AGREEMENT OF SALE
Exhibit
10.78
AGREEMENT
OF SALE
THIS
AGREEMENT by and between IMAGING DIAGNOSTIC SYSTEMS, INC. a Florida
corporation (“Seller”), and SUPERFUN B.V., a corporation formed under the laws
of The Netherlands (“Purchaser”), is made as of September 13, 2007
(the “Effective Date”).
W
I T N E S S E T H:
1. Sale.
Seller
has agreed and does hereby agree to sell and convey unto Purchaser and Purchaser
has agreed and does hereby agree to purchase from Seller, in consideration
of
the covenants contained herein, and subject to the conditions hereinafter set
forth, that certain commercial building located at 0000 XX 00xx Xxxxx,
Xxxxxxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxx, 00000, and being more particularly described on Exhibit
“A”, attached hereto and made a part hereof for all purposes, together with all
and singular the right and appurtenances pertaining thereto, including any
right, title and interest of Seller in and to adjacent streets, roads, alleys
or
rights-of-way (such real estate, rights and appurtenances being herein referred
to as the “Property”).
2. Purchase
Price.
The
total
purchase price to be paid to Seller by Purchaser for the Property is Four
Million Four Hundred Thousand and 00/100 ($4,400,000.00) Dollars (the “Purchase
Price”) payable as follows:
(a) First
Deposit. Purchaser has deposited with Seller the sum of One
Million One Hundred Thousand and 00/100 ($1,100,000.00) Dollars (“First
Deposit”). Seller acknowledges receipt of the First Deposit.
(b) Second
Deposit. On or before September 24, 2007, Purchaser shall deposit
with Seller, a deposit in the amount of One Million One Hundred Thousand Dollars
and 00/100 ($1,100,000.00) Dollars.
(c) Third
Deposit. On or before November 8, 2007, Purchaser shall deposit
with Seller a deposit in the amount of One Million One Hundred Thousand and
00/100 ($1,100,000.00) Dollars.
The
First Deposit, Second Deposit and
Third Deposit shall be collectively referred to as the “Deposit”.
(d) Cash
to Close. On December 23, 2007, Purchaser shall pay Seller the
amount of One Million One Hundred Thousand and 00/100 ($1,100,000.00)
Dollars.
3. Title
and Survey Matters.
(a) Condition
of Title. At Closing, Seller shall convey good, marketable and
insurable fee simple title to Purchaser by means of a Special Warranty Deed
in
recordable form conveying the Property to Purchaser free and clear of all
claims, liens and encumbrances except for those items (the “Permitted
Exceptions”) referred to in items 6, 7 and 8 of Schedule B of the Title Policy
referred to in paragraph 3(b) hereof.
(b) Preliminary
Title Report. Attached hereto as Exhibit “B” is a copy of
Seller’s policy of title insurance showing title to the Property to be held by
Seller (“Title Policy”).
(c) Defects
and Cure. The Title Policy as described in this Paragraph 3 is
referred to as “Title Evidence” and has been provided to
Purchaser. Purchaser shall have fifteen (15) days from the Effective
Date within which to cause the same to be examined and to notify the Seller
of
any objections. If the Title Evidence discloses liens, encumbrances,
exceptions, objections or defects which render title to the Property
unmarketable under Florida law (collectively “Title Defects”), other than the
Permitted Exceptions and those which can and shall be discharged by Seller
at or
before Closing, said Title Defects shall, as a condition precedent to
Purchaser's obligation to Close, be cured and removed by Seller within thirty
(30) days (“Cure Period”)after written notification by Purchaser to Seller of
such Title Defect(s) and the Closing Date shall be postponed, if
necessary. If Seller fails to remove, discharge or correct all Title
Defects within the Cure Period, then Purchaser may, at its option, either (i)
terminate this Agreement by written notice to the Seller given within ten (10)
days after the expiration of the cure period; or (ii) proceed to close and
accept title “as is” without reduction in the Purchase Price (except for any
claim of lien which can be removed by the payment of money or the transfer
to
bond).
4. Escrow
of Closing Documents.
On
the
Effective Date, Seller has executed and delivered to Escrow Agent: a) a Special
Warranty Deed conveying title to the Property to the Purchaser; b) a Seller’s no
lien, gap and FIRPTA Affidavit and c) Closing Statement (copies of which are
attached as Exhibit “C”) (collectively, the “Closing Documents”). The
Closing Documents shall be held in escrow and shall not be delivered by Escrow
Agent to Purchaser until the Closing Date provided that Purchaser complies
with
all of its obligations as set forth in this Agreement. Upon
assignment of this Agreement to the Assignee under paragraph 17(g) hereof,
Seller re-execute the Closing Documents reflecting the Assignee as the
buyer/grantee.
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5. Representations
and Warranties of the Seller.
Seller
represents and warrants to the Purchaser only the following:
(a) Seller
is the fee simple owner of the Property.
(b) The
Seller is a validly existing corporation, in good standing under the laws of
the
State of Florida.
(c) Seller’s
execution of and performance under this Agreement is pursuant to authority
validly and duly conferred upon Seller and its signatory hereto.
(d) There
are no parties in possession of any portion of the Property as lessees, tenants
at sufferance or trespassers.
(e) Between
the date hereof the Closing, no part of the Property will be alienated,
encumbered or transferred in favor of or to any party whatsoever and Seller
will
execute no instrument which will affect title to the Property unless such
actions taken by Seller (i) can be released prior to or at Closing; or (ii)
are
taken in conjunction with Seller’s applications and procedures necessary for the
proposed development of the Property.
(f) That
to the best of Seller’s knowledge, and without investigation, and except as to
any applications by Seller regarding the development of the Property, there
are
no pending matters of litigation suits or other legal or administrative actions
or arbitration pending against or with respect to the Property or any part
thereof, nor has Seller received written notice of the threat of any such
outstanding actions, suits or other proceedings. No attachments,
execution proceedings, assignments or bankruptcy or insolvency proceedings
are
pending or threatened against or contemplated by Seller.
(g)
Seller is a validly organized and existing Florida corporation, and is fully
authorized to do business in the State of Florida, and Seller is fully
authorized to execute and deliver this Agreement and all other documents
contemplated hereunder, and take all actions required hereunder, without the
consent or approval of any other party, person or entity, including without
limitation any state or federal court.
In
the
event any of the above representations and warranties are not true and correct
as of the Closing Date, Purchaser may: a) proceed to close this transaction
in
“as is” condition or b) cancel this transaction in which the Deposit shall be
refunded to Purchaser and all parties shall be released of their obligations
under this Agreement. Except as provided below, all warranties of
Seller set forth in this paragraph shall not survive the Closing and the
delivery of the Special Warranty Deed and all warranties shall merge into the
Closing or Special Warranty Deed. The foregoing limitation on such
representations and warranties, shall not, however, invalidate or limit in
any
way, any and all representations and warranties that Seller has made in the
Closing Documents.
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The
following disclaimer is subject to the foregoing representations and warranties
made by Seller in accordance with the terms of the preceding
paragraph:
DISCLAIMER
OF REPRESENTATIONS OR WARRANTIES BY SELLER. EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE AND DOES NOT MAKE ANY
REPRESENTATIONS, WARRANTIES OR OTHER STATEMENTS AS TO THE CONDITION OF THE
PROPERTY NOR TO THE ZONING, USE OR ENTITLEMENTS OF SAME AND PURCHASER
ACKNOWLEDGES THAT AT CLOSING IT IS PURCHASING THE PROPERTY, ON AN “AS IS, WHERE
IS” BASIS AND WITHOUT RELYING ON ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ITS AGENTS OR BROKERS AS TO ANY
MATTERS CONCERNING THE PROPERTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE OR ARE MADE AND
NO
RESPONSIBILITY HAS BEEN OR IS ASSUMED BY SELLER OR BY ANY PARTNER, OFFICER,
PERSON, FIRM, AGENT OR REPRESENTATIVE ACTING OR PURPORTING TO ACT ON BEHALF
OF
SELLER AS TO THE PHYSICAL CONDITION OF THE PROPERTY NOR THE ZONING, USE OR
ENTITLEMENTS OF SAME OR THE VALUE, EXPENSE OF OPERATION OR INCOME POTENTIAL
THEREOF OR AS TO ANY OTHER FACT OR CONDITION WHICH HAS OR MIGHT AFFECT THE
PROPERTY OR OTHER CONDITION, VALUE, EXPENSE OF OPERATION OR INCOME POTENTIAL
OF
THE PROPERTY OR ANY PORTION THEREOF. THE PARTIES AGREE THAT ALL UNDERSTANDINGS
AND AGREEMENTS HERETOFORE MADE BETWEEN THEM OR THEIR RESPECTIVE AGENTS OR
REPRESENTATIVES ARE MERGED IN THIS AGREEMENT AND THE SCHEDULES AND EXHIBITS
HERETO ANNEXED, WHICH ALONE FULLY AND COMPLETELY EXPRESS THEIR AGREEMENT, AND
THAT THIS AGREEMENT HAS BEEN ENTERED INTO AFTER FULL INVESTIGATION, OR WITH
THE
PARTIES SATISFIED WITH THE OPPORTUNITY AFFORDED FOR INVESTIGATION, NEITHER
PARTY
RELYING UPON ANY STATEMENT OR REPRESENTATION BY THE OTHER UNLESS SUCH STATEMENT
OR REPRESENTATION IS SPECIFICALLY EMBODIED IN THIS AGREEMENT OR THE EXHIBITS
ANNEXED HERETO. WITHOUT LIMITING ANY OF THE EXPRESS REPRESENTATIONS AND
WARRANTIES IN THIS AGREEMENT, PURCHASER ACKNOWLEDGES THAT SELLER HAS REQUESTED
PURCHASER TO INSPECT FULLY THE PROPERTY AND INVESTIGATE ALL MATTERS RELEVANT
THERETO AND, WITH RESPECT TO THE PROPERTY, TO RELY SOLELY UPON THE RESULTS
OF
PURCHASER'S OWN INSPECTIONS OR OTHER INFORMATION OBTAINED OR OTHERWISE AVAILABLE
TO PURCHASER.
