respective rights under this Agreement without the prior written consent of the
other Party; provided, however, that owner may assign its rights hereunder to
the Lender. Any assignment not permitted by this Section 10.04 shall be void.
Section 10.05. Relationship of the Parties. It is agreed and understood
by the Parties that the Marketing Agent is an independent contractor with
respect to Owner. No action, admission or instruction shall be deemed to make
the Marketing Agent an employee, agent or partner of Owner or to create any
other relationship among the Parties.
Section 10.06. Headings; Etc. The Table of Contents and headings of the
various articles and sections of this Agreement are for the convenience of
reference only and shall not modify, define or limit any other terms and
provisions of this Agreement.
Section 10.07. Governing Law. This Agreement shall in all respects,
including all matters of construction, validity and performance, be governed by
and construed in accordance with the laws of the State of New York.
Section 10.08. Parties in Interest; Limitation and Rights of Others.
This provisions of this Agreement shall be binding upon, and inure to the
benefit of, the Parties hereto and their respective successors and permitted
assignees. Nothing in this Agreement, whether expressed or implied, shall be
construed to give any Person (other then the Parties hereto and their respective
successors and permitted assignees) any legal or equitable right, remedy or
claim under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
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Section 10.09. Arbitration. (a) In the event a dispute arises between
or among the Parties relating to the terms of this Agreement and any Party gives
written notice of such dispute to the other Party, then each of the Parties
involved in such dispute shall refer the dispute to its senior management. The
senior management of each Party shall meet and confer regarding the resolution
of the dispute. In the event a resolution of such dispute is not reached within
30 days of the written notice, then either of the Parties may submit the dispute
to arbitration in accordance with Section 10.09.(b).
(b) Arbitration of disputes pursuant to this Section 10.09.(b) shall be
held in New York, New York, unless otherwise agreed to by the Parties, under the
commercial arbitration rules of the American Arbitration Association, and shall
be heard by three arbitrators selected in accordance with such rules. Each
arbitrator shall have at least five years experience in the United States in a
profession or professions related to the subject matter involved in the dispute
and shall not be a past or present officer, director or employee of, or have any
interest in or material relationship with, any Partner or any Affiliate of any
Partner. Any arbitral award shall be final and binding and may be entered by any
Party in any state or Federal court having jurisdiction thereof. Costs of
arbitration (including reasonable attorney's fees and arbitration costs) shall
be paid either equally or by the Parties to the arbitration or in accordance
with the decision of the arbitrators.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed by the respective officers thereunto duly authorized as of the date and
year first above written.
VILLAGE FARMS, L.L.C.
By: Agro Power Development, Inc.,
its managing member
By: ___________________________________
Name:__________________________________
Title:_________________________________
VILLAGE FARMS OF TEXAS, L.P.
By: __________________________________
Title: ________________________________
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Agro Power Development Inc., the owner of the Village Farms trademark,
hereby consents to the use of the Village Farms trademark, as set forth in this
Agreement.
AGRO POWER DEVELOPMENT, INC.
By: __________________________________
Title:________________________________
EXHIBIT A
LICENSE ARGUMENT FOR
THE TRADEMARK VILLAGE PARKS
This License Agreement is entered into this ____ day of February, 1996,
by and between Agro Power Development, Inc., a New York Corporation ("Licensor")
with an address of 00 Xxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000, and Village
Farms, L.L.C., a Delaware Limited Liability Company ("Licensee"), with an
address at 00 Xxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Licensor is involved directly, and indirectly through several
affiliates, with the hydroponic production of various fruits and vegetables,
including tomatoes, and, in connection therewith, is the owner of the trademark
"Village Farms" (the "Trademark") which is registered with the United States
Patent and Trademark Office (the "Trademark Registration"); and
WHEREAS, Licensee is a marketing agent of hydroponically produced
fruits and vegetables, including tomatoes, with expertise and ability in the
marketing, distribution and sale of such goods at both wholesale and retail; and
WHEREAS, Licensor is affiliated with Licensee, as Licensor is the owner
of a 99% interest in Licensee; and
WHEREAS, Licensee desires to be licensed by Licensor in the use of the
Trademark and Trademark Registration exclusively in connection with the
marketing, distribution and sale of hydroponically produced fruits and
vegetables by Licensor, Licensee, any of their Affiliates (defined below), and
other third parties; and
WHEREAS, Licensor desires to license Licensee's use of the Trademark
and Trademark Registration; and
WHEREAS, as part of the obligations of the license, Licensee undertakes
to pay Licensor compensation as herein described;
NOW, THEREFORE, in consideration of the premises and covenants and
agreements herein contained, the parties to this Agreement covenant and agree as
follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following terms shall have the
meanings indicated:
1.1. "Affiliate" shall mean each person which, directly or indirectly,
controls or is controlled by or is under common control with such designated
Person and, without limiting the generality of the foregoing, shall include (a)
any Person which beneficially owns or holds ten percent (10%) or more of any
class or voting securities of such designated Person or ten percent (10%) or
more of the equity interest in such designated Person and (b) any Person of
which such designated Person beneficially owns and holds ten percent (10%) or
more of any class of voting securities or in which such designated Person
beneficially owns or holds ten percent (10%) or more of the equity interest. For
the purposes of this definition, the terms "controls," "controlled by," and
"under common control with" as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person whether through the
ownership of voting securities or by contract or otherwise.
