EXHIBIT 10.26
STANDARD COMMERCIAL-INDUSTRIAL LEASE
1. PARTIES. This Lease dated, for reference purposes only DECEMBER 30, 1997 is
made by and between TUCSON TECH PARK (herein called "Lessor") and IMARX
PHARMACEUTICAL CORPORATION (herein called "Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term, at the rental and upon all the conditions set forth herein that
certain real property situated in the County of Pima State of Arizona commonly
known as: Suite 100, located at 1700 East 18th Street, Tucson, Arizona 85719.
Approximately 1500 sq ft as shown on the attached site plan, and described on
Exhibit A attached premises outlined in red hereto and made a part hereof. Said
real property including the land and all improvements thereon is herein called
"the Premises". All dimensions and areas quoted herein are approximate.
3. TERM.
3.1 TERM. The term of this Lease shall be for one year less 15 days
commencing on February 15, 1998 and ending on January 31, 1999 unless sooner
terminated pursuant to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date, Lessor shall not be subject to any liability therefore, nor shall failure
affect the validity of this Lease or the obligations of Lessee hereunder or
extend the term hereof, but in such case Lessee shall not be obligated to pay
rent until possession of the Premises is tendered to Lessee; provided, however
that if Lessor shall not have delivered possession of the Premises within sixty
(60) days from said commencement date, Lessee may, at Lessee's option, by notice
in writing to Lessor within ten (10) days thereafter cancel this Lease, in which
event the parties shall be discharged from all obligations hereunder. If Lessee
occupies the Premises prior to said commencement date such occupancy shall be
subject to all provisions hereof; such occupancy shall not advance the
termination date, and Lessee shall pay rent for such period at the initial
monthly rates set forth below. If Lessor by reason outside the reasonable
control of Lessor, cannot deliver said premises within ninety (90) days from
said commencement date, Lessor may at Lessor's option, by notice in writing
within ten (10) days thereafter cancel this Lease.
4. RENT. Lessee shall pay by the first day of each month, Lessor a monthly
rental of eight hundred forty and no/00 dollars ($840.00) in lawful money of the
United States of America for each and every month of the Lease. The Lessee
further agrees to pay in addition to the rent as provided herein all privilege,
sales, excise, and other taxes (except income taxes) imposed by State Federal,
or municipal upon the rentals herein provided to be paid by the Lessee to the
Lessor. Said payment shall be in addition to and accompanying each rental
payment made by Lessee to Lessor.
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be payable in
lawful money of the United States to Lessor at the address stated herein or to
such other persons or at such other places as Lessor may designate in writing.
The rent due under terms of this Paragraph may be modified by Paragraph Eleven
(11) below.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
$840.00 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder or
otherwise defaults with respect to any provision of this Lease. Lessor may use
apply, or retain all or any portion of said deposit for the payment of any rent
or other charge in default or for the payment of any other sum to which Lessor
may become obligated by reason of Lessee's default, or to compensate Lessor for
any loss or damage which Lessor may suffer thereby if Lessor so uses or applies
all of any portion of said deposit Lessee shall within ten (10) days after
written demand thereof deposit cash with Lessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated, and Lessee's failure
to do so shall be a material breach of this Lease. Lessor shall not be required
to keep said deposit separate from its general accounts. If Lessee performs all
of Lessee's obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Lessor, shall be returned, without payment of
interest or other increment for its use to Lessee (or at Lessor's option, to the
last assignee, if any, of Lessee's interest hereunder) at the expiration of the
term hereof, and after Lessee has vacated the premises.
6. USE.
6.1 USE. The Premises shall be used and occupied only for research and
associated activities, including but not limited to storage, records
maintenance, general office, etc. and for no other purpose Lessee shall not use,
or permit to be used, the Premises or any part thereof, for any purpose or
purposes other than the purpose or purposes for which said Premises are hereby
leased; and no use shall be made or permitted to be made of said Premises, which
will increase the existing rate of insurance upon the building in which said
Premises may be located, or cause a cancellation of any insurance policy
covering said building, or any part thereof, nor shall Lessee sell, or permit to
be kept, used, or sold, in or about said Premises, any article which may be
prohibited by standard form of fire Insurance policies.