/s/
E. P.
_____________________________
PURCHASER’S
INITIALS
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6. Conditions
to Purchaser’s Obligations.
In
addition to the performance by the Seller hereunder, the obligations of the
Purchaser to consummate the transactions contemplated hereby are subject to
the
representations and warranties of Seller set forth in this Agreement shall
be
true on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date
(any
of which may be waived in whole or in part by Purchaser at or prior to the
Closing).
7. Closing
and Related Matters.
(a) The
Closing Date and Conditions. The delivery of the Closing
Documents and other acts necessary to accomplish the transactions provided
for
in this Agreement (the “Closing”) shall take place on December 23, 2007 (the
“Closing Date”).
(b) Prorations. There
shall be no prorations for real estate or personal property taxes, service
contracts or any other matters against the Purchase Price, including the
Deposits and the Cash to Close. However, to the extent that there are
any liens, mortgages or judgments which are capable of being satisfied by the
payment of a monetary sum, Seller shall use so much of the Deposits and/or
Cash
to Close as is necessary to satisfy such items on the Closing Date and the
Closing Statement shall be revised accordingly. All certified
assessments as of the Closing Date for public improvements shall be paid by
Seller on the Closing Date and all pending assessments as of the Closing Date
for public improvements shall be assumed by
Purchaser.
(c) Seller's
Obligations at Closing. At Closing, Seller shall (i) (i) execute
and deliver any and all other documents reasonably necessary or reasonably
advisable to consummate the transactions contemplated hereby and (ii) execute
the Lease attached hereto as Exhibit “D” (the “Lease”). At closing,
Escrow Agent shall deliver the Closing Documents to Purchaser upon Purchaser’s
satisfaction of its obligations under Section 7(d) hereof.
(d) Purchaser's
Obligations at Closing. At Closing, Purchaser shall (i) pay to
Seller the Cash to Close which constitutes the balance of the Purchase Price,
(ii) execute and deliver the Closing Statement held in escrow by Escrow Agent
and the Lease and (iii) execute and deliver all documents reasonably
necessary or reasonably advisable to consummate the transaction contemplated
hereby.
(e) Closing
Costs. Seller shall pay the following costs in connection with
the Closing: (i) Documentary stamps which are required to be affixed
to or paid in connection with the instrument of conveyance; (ii) the cost of
recording any corrective instrument; and (iii) the cost of releasing any and
all
mortgages or other liens on the Property.
Purchaser
shall pay (i) the cost of recording the Deed; and (ii) the cost of the title
search and examination for the Property and the owner’s title insurance premium
(if Purchaser elects to purchase such title insurance).
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8. GAP
Closing.
The
Closing shall take place in such a fashion that the Title Company selected
to
issue the Title Policy to the Purchaser shall insure the gap in time between
the
last examination of title to the Property and the recording of the Deed to
the
Property in favor of Purchaser, the Closing cash proceeds due Seller hereunder
shall be disbursed to Seller upon the written undertaking of the insurance
of
such “gap” by the title insurer at the Closing and the Title Company shall
immediately proceed to record the Special Warranty Deed and thereafter issue
its
owner’s policy of title insurance to the Purchaser. Seller shall
furnish such Title Company with appropriate Affidavits and other documents
of
Seller as it may reasonably require to insure the “gap”.
9. Risk
of Loss, Condemnation, and Casualty.
(a) All
risk of condemnation and the risk of loss, damage, or destruction of the
Property, by fire or otherwise, prior to the Closing shall be on
Seller.
(b) If,
after the Effective Date hereof and prior to the Closing all or a part of the
Property is subjected to a bona fide threat of condemnation by a body having
the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or all or a part of the Property is damaged or destroyed
by
any cause, Seller shall immediately notify Purchaser in writing and Purchaser
may give written notice to Seller electing to cancel this Agreement prior to
the
Closing hereunder, in which event both parties shall be relieved and released
of
and from any further liability hereunder, the Deposit and interest shall
forthwith be returned to Purchaser by the Escrow Agent, and thereupon this
Agreement shall become null and void and be considered cancelled. If
no such election is made, this Agreement shall remain in full force and effect
and the sale and purchase contemplated herein, less any interest taken by
eminent domain or condemnation, shall be effected with no further adjustment,
and upon the Closing Seller shall assign, transfer, and set over to Purchaser
all of the right, title and interest of Seller in and to any awards that have
been or that may thereafter be made for such taking; and Seller shall assign,
transfer and set over to Purchaser any sums of insurance money paid for any
damages or destruction.
10. Default.
(a) Seller's
Default. In the event that Seller should fail to consummate the
transaction contemplated herein for any reason except Purchaser's material
default or the failure of Purchaser to satisfy any of the material conditions
to
Seller's obligations set forth herein, Purchaser may, at its option, either
terminate this Agreement and receive a full and immediate refund of the Deposit
held by Seller or enforce specific performance of this Agreement thereby, in
both cases, waiving the right to damages.
(b) Purchaser's
Default. In the event Purchaser should fail to consummate the
transaction contemplated herein for any reason except material default by
Seller, the Seller shall retain the First Deposit, such sum being agreed upon
as
liquidated damages for the failure of Purchaser to perform the duties,
liabilities, and obligations imposed upon it by the terms and provisions of
this
Agreement and because of the difficulty, inconvenience and uncertainty
of
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ascertaining
actual damages. The maximum liability that the Purchaser has with
respect to a default by Purchaser hereunder is loss of the First Deposit and
no
other damages, right, or remedies shall in any case be collectible, and Seller
agrees to accept and take the First Deposit as its total damages in relief
hereunder in such event. In such event, Seller shall return to
Purchaser the Second Deposit and Third Deposit to extent previously paid by
Purchaser to Seller. No delay or omission in the exercise of any
right or remedy accruing to Seller upon any breach by Purchaser under this
Agreement shall impair such right or remedy or be construed as a waiver of
any
such breach theretofore or thereafter occurring. The waiver by Seller
of any condition or the breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of any other condition or of any
subsequent breach of the same or any other term, covenant or condition herein
contained.
11. Escrow
Agent.
The
Escrow Agent under this Agreement shall be Xxxxxx & Xxxx LLP, 0000 Xxxxx Xx
Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000.
The
execution of this Agreement by the
Escrow Agent is solely for purposes of evidencing the acknowledgment by said
Escrow Agent of the receipt by it of the Closing Documents specified in
Paragraph 4 hereinabove. In the event of any dispute regarding any
action taken, or proposed to be taken, by the Escrow Agent with respect to
the
Closing Documents, (collectively, the “Escrow”) held by the Escrow Agent
pursuant to this Agreement, the Escrow Agent, in its sole discretion,
may:
(a) Refuse
to comply with any demands on it and continue to hold the Escrow until it
receives either (i) written notice signed by Purchaser and Seller and the other
person, if any, directing the Escrow, or (ii) an order of Court, having final
jurisdiction thereover, directing the delivery of the Escrow;
(b) On
notice to Seller and Purchaser, take such affirmative action as it may deem
appropriate to determine its duties as Escrow Agent including, but not limited
to, the delivery of the Escrow to a court of competent jurisdiction and the
commencement of an action for interpleader;
(c) If
Purchaser or Seller shall have commenced litigation with respect to the Escrow,
deliver the Escrow to the Clerk of the Court in which said litigation is
pending.
Upon
delivery of the Escrow under the provision of (a), (b) or (c) above, the Escrow
Agent shall have no further obligation with respect to the Escrow.
Both
Purchaser, Seller and Escrow Agent acknowledge that the Escrow Agent is acting
hereunder as a depository of the Closing Documents only to the parties, and
Purchaser and Seller, jointly and severally, do hereby agree to indemnify and
hold harmless the Escrow Agent of and from any and all liabilities, costs,
expenses and claims, of any nature whatsoever, by reason of or arising out
of
any act as Escrow Agent hereunder, except in the case of Escrow Agent's gross
negligence or willful misconduct.
