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Exhibit 10.79
LEASE AGREEMENT
THIS LEASE AGREEMENT (this
“Lease”) is made as of this 14 th
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 6531 Northwest 18
th
Court, Plantation, Florida 33313, 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.
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 abate 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
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.
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, a
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