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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 6531 NW
18 th
Court, Plantation, Broward County, Florida, 33313, 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.
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.
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
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).
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
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 Adorno & Yoss
LLP, 2525 Ponce De Leon Boulevard, Suite 400, Miami, Florida
33134.
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.
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 Adorno & Yoss LLP acting in such
dual capacities. Adorno & Yoss 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
B.V.
Roerdompstraat
19
1171
HB Badhoevedorp
The
Netherlands
If
to Seller:
Imaging
Diagnostic Systems, Inc.
6531
NW 18 th
Court
Plantation,
FL 33313
With
copy to:
Robert
Macaulay, Esquire
Adorno
& Yoss LLP
2525
Ponce De Leon Boulevard
Suite
400
Miami,
FL 33134
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.
(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
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.
(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]
IN WITNESS WHEREOF , the parties hereto have executed this
Agreement as of the date first written above.
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WITNESSES:
/s/ R. W. Ng
NAME: R. W. Ng
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PURCHASER :
SUPERFUN
B.V., a corporation formed under the laws of The
Netherlands
By:
/s/ E. Paap
E.
Paap
|
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WITNESSES:
/s/ Gregg Rodes
NAME : Gregg Rodes
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SELLER :
IMAGING
DIAGNOSTIC SYSTEMS, INC., a Florida corporation
Per:
/s/ Timothy B. Hansen
Timothy
B. Hansen
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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
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