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All
parties agree that the Escrow Agent shall not be liable to any party or person
whomsoever for (i) the sufficiency, correctness, genuineness or validity of
any
instrument deposited with it or any notice or demand given to it or for the
form
of execution of such instrument, notice or demand, or for the identification,
authority or rights of any person executing, depositing or giving the same
or
for the terms and conditions of any instrument, pursuant to which the parties
may act; (ii) acting upon any signature, notice, demand, request, waiver,
consent, receipt or other paper or document believed by Escrow Agent to be
genuine and Escrow Agent may assume that any person purporting to give it any
notice on behalf of any party in accordance with the provisions hereof has
been
duly authorized to do so, or (iii) otherwise acting or failing to act under
this
Paragraph 11 except in the case of Escrow Agent's gross negligence or willful
misconduct. Purchaser acknowledges that Escrow Agent is
counsel to Seller and Purchaser agrees to such representation and waives any
conflict that may arise as a consequence of Xxxxxx & Xxxx LLP
acting in such dual capacities. Xxxxxx & Xxxx LLP does not
represent Purchaser in any capacity whatsoever.
12. Notices.
Any
notice or communication required or permitted to be given or served upon any
party hereto in connection with this Agreement must be in writing, and shall
be
deemed given when personally delivered or 72 hours after being deposited in
the
United States Mail, certified, return receipt requested, with postage prepaid,
or 24 hours after being given to an overnight courier for delivery, or when
transmitted by facsimile with a receipt for transmission addressed as
follows:
If
to
Purchaser:
Superfun
X.X.
Xxxxxxxxxxxxxx
00
0000
XX
Badhoevedorp
The
Netherlands
If
to
Seller:
Imaging
Diagnostic Systems, Inc.
0000
XX
00xx
Xxxxx
Xxxxxxxxxx,
XX 00000
With
copy
to:
Xxxxxx
Xxxxxxxx, Esquire
Xxxxxx
& Xxxx LLP
0000
Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxx
000
Xxxxx,
XX
00000
8
Any
party
hereto may, by giving five (5) days written notice to the other party hereto,
designate any other address in substitution of the foregoing address to which
notice shall be given. Notices to or from legal counsel for the
parties with copies to the intended party shall constitute appropriate and
valid
notice hereunder.
13. Governmental
Authorities.
As
used
herein, the term “Governmental Authority(ies)” includes the City of Plantation,
Florida, Broward County, the Government of the United States of America, the
State of Florida, and each and every agency, division, commission, subdivision,
and instrumentality of the foregoing, any or all of which have jurisdiction
over
the Property or any part thereof.
14. Compliance
with Code.
In
order
to comply with the provisions of Section 1445 of the Internal Revenue Code
of
1986 (the “Code”), as amended, Seller shall deliver to Purchaser at Closing, an
affidavit in which Seller, under penalty of perjury, affirms that Seller is
not
a “foreign person” as defined in the Code, states the United States taxpayer
identification number of Seller, affirms that Seller intends to timely file
a
United States income return with respect to the transfer of the Property and
which otherwise conforms to the requirements of Section 445 of the code and
the
Regulations promulgated thereunder. If Seller fails to furnish an
affidavit as required, Purchaser shall withhold ten (10%) percent of the gross
sales price of the Property, in lieu of payment thereof to Seller, and, instead,
pay such amount to the Internal Revenue Service in such form and manner as
may
be required by law.
15. Compliance
with OFAC. Purchaser and Seller hereby
covenant, represent and warrants to each other as of the Effective Date and
as
of the Closing Date as follows:
(a) Purchaser
and Seller and each of their Affiliates are “U.S. Persons” as defined in the
regulations administered by United States Treasury Department's Office of
Foreign Assets Control (“OFAC”), and are subject to those regulations and to
Executive Order 13224 effective on September 24, 2001 (“EO 13224”) (the OFAC
regulations and EO 13224 together “Blocking Regulations”) and are in full
compliance with the requirements of all Blocking
Regulations. “Affiliates” in this Paragraph 16 means with respect to
any Person, any other Person directly or indirectly controlling or controlled
by
or under direct or indirect common control with such Person. For
purposes of this definition, “control”, when used with respect to any Person,
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing. “Person” or “person” in this Paragraph
16 means any individual, corporation, partnership, joint venture, association,
joint stock company, trust, trustee(s) of a trust, unincorporated organization,
or government or governmental authority, agency or political subdivision
thereof, and shall include such Person’s successors and assigns.
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(b) None
of (i) Seller, Purchaser, or any of their Affiliates, (ii) any Person that
owns
voting shares of Purchaser, Seller, or any of their Affiliates, or any director
of such Person, (iii) any director of Purchaser, Seller, or any of their
Affiliates, nor (iv) any Person who owns or controls (as determined by OFAC)
any
of the Persons specified in clauses (i) through (iii) of this subsection, is
a
Person (A) that is subject to the prohibitions contained in EO 13224 or any
other Blocking Regulations or (B) whose name appears on OFAC's most current
list
of “Specially Designated Nationals and Blocked Persons.”
(c) Purchaser
shall deliver to Seller any and all information reasonably requested by Seller
to enable Seller to ensure Purchaser’s compliance with this Paragraph
16. The provisions of this Paragraph 16 shall also apply to any
assignee of Purchaser. Seller shall not be obligated to consummate
the transaction contemplated by this Agreement if Purchaser fails to comply
with
the provisions of this Paragraph 16 or if the representations by Purchaser
in
this Paragraph 16 are false.
(d) Seller
shall deliver to Purchaser any and all information reasonably requested by
Purchaser to enable Purchaser to ensure Seller’s compliance with the terms of
this Paragraph 16. The provisions of this Paragraph 16 shall also
apply to any assignee of Seller. Purchaser shall not be obligated to
consummate the transaction contemplated by this Agreement if Seller fails to
comply with the provisions of this Paragraph 16 or if the representations by
Seller in this Paragraph 16 are false.
16. Confidentiality.
The
Purchaser and Seller hereby agree that the existence and contents of this
Agreement, the records, and all third-party reports are confidential and shall
not be disclosed to third parties (except for brokers, attorneys, the Title
Company, accountants or other consultants who are necessary for the consummation
of this transaction) without the consent of the Purchaser and Seller. The
Purchaser and Seller further agree that all discussions between the Purchaser
and Seller concerning this transaction will be held in confidence except as
stated hereinabove
17. General
Provisions.
(a) Governing
Law. This Agreement and all questions of interpretation,
construction and enforcement hereof, and all controversies arising hereunder,
shall be governed by the applicable statutory and common law of the State of
Florida.
(b) Severability. In
the event any term or provision of this Agreement shall be held illegal,
unenforceable or inoperative as a matter of law, the remaining terms and
provisions of this Agreement shall not be affected thereby, but each such term
and provision shall be valid and shall remain in full force and
effect.
(c) Binding
Effect, Entire Agreement, Modification. This Agreement shall be
binding upon, and shall inure to the benefit of, the successors and assigns
of
the parties hereto. This Agreement embodies the entire contract
between the parties hereto with respect to the Property and supersedes any
and
all prior agreements and understandings, written or oral, formal
10
or
informal. No modifications or amendments to this Agreement, of any
kind whatsoever, shall be made or claimed by Seller or Purchaser, and no notices
of any extension, change, modification or amendment made or claimed by Seller
or
Purchaser (except with respect to permitted unilateral waivers of conditions
precedent by Purchaser) shall have any force or effect whatsoever unless the
same shall be endorsed in writing and fully signed by Seller and
Purchaser.
(d) Further
Assurances. In addition to the foregoing, the parties hereto, at
the time and from time to time at or after Closing, upon request of Purchaser
or
of Seller, as the case may be, agree to do, execute, acknowledge and deliver
all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances, as may be reasonably required for: (i) the better
assigning, transferring, granting, conveying assuring and confirming unto the
Purchaser all of Seller's right, title and interest in and to the Property
being
conveyed hereunder; and (ii) the more effective consummation of the other
transactions referred to in this Agreement.
(e) Captions. Captions
and Article headings contained in this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement nor the intent of any provision hereof.
(f) Litigation. In
the event of any litigation between the parties to this Agreement relating
to or
arising out of this Agreement, the prevailing party shall be entitled to an
award of reasonable attorneys' fees and costs, including such fees and costs
at
trial and on appeal.
(g) Assignment. This
Agreement is not assignable by Purchaser except to a corporation which is wholly
owned by the Purchaser (“Assignee”).
(h) Remedies. Unless
otherwise specified, no remedy conferred upon either party in this Agreement
is
intended to be exclusive of any other remedy herein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity by
statute. Every power or remedy given by this Agreement to the
Purchaser or to which the Purchaser may otherwise be entitled may be exercised
concurrently or independently, from time to time, and as often as may be deemed
expedient by the Purchaser and the Purchaser may pursue inconsistent
remedies.
