LEASE AGREEMENT
Exhibit
10.79
THIS LEASE AGREEMENT (this “Lease”) is
made as of this 14th day of
March, 2008, by and between Bright Investments, LLC, an Oregon
limited liability company (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
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
required on the Premises have been made by Tenant at Tenant’s sole cost in the
amount of $23,800. A copy of the contract and cancelled checks
evidencing such repairs and payment thereof is attached as Exhibit
1.
Section
11. Landlord's Insurance and Tenant's
Reimbursement: Tenant will provide an insurance
policy reflecting Landlord as additional insured, which insurance shall be of
the following character:
Hazard insurance on the building (but
not on Tenant’s property) in the amount of $2,100,000.00 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.
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Tenant agrees to pay the premiums for
the foregoing insurance directly to the insurer when due. Landlord
shall be the additional named insured. 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 certificate 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
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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.
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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.
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(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 certificate 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
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insure
(i) that the Repairs will be made properly; (ii) that adequate funds have been
escrowed by Tenant to 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
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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 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
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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 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.
9
(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 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
10
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 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:
Bright Investments LLC
x/x Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx, Xxx
Xxxxxxxxxxx
Attention: Xxxxxx
Xxxx
11
Notices
to Tenant under this Lease may be delivered to the Premises or to the following
address or fax number:
Tenant's Notice Address:
Imaging Diagnostic Systems,
Inc.
0000 XX 00xx
Xxxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Attention: Xxxxx X.
Xxxxxxxx
With copy to:
Xxxxxxxx
Xxxxxx, Esq.
Xxxxxx
& Xxxx LLP
0000
Xxxxx xx Xxxx Xxxxxxxxx
Xxxxx, XX
00000
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.
12
(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.
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:
Bright Investments LLC
/s/ P. Adghir
(Printed
Name) P.
Adghir
/s/ R. Kiban
By: /s/ Xxxxxx
Xxxx
(Printed
Name) R. Kiban
Xxxxxx
Xxxx, Director
TENANT:
Imaging Diagnostic Systems,
Inc.
/s/ Xxx Xxxxxxx Xxxxxxxx
(Printed
Name) Xxx Xxxxxxx
Xxxxxxxx
/s/ Xxxxx X. Xxxx
By: /s/ Xxxxx X.
Xxxxxxxx
(Printed
Name) Xxxxx X.
Xxxx Xxxxx X.
Xxxxxxxx, Executive Vice President
& CFO
13
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.
14
EXHIBIT B and EXHIBIT
C
LANDLORD’S / TENANT’S
INSURANCE
EXHIBIT
1
ROOF CONTRACT & CANCELED
CHECKS