Exhibit 10.72
FORBEARANCE
AGREEMENT
This Forbearance Agreement (the
“ Agreement ”), dated as of July 5, 2005 is by
and between Ascendiant PET Partners-I, LLC, a California Limited
Liability Company, (“ Lessor ”) and Molecular
Imaging Corporation, a Delaware Corporation, referred to as
(“ Molecular ”) collectively referred to as the
“Parties”. Reference is made to the Equipment Lease
Modification Agreement dated as of May 2, 2003 and Modification
Agreement (Security Agreement) dated May 2, 2003 regarding the
modification and assignment from Finova Capital Corporation to
Lessor of three (3) separate Equipment Lease Agreements dated April
8, 1999, and identified as Equipment Lease number 4125, Lease
Schedules No. 4125.01, 4125.02 and 4125.03A (with addendums,
amendments and schedules thereto 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
as evidenced by the Notice of Default sent by Lessor to Lessee on
April 14 th 2005; and
WHEREAS, Molecular has not cured the
Default for said Leases; and
WHEREAS, Lessor has accelerated all
amounts due and owing to Lessor 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, Lessor 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; and
WHEREAS, Molecular hereby
acknowledges that, except as provided herein, Lessor is not waiving
any rights, powers, and remedies Lessor has under said Leases, and
Molecular shall still be responsible for all payments, during the
term of said Leases.
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 Lessor pursuant to the Leases:
$1,330,000 plus tax (as provided in
the Leases) as of the Date of this Agreement, the amount of
$570,000 of which has been pre-paid by Molecular pursuant to the
terms of the Leases.
FORBEARANCE AGREEMENT
BETWEEN ASCENDIANT PET PARTNERS - I, LLC AND
MOLECULAR IMAGING CORPORATION
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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 Lessor.
1.3 Molecular hereby acknowledges
that, except as provided herein, Lessor is not waiving any rights,
powers, and remedies Lessor has under said Leases, and Molecular
shall still be responsible for all payments, during the term of
said Leases.
2. FORBEARANCE
2.1 Lessor 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 Lessor three (3) consecutive monthly payments of thirty
three thousand nine hundred thirty six dollars and thirty three
cents ($33,936.33) each starting on or before June 30, 2005, in the
form of a certified check and/or prearranged wire transfer. Such
payments herein provided shall be paid as one-third partial payment
of Molecular’s lease obligations to Lessor. Unless otherwise
mutually agreed upon in writing, the balance of Molecular’s
lease obligations to Lessor shall be still owing and added to the
total balance payable under the terms of the Lease.
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B.
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Molecular shall
grant to Lessor free and unfettered access to the Equipment covered
by the Leases upon reasonable notice by Lessor.
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C.
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Molecular will
pay to Lessor, immediately via wire transfer upon execution of this
Agreement, the first payment provided for under Section 2.1(A)
herein in the amount of $33,936.33 representing payment for said
Leases.
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D.
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The Parties
agree that if Molecular fails to make a timely payment for said
Leases as provided in Section 2.1(A) herein, except as provided
herein, Lessor will not be obligated to adhere to any Notice
requirements as required by law and/or Agreements, and Lessor will
have full authority to proceed with all of its default rights as a
result of Molecular’s failure to make said
payments.
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E.
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Lessor
acknowledges receipt from Molecular of an accurate itemization of
Equipment specifications to Lessor.
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F.
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Lessor
acknowledges receipt from Molecular of an accurate list of the
location of said Leased Equipment.
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G.
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Lessor
acknowledges receipt from Molecular of an accurate list, including
but not limited to, all hospitals, service routes, and associated
schedules of said Equipment.
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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) under the Leases shall
constitute a default hereunder. Molecular hereby waives all notices
and cure periods which