(i) Waiver. No
waiver of any provision of this Agreement shall be effective unless it is in
writing, signed by the party against whom it is asserted and any such written
waiver shall only be applicable to the specific instance to which it relates
and
shall not be deemed to be a continuing or future waiver.
(j) Survival. The
Disclaimer of Representations or Warranties by Seller in Paragraph 5, and
Paragraph 17(r) shall survive the Closing, termination or voidability of this
Agreement and shall continue to be binding on Seller and Purchaser, as
applicable.
(k) Facsimile
and Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same Agreement. A facsimile signature of
any party to this Agreement shall be fully binding on such party.
11
(l) Recordation
of Agreement. Neither this Agreement nor any memorandum thereof
or reference thereto may be recorded in any Public Records in the State of
Florida.
(m) Interpretation. All
terms and words used in this Agreement, regardless of the number and gender
in
which used, shall be deemed to include any other gender or number as the context
or the use thereof may require. This Agreement shall be interpreted
without regard to any presumption or other rule requiring interpretation against
the party causing this Agreement or any part thereof to be
drafted. Any period measured in “days” shall mean consecutive
calendar days, except that the expiration of any time period measured in days
that expires on a Saturday, Sunday or legal holiday automatically will be
extended to the next day that is not a Saturday, Sunday or legal
holiday.
(n) Exhibits. Exhibits
“A”, “B”, “C” and “D” attached hereto are an integral part of this
Agreement.
(o) Time
for Acceptance. This Agreement, when duly executed by all of the
parties hereto, shall be binding upon the parties hereto, their heirs,
representatives, successors and assigns. The Purchaser must execute
this Agreement and no later than 2:00 PM Eastern Daylight Saving Time on day
of
September 13, 2007. In the event this Agreement has not been duly
executed by the Seller and two (2) duly executed counterparts (or facsimile
copy) delivered to the Purchaser by day of September 13, 2007, at 5:00 o'clock,
PM, then the offer herein and herewith made by the Purchaser shall terminate
and
this Agreement shall be null and void and the Seller shall return to the
Purchaser the First Deposit made hereunder.
(p) Radon
Gas. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health
risks
to persons who were exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may
be obtained from your county public health unit.
(q) Time
of Essence/Extensions. Time shall be of the essence in regard to
the performance by the Purchaser and Seller of all of their respective
obligations under the terms and conditions of this Agreement. Seller
will not grant any extensions of periods of time within which Purchaser must
perform hereunder.
(r) Brokerage
Fees. Seller and Purchaser mutually represent to each other that
no real estate broker or agent has been engaged by or is involved with either
Seller or Purchaser in connection with this transaction. Seller and
Purchaser agree to indemnify and hold each other harmless from any and all
claims or demands by any real estate broker or agent, claiming by, through
or
under Seller or Buyer, respectively. This indemnification shall also
include payment of costs and reasonable attorney’s fees incurred in this regard,
including those costs and reasonable attorney’s fees that may be incurred in any
appellate, bankruptcy or post-judgment proceedings.
[Signature
page follows]
12
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
|
WITNESSES:
/s/
X. X. Xx
NAME:
X. X. Xx
|
PURCHASER:
SUPERFUN
B.V., a corporation formed under the laws of The Netherlands
By:
/s/ X. Xxxx
X.
Xxxx
|
|
WITNESSES:
/s/
Xxxxx Xxxxx
NAME:
Xxxxx Xxxxx
|
SELLER:
IMAGING
DIAGNOSTIC SYSTEMS, INC., a Florida corporation
Per:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
|
13
EXHIBIT
“A”
DESCRIPTION
OF LAND
Lots
4 and 5, of Landmark Industrial
Park, according to the plat thereof, as recorded in plat book 96, page 40,
public records of Broward County, Florida
14
EXHIBIT
“B”
SELLER’S
POLICY OF TITLE INSURANCE
15
EXHIBIT
“C”
CLOSING
DOCUMENTS
a) Special
Warranty Deed
b) Seller’s
No Lien, Gap and FIRPTA Affidavit
c) Closing
Statement
16
EXHIBIT
“D”
THIS
LEASE AGREEMENT (this “Lease”) is
made as of this ____ day of _____________, 2007, by and
between__________________, a
___________________ formed under the laws of ________ (hereinafter called
“Landlord”), and IMAGING DIAGNOSTIC SYSTEMS, INC., a Florida corporation
(hereinafter called “Tenant”).
W
I T N E S S E T H :
Section
1. Premises: The Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord, subject to the terms and conditions in
this
Lease and subject to all zoning ordinances and restrictions and reservations
of
record, the following described property (“Premises”):
24,549
square feet, more or less, located at 0000 Xxxxxxxxx 00xx Xxxxx,
Xxxxxxxxxx,
Xxxxxxx 00000, as described in greater detail on Exhibit A, of which
the parties agree that the rentable square footage shall be deemed to be
24,000.
The
Premises is being leased in “AS IS”
condition except as otherwise specifically provided herein. Landlord
has made no representations to Tenant regarding the condition of the Premises,
and Tenant hereby acknowledges that Tenant has, prior to the date hereof,
undertaken all inquiry, which Tenant deems appropriate under the circumstances
to determine the actual condition of the Premises.
Section
2. Term: Tenant shall have and hold the Premises for a
term beginning on the Commencement Date (as hereinafter defined) and terminating
on the Expiration Date (as hereinafter defined) unless extended in accordance
with this Lease or sooner terminated pursuant to the terms hereof (the
“Term”). Notwithstanding the foregoing, either party may cancel this
Lease without penalty or fault upon 180 days prior written notice given to
the
other party, to be effective on the first day of the month following the
expiration of said 180 day period.
Section
3. Commencement
and Expiration Dates: The date of commencement of the Term of
this Lease (the “Commencement Date”) shall be the date first written
above. The date of the expiration of the Term of this Lease shall be
that date which completes five (5) years from the Commencement Date except
that
in the event that the Commencement Date is a date other than the first day
of a
calendar month, said term shall be extended for the number of days equal to
the
remainder of the calendar month following the Commencement Date (the “Expiration
Date”). For purposes of this Agreement, a “Lease Year” shall
mean: for the first year, the period beginning on the Commencement
Date and ending on the first annual anniversary of the last day of the month
in
which the Commencement Date falls (unless the Commencement Date falls on the
first day of a month, in which case the first Lease Year shall end on the first
annual anniversary of the month-end preceding the Commencement Date); and for
subsequent years, the twelve month period ending on each annual anniversary
within the lease term of the final day of the first Lease
Year. Landlord and Tenant acknowledge that certain obligations under
various articles of this lease may commence prior to the Commencement Date
of
the lease term and agree that this is a binding and enforceable agreement as
of
the date Landlord and Tenant execute this Lease.
Section
4. Rental: Commencing on the first day of the seventh
month of the first Lease Year, Tenant shall pay to Landlord as Minimum Annual
Rent (the “Minimum Annual Rent”) for the balance of
17
the
first
Lease Year the sum of $12.00 per square foot, payable in monthly installments
of
$24,000, plus applicable sales tax. Thereafter, rental shall be due
on the first day of each calendar month. No Minimum Annual Rent shall
be due for the first six months of the Term. All rent shall be due in
advance and without demand, deduction or setoff. All rent shall be
paid at the Landlord’s address listed below, or to such other address or place
designated by Landlord by written notice to Tenant.
Section
5. Annual Rent
Escalations: During the term and any renewal term of this Lease,
the Minimum Annual Rent shall be increased every year. Commencing
with the first day of the second Lease Year and on each Lease Year anniversary
thereafter, the Minimum Annual Rent shall be cumulatively increased by $24,000
per each Lease Year ($1.00 per rentable square foot), plus applicable sales
tax.
Section
6. Sales
Tax: Together with each monthly payment of Minimum Annual Rent,
Tenant shall pay Landlord any and all applicable sales and/or excise taxes
due
thereon.
Section
7. Partial Months’
Rental: If the Commencement Date occurs on a day other than the
first day of the month, then the monthly installment of Minimum Annual Rent
shall be prorated for such partial month(s) on a per diem basis. Together with
each partial months’ rental, Tenant shall pay Landlord any and all applicable
sales and/or excise taxes due thereon.
Section
8. Type of
Lease: Except as otherwise provided in this Lease, the Minimum
Annual Rental is to be paid to Landlord net of taxes, insurance and
maintenance. This is a “triple net lease” in that Tenant shall be
responsible for the cost of taxes, insurance, maintenance, utilities and all
other charges, except for those items of maintenance which are specifically
made
the responsibility of the Landlord in this Lease.
