Exhibit 10.71
FORBEARANCE
AGREEMENT
Siemens Financial Services, Inc.
This Forbearance Agreement (the
“Agreement”), dated as of July 1, 2005 is by and
between Siemens Financial Services, Inc. (“Siemens”)
and Molecular Imaging Corporation (“Molecular”).
Reference is made to those certain Leasing Schedule Nos.
141-0001111-002 dated as of May 9, 2003 by and between Siemens as
assignee of Siemens Medical Solutions USA, Inc. and Molecular
Imaging Corporation f/k/a Mobile PET Systems, Inc.
(“Lessee”); 141-0001098-001 dated as of January 16,
2001 by and between Siemens and Lessee; 141-0001100-001 dated as of
January 16, 2001 by and between Siemens and Lessee; 141-0000124-000
dated as of June 11, 2003 by and between Siemens and Lessee;
141-0001096-000 dated as of November 2, 2000 by and between Siemens
and Lessee; 141-0000066-000 dated as of October 7, 2002 by and
between Siemens and Lessee; 141-0000060-000 dated as of November
19, 2002 by and between Siemens and Lessee; 141-0001098-000 dated
as of December 21, 2000 by and between Siemens and Lessee;
141-0001100-001 dated as of January 16, 2001 by and between Siemens
and Lessee; 141-0001104-000 dated as of April 15, 2001 by and
between Siemens and Lessee; 141-0001100-000 dated as of January 5,
2000 by and between Siemens and Lessee; 141-0001103-000 dated as of
April 18, 2001 by and between Siemens and Lessee; and
141-0001104-001 dated as of August 1, 2001 by and between Siemens
and Lessee, all as amended and pursuant to that certain Master
Equipment Lease Agreement dated as of October 23, 2000 by and
between Siemens and Lessee, and the Contract Addendum Leasing
Schedule dated June 30, 2004 and Addendum Master Equipment/Service
Agreement dated June 30, 2004 (collectively, the
“Leases”). Terms used herein and otherwise not defined
herein shall have the meanings ascribed thereto in the
Leases.
WHEREAS, Molecular is in Default of
its respective obligations under the Leases for failure to make
certain payments when due and Molecular acknowledges said Default;
and
WHEREAS, Molecular has not cured the
Default; and
WHEREAS, Siemens has accelerated all
amounts due and owing to Siemens under the Leases and has made
demand for the return of the Equipment subject to the Leases;
and
WHEREAS, Molecular acknowledges all
of the foregoing and that the Default remains outstanding;
and
WHEREAS, Siemens is willing to
forebear only as expressly provided herein in the exercise and
enforcement of such rights, powers and remedies only upon
compliance and fulfillment by Molecular of the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of
the terms and conditions contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as
follows:
1. CURRENT ARREARAGE UNDER THE
LEASES
1.1 Molecular hereby acknowledges,
confirms and agrees that, through and including the date of this
Agreement, the following amounts are currently past due and owing
to Siemens pursuant to the Leases:
$12,014,911.87 as of the date of
this Agreement.
1.2 Molecular hereby acknowledges,
confirms and agrees that as of the date hereof, the Leases are in
full force and effect and represent the valid, legal and binding
obligations of Molecular to Siemens.
2. FORBEARANCE
2.1 Siemens hereby agrees to forbear
from exercising and enforcing its rights, powers and remedies under
the Leases or now existing at law or in equity or by statute with
respect to the Event of Default set forth above, provided that
Molecular shall comply with and fulfill each of the following terms
and conditions:
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A.
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Molecular shall
pay to Siemens three (3) consecutive monthly payments of $150,000
each starting on or before June 30, 2005.
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B.
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Molecular shall
grant to Siemens free and unfettered access to the Equipment
covered by the Leases upon reasonable notice by Siemens.
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2.2 Molecular agrees that any
default under this Agreement by Molecular will also constitute an
Event of Default under the Leases and that any Event of Default
(other than the failure to make the full lease payment under the
Leases during the forbearance period or other default existing as
of the date of this Agreement) under the Leases shall constitute a
default hereunder. Molecular hereby waives all notices and cure
periods which may be provided for under the Leases and agrees that
Siemens shall be immediately entitled to all relief afforded to
Siemens thereunder. Notwithstanding anything to the contrary,
Siemens shall give five (5) business days written notice to
Molecular at the address provided for under the Leases of any
occurrence of a Default under this Agreement and an opportunity to
cure such default without acceleration during such five (5) day
period.
2.3 Siemens’ forbearance is
further expressly subject to and conditioned upon Molecular’s
strict compliance with each an