1.2. Agreement shall mean this document and any exhibits and appendices
hereto, as may be amended, modified or supplemented from time to time.
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1.3. "Licensed Goods" shall mean fruits and vegetables, including
tomatoes, hydroponically produced by Licensor, Licensee, the Affiliates of
either Licensor or Licensee, and other third parities who are approved by
Licensor.
1.4. "Material Requiring Approval" means the Licensed Goods and any and
all packaging, advertising, promotional and displayed material upon which or in
connection with which the Trade Xxxx is used.
1.5. "Term and Extended Term" are the periods expressly set forth in
this Agreement.
1.6. "Territory" is the United States.
1.7. "Trademark" means "Village Farms" used in any form or format,
style or design, as applied to the Licensed Goods, as well as any goodwill and
rights, at common law or other wise, pertinent thereto, and refers to
trademarks, service marks and trade names.
ARTICLE II
LICENSE
2.1. Licensor hereby grants to Licensee the use of the Trademark upon
or in connection with Licensed Goods, which license shall be exclusive, subject
to the continued use of same by Licensor. This grant is throughout the Territory
and is nondivisible, and non-assignable, except as expressly set forth herein.
2.2. No other right or license is granted by Licensor to Licensee,
either expressed or implied for any other trademark, trade name, copyright or
intellectual property right owned, possessed, or licensed by or to Licensor.
Licensee shall not use the Trademark in any manner not specifically authorized
by this Agreement.
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ARTICLE III
RIGHT OF ASSIGNMENT
3.1. Licensee is hereby expressly permitted to assign or sublicense any
of its rights hereunder, to any Affiliate of Licensor or Licensee, or other
third parties subject to the prior written consent of Licensor.
3.2. Notwithstanding the foregoing, no assignment shall be effective
unless and until the assignee agrees in writing, that its use of the Trademark
shall be subject to all of the restrictions regarding its use, as are set forth
herein.
ARTICLE IV
COMPENSATION
4.1. Licensee agrees to pay compensation to Licensor of One Hundred
Thousand Dollars ($100,000) per year, payable quarterly, in arrears, in equal
payments of Twenty-five Thousand Dollars ($25,000) each, with the first
quarterly payment due October 1, 1996, and subsequent payments due on the first
day of each January, April, July, and October, thereafter, during the Term or
any Extended Terms of this Agreement,
4.2. The compensation set forth in Section 4.1 above shall be subject
to adjustment each January 1, during the Term or Extended Term of this
Agreement, by the same percentage change in the Consumer Price Index ("CPI") ,
provided the adjustment shall not cause the compensation to be less than the
compensation paid for the prior year.
ARTICLE V
TERM
5.1. The term of this Agreement shall end on December, 2007.
5.2. Licensee may extend this Agreement for two (2) extended terms of
five (5) years each, upon providing written notice to Licensor no later than
ninety (90) days before the end of
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each term; provided, however, that to qualify for any Extended Terms, Licensee
must be in full compliance with all terms and conditions of this Agreement.