Section
9. Taxes: Tenant agrees to pay when due, Tenant’s full
proportionate share as determined pursuant to this Section of all ad valorem
and
non-ad valorem taxes and assessments, special or otherwise, which may be levied
or assessed by any lawful authority against the Premises (“Taxes”) plus all
applicable sales and excise taxes due thereon. For the calendar years
in which the Commencement and Expiration Dates occur, the taxes and assessments
for such calendar year shall be prorated between Landlord and Tenant based
upon
the number of days of the lease term during said calendar year and
regardless of the due date of the tax or assessment, such tax or assessment
shall be deemed to have been assessed prorata throughout the Lease
Year. Tenant shall be responsible for any other taxes, including
tangible personal property taxes, in keeping with the character of this Lease
as
a triple net lease. Tenant shall pay all Taxes directly to the
governmental authority on or before the due date and Tenant shall provide
Landlord with proof of payment of such Taxes.
Section
10. Roof
Repairs: The parties acknowledge that certain roof repairs are
required on the Premises. Within a reasonable time after the
Commencement Date, Tenant shall make such repairs at Tenant’s sole cost in the
approximate amount of $25,000
Section
11. Landlord's
Insurance and Tenant's Reimbursement: Tenant will pay for
Landlord’s insurance of the following character:
(a) Hazard
insurance on the building (but not on Tenant’s property) in the amount of
$__________ insuring against loss or damage by fire, lightning, windstorms,
hail, explosion, aircraft, smoke damage, vehicle damage and other risks from
time to time included under “extended coverage” policies and such other risks as
are or shall customarily be insured against.
18
(b) Liability
insurance in the amount of $1,000,000 each occurrence.
Tenant
agrees to pay the premiums for the foregoing insurance directly to the insurer
when due. Landlord shall be the named insured and shall own the
policy. Policy periods, which differ from the Term, shall be prorated
to the Term of this Lease. The monthly rental payment shall be
subject to change based upon changes in the premiums. Notwithstanding
the foregoing, attached hereto as Exhibit B is copy of the declaration of
insurance which the parties agree satisfies the limits set forth in this
Section.
Section
12. Utilities and
Dues: Tenant shall pay all water, trash disposal, gas,
electricity, fuel, light, heat, power and all other utility bills for the
Premises, for all other services and materials used by Tenant in connection
therewith, and for all association dues and similar charges, when
due. If Tenant does not pay the same when due, Landlord may pay the
same on Tenant's account and Tenant hereby agrees to reimburse Landlord for
any
sums so expended by Landlord with the next monthly installment of Minimum Annual
Rent due thereafter. Tenant hereby acknowledges and agrees that
Landlord shall not be obligated to supply or obtain, nor shall Landlord be
liable for, nor shall Rent xxxxx by reason of, any failure to furnish, or
suspension or delays in furnishing, any utility service to the
Premises.
Section
13. Late
Charges: Any installment of Minimum Annual Rent or other amount
payable pursuant to this Lease which is not paid when due shall thereafter
bear
interest at the rate of twelve-percent (12%) per annum until paid. In
addition, for each installment of Minimum Annual Rent or other amount payable
pursuant to this Lease which is not paid by the fifth (5th) day after it becomes
due, Tenant shall be obligated to pay to Landlord an administrative fee equal
to
five percent (5%) of such amounts to cover the cost of handling and processing
such late payments. In the event that any such interest or late
charge is deemed to exceed the maximum legally allowable charge under applicable
state law, such charge shall be reduced to the maximum legally allowable
charge. Collection of late charges shall not constitute a waiver of
any other right or remedy available to Landlord for non-payment or late
payment.
Section
14. Quiet
Possession: Landlord is the sole owner of the Premises and has
the full right and authority to enter into this lease without the consent of
any
other person. Upon payment by Tenant of the rents herein provided,
and upon the observance and performance of all terms, provisions, covenants
and
conditions on Tenant's part to be observed and performed, Tenant shall, subject
to all of the terms, provisions, covenants and conditions of this Lease
Agreement, peaceably and quietly hold and enjoy the Premises for the Term hereby
demised. Landlord is not aware of any condemnation proceedings,
foreclosure proceedings or any other pending or threatened suit, which involves
the Premises, or any environmental matter. Landlord is not aware of
any existing environmental problem regarding the Premises but discloses that
the
property was used previously in operation of a printing business.
Section
15. Use of
Premises: The Premises for the entire Term shall be used solely
for a light manufacturing and assemble and related office use, and no other
use
shall be made thereof without the prior written consent of the
Landlord.
Section
16. Return of
Premises: Upon the expiration or sooner termination of the Term
of this Lease, Tenant shall quit and surrender to Landlord the Premises,
broom-clean, in good order and condition, ordinary wear and tear excepted,
and
shall surrender to Landlord all keys to or for the Premises and inform Landlord
of all combinations of locks, safes and vaults, if any, in the
Premises. Prior to the expiration or termination of this Lease,
Tenant, at its expense, shall promptly remove from the Premises all personal
property of Tenant, repair all damage to the Premises caused by such removal
and
restore the Premises to the condition which existed prior to the installation
of
the property so removed. Any personal property of Tenant not removed
within ten (10) days following the expiration or earlier termination of the
Lease shall be deemed to have been abandoned by Tenant and may, in accordance
with applicable state and local law, be
19
retained
or disposed of by Landlord, as Landlord shall desire. Tenant's
obligation to observe or perform the covenants set forth in this Section shall
survive the expiration or sooner termination of this Lease.
Section
17. Alterations
and Tenant's Work: Tenant shall have no right to make any
structural alterations or modifications to the Premises or to make any roof
penetrations without the prior written approval of Landlord which written
consent may not be unreasonably withheld. All improvements must be
made in accordance with all applicable federal, state, and local laws,
regulations, ordinances, and other restrictions and in good and workmanlike
manner. Tenant shall be responsible for obtaining all required
permits and approvals, from city, county, state, or other governing bodies
having jurisdiction over the Premises. Prior to commencing any work,
Tenant shall provide Landlord with complete plans and specifications for the
proposed work in form sufficient for obtaining a building
permit. Except as expressly provided otherwise in this Lease,
Landlord shall have a period of twenty (20) days from receipt of the plans
and
specifications in which to approve or reject the submittals. No
approval by Landlord shall be deemed a warranty as to the fitness of the plans
or specifications or the work to be performed thereunder. Tenant is
encouraged to discuss proposed improvements with Landlord prior to making formal
submittals in order to save time and reduce comments.
Section
18. Ownership of
Improvements: All installations, alterations, additions and
improvements upon the Premises made by or on account of Tenant hereto shall
become the property of Landlord when installed and shall remain upon and be
surrendered with the Premises upon expiration of the Lease or sooner termination
of the Term.
Section
19. Removal of
Trade Fixtures: Tenant may (if not in default hereunder), upon
the expiration of this Lease or any extension thereof, remove all trade fixtures
which it has placed in Premises, provided Tenant repairs all damage to Premises
caused by such removal.
Section
20. Repairs by
Tenant/Landlord: Except as otherwise provided in this Lease,
Tenant shall, at Tenant's sole expense, keep and maintain the entire Premises
in
good order and repair whether such parts of the Premises were installed by
Landlord or Tenant. Tenant shall be responsible for all maintenance,
repairs and replacements of the Premises or any portion thereof; provided that
Landlord agrees to keep all fixtures pertaining to heating, air-conditioning,
water, sewer and electrical system in good order and repair and agrees also
that
Landlord shall be liable for any damage to such heating, air-conditioning,
water, sewer, and electrical systems except to the extent such damage is
incurred by Tenant’s negligence, in which case Tenant shall repair and be liable
for the damage. Tenant agrees to return said Premises to Landlord at
the expiration of this Lease in as good condition and repair as when first
received. Tenant shall not be responsible for the repair of the
foundation, exterior, load bearing walls and trusses except: (i)
where such repair relates to any intentional or negligent act or omission of
Tenant, Tenant’s agents, concessionaires, contractors, employees, invitees,
licensees or trespassers; or (ii) as expressly provided otherwise in this
Lease. In addition to other remedies available to Landlord, if Tenant
fails to perform any repairs required of Tenant hereunder within thirty (30)
days of notice by Landlord, Landlord may cause such repairs to be performed
and
Tenant shall reimburse Landlord for any sums so expended with the next monthly
installment of Minimum Annual Rent due hereunder.
Section
21. Signs: Landlord hereby approves all Tenant’s
signage that may exist on the Commencement Date and any change in signage
requires the prior written consent of Landlord. Tenant shall, at
Tenant's sole expense, maintain any permitted signage, decorations, lettering
and advertising matter in good condition and repair and in full compliance
with
all applicable laws, ordinances, regulations and other governmental
restrictions. Upon the expiration of the Term, Tenant shall remove
its name from any signage and repair any damage caused by such
removal.
