Exhibit 10.59
TERMINATION
AGREEMENT
THIS TERMINATION
AGREEMENT (this
“Agreement”) is
dated as of the 13th day of
December, 2007 (the “Effective Date”), by and
between Mac Farms of Hawaii, LLC, a Delaware limited liability company (
“Mac Farms”)
and Kapua Orchard Estates, LLC, a Delaware limited liability company (
“Kapua”) (both
collectively sometimes called “Seller”), and ML
Macadamia Orchards, L.P. ( “MLP” or “Buyer”), a Delaware
limited partnership.
NOW, THEREFORE,
in consideration of the
foregoing and of the representations, warranties and mutual covenants contained
herein, and for other good and valuable consideration
the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
1.
Defined Terms. Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in that certain Acquisition
Agreement, dated as of May 23, 2007, as amended on July 19, 2007, and
November 23, 2007, by and among Mac Farms, Kapua and Buyer
(the “ Acquisition Agreement ” ).
All defined terms contained in the Acquisition Agreement necessary to properly understand
and construe the provisions below shall survive the
termination thereof for interpretational purposes only.
2.
Termination.
Pursuant to
Section 9.1(a) of the Acquisition Agreement, the
parties hereby mutually
terminate the Acquisition Agreement effective as of the Effective
Date in all respects. For the
avoidance of doubt, no provision in the Acquisition Agreement
shall survive the
termination thereof, including, but not limited to,
Section 9.2 thereof. Further, the parties hereto agree that none of them shall
make any claim against the other party or assist and/or
encourage any other Person to make a claim in connection with the
termination of the Acquisition Agreement or due to the fact that
the transactions contemplated by the Acquisition Agreement were not
consummated.
3.
Reimbursement
and Delivery Covenants.
a.
Buyer agrees to reimburse Seller, within ten (10) days after
receipt of a reimbursement request from Seller, accompanied
by the relevant invoices of the Seller’s Accountants, for all
payments of all fees and expenses paid to the Seller’s
Accountants by Seller in
connection with their: (i) assistance in preparing the SEC
Financial Statements and
the audit by Buyer’s Accountants; (ii) review of the
Buyer’s Proxy Statement; and (iii) preparation
of certain financial statements, management discussion and analysis
and other related financial
information for the periods ended September 30, 2006, and
September 30,
2007, intended for inclusion in the Buyer’s Proxy Statement,
which amount is U.S. Dollars Fifty Three Thousand Four
Hundred Ninety-Nine & 66/100ths ($53,499.66).
b.
In
connection with the title search performed on behalf of Buyer,
Seller agrees to
reimburse Buyer in the amount of Three Thousand Five Hundred U.S.
Dollars ($3,500.00) within ten (10) days after receipt of
reimbursement request from Buyer, accompanied by a copy of such
title search.
4.
Mutual
Release of Claims. Other than the obligations
explicitly set forth herein, Buyer and Seller hereby
release and discharge each other and the Seller’s members,
subsidiaries, affiliates, officers, directors, employees, and
agents and their respective successors and assigns (collectively, the “Seller’s Affiliated
Parties”) from any and all demands, suits, actions,
causes of action or
claims of any kind, complaints, obligations, losses, damages, or
fees (including attorneys’ fees) whether at law or in
equity, direct or indirect, known or unknown
(collectively,
“ Claims”), which either party ever
had, now has, or may have against the other party, the
Seller’s Affiliated Parties,
individually or collectively, arising out of, relating to, or in
connection with any matter, thing or event,
including, but not limited to, the Acquisition Agreement,
the transactions
contemplated thereby or the termination thereof.
5.
Indemnification Against Claims by Buyer’s
Securityholders. Buyer agrees to
indemnify, hold harmless,
and defend Seller and each of Seller’s Affiliated Parties,
from and against any and all
Claims, which may be threatened or brought by the Buyer’s
unit holders and/or
other securityholders and their respective successors and assigns
arising out of, relating to, or in connection with the termination of
the Acquisition Agreement, the Acquisition Agreement or the
transactions contemplated thereby.
6.
Indemnification
Against Claims by Seller’s Members.
Seller agrees to
indemnify, hold harmless,
and defend Buyer and each