ARTICLE VI
QUALITY CONTROL AND MAINTENANCE
6.1. Licensee shall use the Trademark in the form that Licensor shall,
at its sole discretion, approve in writing, on or in connection with the
Licensed Goods. Licensee shall not otherwise affix or use such Trademark in
connection with, or use any other trademark or trade name in connection with the
Licensed Goods without Licensor's prior written approval.
6.2. To assure the appearance, quality and distribution of the Licensed
Goods is consistent with the Trademark used to identify them, Licensor retains
the right to participate at each stage of the production of the Licensed Goods
and to approve or disapprove of the appearance and/or quality of the Licensed
Goods, and/or their distribution. Notwithstanding the foregoing, Licensor shall
be deemed to have approved the use of the Trademark in connection with any
produce which qualify as "Premium Quality," or any other equivalent standard as
established by the U.S. Department of Agricultural.
6.3. The Licensor shall file during the period between July 28, 1997
and July 28, 1998, Section 8 and Section 15 Declarations, required under 15
U.S.C. ss. 1058 and 15 U.S.C. ss. 1065 to extend the duration of the initial
registration of the Trademark and to establish the Trademark as incontestable.
6.4. The Licensor shall file, within six months prior to the expiration
of the original registration of the Trademark, or any renewal thereof, an
application for renewal of registration under 15 U.S.C. ss. 1059.
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ARTICLE VII
TRADEMARK REGISTRATION
7.1. At the request of Licensor, and without compensation to Licensee,
Licensee shall promptly do such acts and execute, acknowledge, and deliver all
those papers that may be necessary or desirable, in the sole discretion of
Licensor, to obtain, maintain, protect and/or vest in Licensor the entire right,
title, and interest in and to the Trademark in all countries of the World,
including rendering such assistance as Licensor may request in any litigation,
patent and trademark office proceeding, or other proceeding. All use of the
Trademark licensed by this Agreement and used on any good by Licensee shall
inure to the benefit and be the property of Licensor.
ARTICLE VIII
VALIDITY OF RIGHTS
8.1. Licensee shall not contest Licensor's ownership of the Trademark
or Licensee's obligation to assign any right under this Agreement, including any
rights Licensee may create in the Trademark. Licensee shall not contest or
impair these rights, either directly or indirectly, or in any way assist others
to contest or impair the same and hereby expressly acknowledge Licensor's
superior rights. This obligation shall survive any termination of this
Agreement.
ARTICLE IX
WARRANTIES
9.1. Licensor warrants that it has all right, title, and interest in
and to the Trademark and the right to license the Trademark and Trademark
Registration, to enter this agreement, and to agree to the terms and conditions
of this Agreement.
9.2. Licensee warrants that it has the right to enter into this
Agreement and agree to the terms and conditions of this Agreement.
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9.3. Licensee shall indemnify, hold harmless, and defend Licensor and
its officers, director, agents, and employees (and pay any and all related
attorneys fees) from and against:
9.3.1. Any alleged unauthorized use of any trade xxxx (not including
any right licensed under this Agreement by Licensee);
9.3.2. Any alleged liable or slander against, or invasion of, the right
of privacy or publicity or any other similar right of any third party (not
including any right licensed under this Agreement).
9.3.3. Any alleged defect in any Licensed Good despite Licensor's
approval of that Licensed Good, and any claim by a third party resulting from
Licensee's breach or alleged breach of any term or condition of this Agreement.
9.4. Licensee warrants that it shall promptly obtain and maintain, at
its sole cost and expense, advertiser's liability insurance naming Licensor, its
officers, directors, agents, and employees as additional insureds, in the amount
of $1,000,000.00 "Combined Single Limit."
9.5. Licensee warrants that it shall use best efforts to procure the
greatest volume of sales of the Licensed Goods consistent with high quality and
to make satisfactory arrangements for their distribution, advertising and
promotion.
ARTICLE X
LITIGATION
10.1. If the Licensee shall become aware of any infringement by third
parties of any right licensed under this Agreement or any other use of the
trademark or term confusingly similar to the trademark, it shall promptly notify
Licensor in writing of that infringement or use, and shall assist and supply
such information and such acts that are reasonably necessary or desirable in
relation to that infringement or use. Licensor shall take only those steps in
its sole
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discretion, as are necessary to enforce its rights, including the engagement of
legal counsel of its own choosing.