20
Section
22. Maintenance
of Premises: Except as otherwise provided in this Lease, Tenant
shall be responsible for and shall maintain the Premises in a clean and
well-kept condition at all times, at Tenant's sole cost and
expense. Without limiting the foregoing, Tenant hereby agrees that it
(i) will keep the exterior of the Premises in a clean, attractive and well
painted condition and free from mildew; (ii) will replace promptly with glass
of
like kind and quality, any plate glass or window glass of the Premises which
may
become cracked or broken; (iii) will maintain the Premises at its own expense
in
a clean, orderly and sanitary condition and free of insects, rodents, vermin
and
other pests; (iv) will not permit undue accumulations of garbage, trash, rubbish
and other refuse, and will keep such refuse in proper containers on the
Premises; (v) will maintain the lawn and landscaping; and (vi) will comply
with
all laws and ordinances and all valid rules and regulations of the government
of
the United States or any state, county or city in which the Premises are located
and any other applicable unit of government, or any agency thereof, and all
requirements of any public or private agency having authority over insurance
rates with respect to the use or occupancy of the Premises by
Tenant. In addition to other remedies available to Landlord, if
Tenant fails to perform any maintenance required of Tenant hereunder within
thirty (30) days of notice by Landlord, Landlord may cause such maintenance
to
be performed and Tenant shall reimburse Landlord for any sums so expended with
the next monthly installment of Minimum Annual Rent due
hereunder. Landlord will be responsible for such repairs to the roof
as may be deemed necessary.
Section
23. Construction
Liens: Landlord's interest in the Premises shall not be subject
to liens for improvements made by Tenant. Tenant shall not permit any
construction or other similar lien to be filed and stand against the Tenant's
leasehold interest or the fee estate, reversion or other estate of Landlord
in
the Premises by reason of any work, labor, service or materials performed for
or
furnished to Tenant or anyone occupying Premises (or any part thereof) through
or under Tenant. If any such lien shall be filed in contravention of
the foregoing, Tenant shall, without cost or expense to Landlord and within
ten
(10) days after receiving notice of such lien, either cause the same to be
discharged of record by payment, bonding, court order or otherwise as provided
by law. All materialmen, contractors and other persons contracting
with Tenant with respect to the Premises or any part thereof, or any of their
subcontractors, laborers or suppliers, or any such party who may avail himself
of any lien against the Premises are hereby charged with notice that they shall
look solely to Tenant to secure payment of any amounts due for work done or
material furnished to Tenant or the Premises. Tenant shall advise all
persons furnishing labor, materials or services to the Premises in connection
with Tenant's improvements thereof of the provisions of this
Section. Tenant shall promptly inform Landlord upon receipt, by
Tenant, of any notice of the filing of such construction liens. In
the event Tenant shall fail to discharge said construction lien as aforesaid,
Landlord, at its option, in addition to all other rights or remedies herein
provided, may bond or pay said lien or claim without inquiring into the validity
thereof for the account of Tenant, and all sums so advanced by Landlord shall
be
paid by Tenant as rent as and when Tenant is billed
therefor. Landlord may record a memorandum of this Lease in order to
advise others of the above provisions.
Section
24. Tenant's
Insurance:
(a) Tenant
shall, at Tenant's sole cost and expense for the mutual benefit of Landlord
and
Tenant, maintain throughout the Term of this Lease, personal and bodily injury
and property damage liability insurance against claims for bodily injury, death
or property damage occurring on, in or about the Premises of not less than
One
Million Dollars ($1,000,000) in respect of personal injury or death to any
one
person and of not less than One Million Dollars ($1,000,000) in respect of
any
one accident and of not less then One Million Dollars ($1,000,000) property
damage aggregate coverage. During the period of any construction,
Tenant shall also cause its Contractors to also maintain such
coverage. Each such insurance policy shall be written as primary
coverage and not contributing with or in excess of any coverage which Landlord
may carry.
21
(b) Tenant
shall, at Tenant's sole cost and expense, obtain and maintain in effect
throughout the Term insurance policies providing for the following
coverage: all risk and property insurance against fire, theft,
vandalism, malicious mischief, sprinkler leakage and such additional perils
as
now are or hereafter may be included in a standard extended coverage endorsement
insuring Tenant's trade fixtures, furnishings, equipment and all items of
personal property of Tenant located on or in the Premises for the full
replacement value thereof. All proceeds of such insurance, so long as
the Lease shall remain in effect, shall be used only to repair or replace the
items so insured.
(c) Tenant
shall, at Tenant's sole cost and expense, obtain and maintain in effect
throughout the Term insurance policies providing for the following
coverage: all risk and property insurance against wind, hail, water,
fire, theft, vandalism, malicious mischief, sprinkler leakage and such
additional perils as now are or hereafter may be included in a standard extended
coverage endorsement insuring the Premises in an amount not less than
$2,100,000, adjusted for increases in the value of the Premises, from time
to
time. Landlord shall be the named insured under such policies and all
proceeds of such insurance shall be payable solely to
Landlord. Deductibles under the insurance in this sub-Paragraph (c)
shall be as are commercially available at the time of issuance and Landlord
acknowledges and agrees that the deductibles presently available for wind/hail
insurance is 10%.
(d) All
insurance provided in this paragraph shall be effected under valid and
enforceable policies issued by insurers of recognized responsibility which
are
licensed to do business in the state in which the Premises are located, are
rated A+ or better by A.M. Best and have been approved in writing by Landlord,
such approval not to be unreasonably withheld. Prior to the earlier
of the Commencement Date or Commencement of Tenant's Work, and thereafter not
less than thirty (30) days prior to the expiration dates of each policy
furnished pursuant to this paragraph, Tenant shall deliver to Landlord or
Landlord's mortgagee, as directed by Landlord, the original or certified copy
of
the policy or policies, and/or renewals thereof, evidencing Tenant's continued
insurance coverage as required hereunder and evidencing the payment of premiums
necessary to maintain such insurance coverages.
(e) All
policies of insurance provided in this paragraph shall name Landlord and, at
Landlord's request Landlord's mortgagee and/or any management agent as
additional-named insureds, unless indicated otherwise. Each policy of
insurance shall provide that such insurance policy shall not be cancelled unless
Landlord shall have received twenty (20) days prior written notice of
cancellation. Tenant shall require its insurer(s) to include in all
of Tenant's insurance policies which could give rise to a right of subrogation
against Landlord a clause or endorsement whereby the insurer(s) shall waive
any
rights of subrogation against Landlord. Tenant hereby releases
Landlord and its partners, officers, directors, agents and employees from any
and all liability or responsibility to Tenant or any person claiming by, through
or under Tenant, by way of subrogation or otherwise, for any injury, loss or
damage to Tenant's property covered by a valid and collectible fire insurance
policy with extended coverage endorsement.
(f) Notwithstanding
the foregoing, attached hereto as Exhibit C is copy of the declaration of
insurance which the parties agree satisfies all the requirements and limits
set
forth in this Section.
Section
25. Total or
Partial Destruction: In the case of damage to or destruction of
the Premises by hurricane, fire, wind or other casualty, Tenant shall restore,
repair, replace or rebuild the Premises as nearly as possible to the condition
the Premises was in prior to such damage or destruction to the extent that
Landlord makes the insurance proceeds available for the same (the
“Repairs”). Landlord shall make available to Tenant any insurance
proceeds which Landlord may receive as a result of such damage or destruction
subject to such controls over disbursement as Landlord or its mortgagee may
deem
necessary to insure (i) that the Repairs will be made properly; (ii) that
adequate funds have been escrowed by Tenant to
22
pay
for
any costs, expenses and repairs not covered by the insurance proceeds; (iii)
that all contractors, subcontractors and suppliers will be paid in full; and
(iv) that the Repairs will be made in conformity with plans and specifications
approved by Landlord and in accordance with all applicable building codes,
zoning ordinances and governmental laws and
regulations. Notwithstanding the above, if the damage or destruction
shall occur within the six (6) months of the end of the Term and if the cost
of
the Repairs as estimated by Landlord or its architect or contractor shall exceed
the aggregate remaining amounts of Annual Minimum Rent due under this
Lease, or in the event that the damage or destruction occurs anytime
during the term of this Lease and the cost of the Repairs as estimated by
Landlord or its architect or contractor in good faith, exceeds the aggregate
remaining amounts of Annual Minimum Rent due under this Lease, then Tenant
shall
not be required to make the Repairs and either party may cancel this Lease.
However, Landlord shall be entitled to all insurance proceeds on account of
such
destruction and damage. In no event will Tenant be relieved of its
responsibility to pay rental and other sums due under this Lease because of
casualty to the Premises. Tenant agrees to protect itself from
possible casualty to the Premises and its obligation to pay rent by obtaining
adequate business interruption insurance.
Section
26. Condemnation:
(a) Eminent
Domain. If fifty percent (50%) or more of the floor area of the Premises
shall be taken or condemned by a government authority (including, for purposes
of this Article, any purchase by such government authority in lieu of a taking),
then either party may elect to terminate this Lease as of the date possession
is
required by the condemning authority by giving notice to the other party not
more than sixty (60) days after the date on which such title shall vest in
the
authority.