10.2. Licensor agrees to undertake to enforce any claim of infringement
of the Trade Xxxx subject to a cap of Fifty Thousand Dollars ($50,000).
ARTICLE XI
GENERAL
11.1. Licensee shall make no assignment, pledge or hypothecation of
this Agreement or its performance under this Agreement except as set forth above
in Article III.
11.2. Any notice or statement by any party shall be deemed to be
sufficiently given when (i) delivered personally, (ii) sent by telefax to the,
telefax number below and followed by a confirmation transmitted by an additional
mode of communication provided for herein, (iii) the second day following the
day on which the same has been delivered prepaid to a national air courier
service, or (iv) when received if sent by certified mail, postage prepaid, in
each case addressed to the party to whom such notice is being given at the
following address:
Licensor: Agro Power Development, Inc.
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: President
Telefax: (000) 000-0000
Licensee: Village Farms, L.L.C.
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: President
Telefax: (000) 000-0000
Any party may change the addresses to which notice are to be sent by given
notice of such change to the other party in accordance with this section.
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11.3. This Agreement shall in all respect, including all matters of
construction, validity and performance, be governed by and construed in
accordance with the laws of the State of New York.
11.4. No amendment or modification of this Agreement shall be valid or
binding unless the same shall be made in writing and signed on behalf of each
party by their respective proper agents, duly authorized to do so.
11.5. Arbitration. (a) In the event a dispute arises between or among
the Parties relating to the terms of this Agreement and any Party gives written
notice of such dispute to the other Party, then each of the Parties involved in
such dispute shall refer the dispute to its senior management. The senior
management of each Party shall meet and confer regarding the resolution of the
dispute. In the event a resolution of such dispute is not reached within 30 days
of the written notice, then either of the Parties may submit the dispute to
arbitration in accordance with Section 11.5.(b).
(b) Arbitration of disputes pursuant to this Section 11 - 5. (b) shall
be held in New York, New York, unless otherwise agreed to by the Parties, under
the commercial arbitration rules of the American Arbitration Association, and
shall be heard by three arbitrators selected in accordance with such rules. Each
arbitrator shall have at least five years experience in the United States in a
profession or professions related to the subject matter involved in the dispute
and shall not be a past or present officer, director or employee of, or have any
interest in or material relationship with, any Partner or any Affiliate of any
Partner. Any arbitral award shall be final and binding and may be entered by any
Party in any state or Federal court having jurisdiction thereof. Costs of
arbitration (including reasonable attorney's fees and arbitration
-9-
costs) shall be paid either equally or by the Parties to the arbitration or in
accordance with the decision of the arbitrators.
11.6. Article Titles of this Agreement are for the convenience of
reference only and shall not modify, define or limit any other terms and
provisions of this Agreement.
11.7. The failure to enforce any of the terms and conditions of this
Agreement by either of the parties to this Agreement shall not be deemed a
waiver of any other right or privilege under this Agreement or the waiver of the
right to thereafter claim damages for any deficiencies resulting from any
misrepresentation, breach of warranty for nonfulfillment of any obligation of
any other party to this Agreement.
11.8. This provision of this Agreement shall be binding upon, and inure
to the benefit of, the Parties hereto and their respective successors and
permitted assignees. Nothing in this Agreement, whether expressed or implied,
shall be construed to give any Person (other then the Parties hereto and their
respective successors and permitted assignees) any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
11.9. This Agreement may be signed in two (2) or more counterparts,
each of which shall be an original.
11.10. The preamble to this Agreement is hereby incorporated and by
this reference shall become part of the Agreement as if set forth in the
Agreement word for word.
11.11. The parties to this Agreement shall at any and all times, upon
request by the party, make, execute, and deliver any and all such other further
instruments as may be necessary or desirable for the purpose of giving full
force and effect to the provisions of this Agreement, without charge.
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IN WITNESS WHEREOF, each of the parties to this Agreement have caused
this Agreement to me executed by a duly authorized representative.
AGRO POWER DEVELOPMENT, INC.
By:
-------------------------------------
Name: J. Xxxxx Xxxx
Title: Vice President
Date: February 13, 1996
VILLAGE FARMS, L.L.C.
By: Agro Power Development, Inc.,
its managing member
By:
-------------------------------------
Name: J. Xxxxx Xxxx
Title: Vice President
Date: February 13, 1996