(b) Rent
Apportionment. In the event of any taking or condemnation of all or any part
of the Premises, if this Lease shall not have expired or been terminated Tenant
shall be entitled to a proportionate reduction in the Minimum Annual Rent paid
hereunder from and after the date possession is required by the condemning
authority, based on the proportion which the floor area taken from the Premises
bears to the entire floor area of the Premises immediately prior to such
taking.
(c) Temporary
Taking. Notwithstanding anything to the contrary in this Section, the
requisition of the Premises or any part thereof by military or other public
authority for purposes arising out of a temporary emergency or other temporary
situation or circumstances shall constitute a taking of the Premises by eminent
domain only when the use or occupancy by the requisitioning authority is
expressly provided to continue, or shall in fact have continued, for a period of
one hundred eighty (180) days or more, and if the Lease is not thereafter
terminated under the foregoing provisions of this Section, then for the duration
of any period of use and occupancy of the Premises by the requisitioning
authority, all the terms and provisions of this Lease and obligations of Tenant
hereunder shall remain in full force and effect, except that the Minimum Annual
Rent shall be reduced in the same proportion that the floor area of the Premises
so requisitioned bears to the total floor area of the Premises, and Landlord
shall be entitled to whatever compensation may be payable from the
requisitioning authority for the use and occupation of the Premises for the
period involved.
(d) Awards.
Landlord shall have the exclusive right to receive any and all awards made
for
damages to the Premises accruing by reason of a taking or by reason of anything
lawfully done in pursuance of public or other authority. Tenant hereby releases
and assigns to Landlord all of Tenant’s rights to such awards, and covenants to
deliver such further assignments and assurances thereof as Landlord may from
time to time request, Tenant hereby irrevocably designating and appointing
Landlord as its attorney-in-fact to execute and deliver in Tenant’s name and
behalf all such further assignments thereof. However, Tenant shall have the
right to make its own claim against the condemning authority for a separate
award for the value of Tenant’s trade fixtures and equipment and for such moving
and
23
relocation
expenses as may be allowed by law which do not constitute part of the
compensation for the Center and do not diminish the amount of the award to
which
Landlord would otherwise be entitled.
Section
27. Bankruptcy:
(a) Neither
Tenant’s interest in this Lease, nor any estate hereby created in Tenant nor any
interest herein or therein, shall pass to any trustee or receiver or assignee
for the benefit of creditors or otherwise by operation of law, except as may
specifically be provided pursuant to the Bankruptcy Code (11 USC §101 et.seq.),
as the same may be amended from time to time.
(b) Rights
and Obligations Under the Bankruptcy Code.
(1) Upon
the filing of a petition by or against Tenant under the Bankruptcy Code, Tenant,
as debtor and as debtor-in-possession, and any trustee who may be appointed
with
respect to the assets of or estate in bankruptcy of Tenant, agree to pay monthly
in advance on the first day of each month, as reasonable compensation for the
use and occupancy of the Premises, an amount equal to the then-applicable
monthly installments of Minimum Annual Rent and other charges otherwise due
pursuant to this Lease.
(2) Included
within and in addition to any other conditions or obligations imposed upon
Tenant or its successor in the event of the assumption and/or assignment of
this
Lease are the following: (i) the cure of any monetary defaults and reimbursement
of pecuniary loss within not more than thirty (30) days of assumption and/or
assignment; (ii) the deposit of an additional sum equal to not less than three
(3) months’ Minimum Annual Rent and other charges, which sum shall be determined
by Landlord, in its sole discretion, to be a necessary deposit to secure the
future performance under the Lease of Tenant or its assignee; (iii) the use
of
the Premises as set forth in this Lease and the quality, quantity and/or lines
of merchandise, goods or services required to be offered for sale are unchanged;
and (iv) the prior written consent of any mortgagee to which this Lease has
been
assigned as collateral security.
Section
28. Indemnity: Tenant agrees to defend, indemnify and
hold Landlord harmless from and against all actions, claims, costs, damages,
expenses, liabilities, losses and suits that (i) arise from or in connection
with Tenant's possession, use, occupancy, management, construction, repair,
maintenance or control of the Premises, or any portion thereof, or in any other
manner that relates to the business conducted by Tenant in the Premises, or
(ii)
arise from or in connection with any intentional or negligent act or omission
of
Tenant, Tenant's agents, concessionaires, contractors, employees, invitees,
licensees or trespassers, or that (iii) result from any default, breach,
violation or nonperformance of this Lease or any provision herein by Tenant,
or
that (iv) arise from injury or death to persons or damage to property sustained
in, on or about the Premises. The indemnity contained in this Section
shall survive the termination and expiration of this Lease.
Section
29. Assignment
and Subletting: Notwithstanding any references to assignees,
subtenants, concessionaires or other similar entities in this Lease, Tenant
shall not without the prior written consent of Landlord, which consent may
not
be unreasonably withheld: (i) assign or otherwise transfer, or
mortgage or otherwise encumber, this Lease or any of its rights hereunder (nor
allow any foreclosure of any permitted encumbrance or mortgage), (ii) sublet
the
Premises or any part thereof, or permit the use of the Premises or any part
thereof by any persons other than Tenant or its agents, or (iii) otherwise
permit the assignment or other transfer of this Lease or any of Tenant's rights
hereunder voluntarily or by operation of law. Any such attempted or
purported transfer, assignment, mortgaging or encumbering of this Lease or
any
of Tenant's interest hereunder and/or any attempted or purported subletting
or
grant of a right to use or occupy all or a
24
portion
of the Premises in violation of the foregoing sentence, whether voluntary or
involuntary or by operation of law or otherwise, shall be a default
hereunder.
Section
30. Entry: Landlord shall, throughout the Term, have
the right to enter the Premises at reasonable hours to exhibit the same to
prospective purchasers and/or mortgagees, to make such inspections as Landlord
deems necessary, including without limitation, the right to inspect Tenant’s
records and books to confirm Tenant’s compliance with the terms of this
Lease.
Section
31. Default: Each of the following shall be deemed to
be an Event of Default by Tenant and a breach by Tenant hereunder:
(a) the
filing by or against (i) the Tenant, (ii) any permitted assignee, sublessee,
transferee or successor, or (iii) any guarantor of this Lease, in any court,
pursuant to any statute either of the United States or of any state, of a
petition in bankruptcy or insolvency or a petition for reorganization or for
the
appointment of a receiver or trustee of all or a portion of the property of
any
of the aforesaid parties, or the making by any of the aforesaid parties of
an
assignment for the benefit of creditors, or the petitioning for or entering
into
an agreement pursuant to any statute either of the United States or of any
state
by any of the aforesaid parties, or the taking of this Lease under any writ
or
execution or attachment, or the issuance of any execution or attachment against
any of the aforesaid parties or any of their property, or the dissolution or
liquidation or the commencement of any action or proceeding for the dissolution
or liquidation of any of the aforesaid parties;
(b) the
failure to pay Minimum Annual Rent or any other monetary sum payable hereunder
within ten (10) days of the due date; or
(c) the
failure to perform any non-monetary obligation of Tenant under this Lease,
when
such failure continues for more than ten (10) days after Landlord has given
to
Tenant a notice specifying the nature of such default, provided, however, that
if Tenant commences to cure such breach within said ten (10) day period and
thereafter diligently pursues the cure of such breach (not to exceed 90 days),
then Tenant shall not be in default.
Section
32. Landlord's
Remedies Upon Default: For the occurrence of an Event of Default
by the Tenant under this Lease, the Landlord may, at his option, without notice
to Tenant and without limiting any other right or remedy in law or in
equity:
(a) treat
the Lease as terminated and resume possession of the Premises, thereafter using
the same exclusively for Landlord's own purposes, in which case Tenant shall
not
be liable for any rent accruing thereafter, however, Tenant shall remain liable
for and shall pay to Landlord rental accrued prior to Landlord resuming
possession together with any damage to the Premises or other damages and
charges, as provided in this Lease;
(b) retake
possession of the Premises for the account of the Tenant, holding the Tenant
liable for damages, including the difference between the rentals and other
charges stipulated to be paid and the net amount which Landlord recovers from
reletting the Premises in which case Landlord may accelerate and declare
immediately due and payable the balance of rent and other charges for the
remainder of the lease term or Landlord may collect such rent and other charges
as and when the same shall become due.
(c) not
retake possession of the Premises, instead holding the Tenant liable for the
balance of rent due for the remainder of the lease term together with all other
damages and charges provided for in this
25
Lease,
in
which case, Landlord may accelerate and declare immediately due and payable
all
remaining rent and other charges for the balance of the lease term.
In
the event Landlord chooses option
(b) above, Landlord may make such additions, alterations or improvements as
Landlord in its sole discretion deems reasonable and may grant concessions
and
rental incentives to new tenants as Landlord deems reasonable and may pay real
estate commissions to relet the Premises the costs of which shall be amortized
over the primary term of any new lease in order to determine the net rentals
which Landlord recovered from a reletting of the Premises.
In
the event Landlord chooses option
(c) above and Tenant does not pay all accelerated sums within ten (10) days
of
demand, the Landlord may obtain possession of and relet the Premises and apply
any rental collected to the outstanding balance or judgment without releasing
Tenant from liability therefore.
In
the event Landlord accelerates
future rental payments as provided above, the parties agree that the amount
of
monthly rental, tax and insurance payments as of the date of acceleration,
plus
any applicable sales tax, shall be multiplied by the number of months remaining
in the lease term in order to determine the accelerated amount
due. The parties agree that no reduction to present value of the
future rental income shall be made. In exchange, Landlord shall
forego the collection of future increases in rental and other
charges.
Section
33. Court Costs
and Attorney's Fees: Tenant shall, in addition to its other
obligations hereunder, pay to Landlord, on demand, such expenses as Landlord
may
incur (regardless of whether or not suit is filed), including, without
limitation, court costs and attorneys' fees (whether incurred out of court,
in
the trial court, on appeal, or in bankruptcy or administrative proceedings)
and
disbursements, in enforcing the performance of any obligation of Tenant under
this Lease, collecting any sums due Landlord under this Lease, and/or obtaining
possession of the Premises from Tenant.
Section
34. Proration: As to any items which are Tenant’s
responsibility hereunder, but which are associated for or billed as part of
the
billing for a larger premises of which the Premises constitutes a part, the
Tenant’s portion of such charges shall be based on a proration on the basis of
the number of square feet occupied by Tenant as a fraction of the total square
footage of space owned by Landlord which is the subject of such charges or
xxxxxxxx.
Section
35. Landlord's
Liability: Notwithstanding any provision hereof to the contrary,
Tenant shall look solely to the estate and property of Landlord in and to the
Premises (or the proceeds of insurance) (or the proceeds received by Landlord
on
a sale of such estate and property but not the proceeds of any financing or
refinancing thereof) in the event of any claim against Landlord arising out
of
or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Premises, and Tenant agrees that the liability of Landlord
arising out of or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant's use of the Premises, shall be limited to such estate
and
property of Landlord (or sale proceeds). No other properties or
assets of Landlord shall be subject to levy, execution or other enforcement
procedures for the satisfaction of any judgment (or other judicial process)
or
for the satisfaction of any other remedy of Tenant arising out of or in
connection with this Lease, the relationship of Landlord and Tenant or Tenant's
use of the Premises, and if Tenant shall acquire a lien on or interest in any
other properties or assets by judgment or otherwise, Tenant shall promptly
release such lien on or interest in such other properties and assets by
executing, acknowledging and delivering to Landlord an instrument to that effect
prepared by Landlord's attorneys. Landlord shall have no liability to
Tenant for failure to perform Landlord's obligations hereunder where such
failure(s) is due to causes beyond Landlord's control, including, but not
limited to, acts of God, war, civil commotion, strikes, and embargoes; nor
shall
any such failure entitle Tenant to any abatement or reduction in rent, except
as
may be expressly provided herein, or
26
any
claim
of actual or constructive eviction. Tenant shall not be entitled to
any compensation or reduction in rent by reason of inconvenience or loss arising
from Landlord's entry onto the Premises as authorized hereunder.
Section
36. Security
Deposit: There is no security deposit.
Section
37. Estoppel
Certificate: Tenant shall, without charge therefor and within
five (5) days after any request therefor by Landlord, execute, acknowledge
and
deliver to Landlord a written estoppel certificate, in recordable form,
certifying to Landlord, any Mortgagee, or any purchaser of the Premises or
any
other person designated by Landlord, as of the date of such estoppel
certificate: (i) that Tenant is in possession of the Premises, has
unconditionally accepted the same (or any conditions to such acceptance) and
is
currently paying the rent reserved hereunder; (ii) that this Lease is unmodified
and in full force and effect (or if there has been modification, that the same
is in full force and effect as modified and setting forth such modifications);
(iii) whether or not there are then existing any set-offs or defenses against
the enforcement of any right or remedy of Landlord, or any duty or obligation
of
Tenant, hereunder (and, if so, specifying the same in detail); (iv) the dates,
if any, to which any rent has been paid in advance; (v) that Tenant has no
knowledge of any uncured defaults on the part of Landlord under this Lease
(or
if Tenant has knowledge of any such uncured defaults, specifying the same in
detail); (vi) that Tenant has no knowledge of any event having occurred that
authorized the termination of this Lease by Tenant (or if Tenant has such
knowledge, specifying the same in detail); and (vii) any other matters that
Landlord or its mortgagee may reasonably require to be confirmed.
Section
38. Brokers: Tenant warrants and represents that there
was no broker or agent instrumental in consummating this Lease except the
following: NONE. Tenant agrees to indemnify and hold Landlord harmless against
any claims for brokerage or other commissions arising by reason of a breach
by
Tenant of this Section. Landlord represents and warrants that it has
not involved any real estate broker or agent in connection with this Lease
and
agrees to indemnify and hold harmless Tenant against any claims for brokerage
or
other commissions arising out of Landlord’s actions.
Section
39. Notices: Notices to Landlord under this Lease
shall be given in writing to the following addresses or fax numbers unless
a
different address or fax number is specified.
Landlord's
Notice Address:
_____________________
_____________________
_____________________
Attention: __________
Notices
to Tenant under this Lease may be delivered to the Premises or to the following
address or fax number:
With
copy to:
Xxxxxx
Xxxxxxxx
Xxxxxx
& Xxxx LLP
0000
Xxxxx xx Xxxx Xxxxxxxxx
Xxxxx,
XX
00000
27
Notice
shall be deemed given upon delivery to the above address by hand delivery or
overnight mail service or upon transmission by facsimile or five (5) days after
mailing certified mail, return receipt requested.
Section
40. General
Provisions:
(a) Counterparts: This
Lease may be executed in several counterparts, but all counterparts shall
constitute one and the same instrument. Delivery of a facsimile copy
shall be deemed delivery of an original.
(b) Recording: Tenant
shall not record this Lease. Landlord shall have an absolute right to
record a memorandum of lease evidencing this Lease, and Tenant agrees to execute
such memorandum of lease upon Landlord's request.
(c) Waiver
of Jury Trial/Counterclaims:
(i) Landlord
and Tenant
hereby waive trial by jury in any action, proceeding, or counterclaim brought
by
either of the parties hereto against the other on, or in respect of, any matter
whatsoever arising out of, or in any way connected with, this Lease, the
relationship of Landlord and Tenant hereunder, Tenant’s use or occupancy of the
Premises and/or any claim of injury or damage.
(ii) Tenant
shall not impose
any counterclaims in a summary proceeding to recover possession or any other
action based on termination or holdover.
(d) Rights
Cumulative: All rights, powers and privileges conferred hereunder
upon the parties hereto shall be cumulative, and shall be in addition to those
available at law or in equity.
(e) Waiver
of Rights: No failure of Landlord to exercise any power given
Landlord hereunder, or to insist upon strict compliance by Tenant with its
obligation hereunder, and no custom or practice of the parties at variance
with
the terms hereof constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof.
(f) Time
of Essence: Time is of the essence in this
agreement.
(g) Headings: The
captions, section numbers and index appearing in this Lease are inserted only
as
a matter of convenience and in no way define, limit, construe, or describe
the
scope of intent of such sections of this Lease nor in any way affect this
Lease.
(h) Governing
Law: This Lease shall be governed by the laws of the State of
Florida. Venue for any disputes concerning this Lease shall be
Broward County, Florida.
(i) Severability: If
any provision of this Lease or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder
of
this Lease, or the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
(j) Entire
Agreement: This Lease contains the entire agreement of the
parties hereto and no representations, inducements, promises or agreements,
oral
or otherwise, between the parties not embodied herein, shall be of any force
or
effect.
28
Section
44. Radon
Gas: Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health
risks
to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may
be obtained from your county public health unit. Landlord shall have
no obligation to mitigate any radon.
IN
WITNESS WHEREOF, the parties have executed, or caused to be executed this Lease
as the day and year above written.
WITNESSES: LANDLORD:
________________________________________
(Printed
Name)___________________________
By:
(Printed
Name)___________________________ Its:
TENANT:
IMAGING
DIAGNOSTIC SYSTEMS,
INC.
(Printed
Name)___________________________
By:
(Printed
Name)___________________________ Its:
29
EXHIBIT
A
DESCRIPTION
OF PREMISES
The
land
referred to in this policy is situated in the County of Broward, State of
Florida, and is described as follows:
Xxxx
0 xxx 0, xx Xxxxxxxx Xxxxxxxxxx
Xxxx, according to the plat thereof, as recorded in plat book 96, page 40,
public records of Broward County, Florida.
30
EXHIBIT
B
LANDLORD’S
INSURANCE
31
EXHIBIT
C
TENANT’S
INSURANCE
32