6.2 COMPLIANCE WITH LAW. Lessee shall at Lessee's expense, comply promptly
with all applicable statutes, ordinances, rules, regulations, orders, and
requirements in effect during the term or any part of the term hereof regulating
the use by Lessee of the Premises Lessee shall not use or permit the use of the
Premises in any manner that will tend to create waste or a nuisance or, if there
shall be more than one tenant of the building containing the Premises, which
shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES. Lessee hereby accepts the Premises in their
condition existing as of the date of the execution hereof, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto. Except as otherwise stated in this Lease, Lessee hereby acknowledges
that neither the Lessor nor any employees or agents of Lessor has made any oral
or written warranties or representations to Lessee relative to the condition or
use by Lessee of said Premises and Lessee acknowledges that Lessee assumes all
responsibility regarding the Occupational Safety Health Act, the legal use and
adaptability of the Premises and the compliance thereof with all applicable laws
and regulations in effect during the term of this Lease except as otherwise
specifically stated in this Lease.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraph 9 and
except for damage caused by any negligent or intentional act or ommission of
Lessee. Lessee's agents employees, or invitees Lessor, at Lessor's expense shall
keep in good order, condition, and repair the foundations, exterior walls, and
the exterior roof of the Premises. The Lessee shall give the Lessor prompt
notice of any defects or breakage in the structure, equipment fixtures, or of
any unsafe conditions upon or within the Leased Premises. Lessee expressly
waives the benefits of any statute now or hereafter in effect which would
otherwise afford Lessee the right to make repairs at Lessor's expense or to
terminate this Lease because of Lessor's failure to keep the Premises in good
order, condition, and repair.
7.2 LESSEE'S OBLIGATIONS.
(a) Subject to the provision of Paragraphs 7 and 9, Lessee, at Lessee's
expense shall keep in good order and in a neat and sanitary condition and repair
the Premises and every part thereof (whether or not the damaged portion of the
Premises or the means of repairing the same are reasonably or readily accessible
to Lessee) including, without limiting the generality of the foregoing, all
plumbing, heating air conditioning, ventilating, electrical and lighting
facilities and equipment within the Premises, fixtures, interior walls and
interior surface of exterior walls, ceilings, windows, doors plate glass, and
skylights, located within the Premises, and all landscaping, driveways, parking
lots fences and signs located in the Premises and all areas immediately adjacent
to the Premises. Notwithstanding the foregoing the Lessor shall maintain and
repair all Lessee's expense the heating and cooling equipment and shall bill
Lessee for said work.
(b) If Lessee fails to perform Lessee's obligations under this Paragraph
7.2, Lessor may at Lessor's option enter upon the Premises after ten (10) day's
prior written notice to Lessee and put the same in good order condition and
repair, and the cost thereof together with interest thereon shall be due and
payable as additional rent to Lessor together with Lessee's next rental
installment.
7.3 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not without Lessor's prior written consent make any
alterations, improvements or additions in, on or about the Premises. Lessor may
require that Lessee, at Lessee's expense, remove any or all of said alterations,
improvements, or additions at the expiration of the term, and restore the
Premises to their prior condition. Should Lessee make any alterations,
improvements or additions without the prior approval of Lessor. Lessor may
require that Lessee remove the same. Anything herein contained to the contrary
notwithstanding, Lessee shall not drill, punch or otherwise cause any crack,
hole, opening or other break in the roof or roof area, or roof supports, or in
the floors, on the walls or in other permanent areas or structures without first
receiving the prior written consent of Lessor.
'
(b) Any alterations improvements or additions in, or about the
Premises that Lessee shall desire to make and which requires the consent of the
Lessor shall be presented to Lessor in written form with proposed detailed
plans. If Lessor shall give its consent the consent shall be deemed conditioned
upon Lessee acquiring a permit to do so from appropriate governmental agencies
the furnishing of a copy thereof to Lessor prior to the commencement of the work
and the compliance by Lessee of all conditions of said permit in a prompt and
expeditious manner. In addition, Lessor may require Lessee to provide Lessor, at
Lessee's sole cost and expense, a lien and completion bond in an amount equal to
one and one half times the estimated costs of such improvements to insure Lessor
against any liability for mechanics and materialmen's liens and to insure
completion of the work.
(c) Lessee shall pay when due all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanics or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days notice prior to the commencement of any
work in the Premises and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Lessee shall in
good faith, contest the validity of any such lien, claim or demand then Lessee
shall at its sole expenses defend itself and Lessor against the same and shall
pay and satisfy any such adverse judgment that may be rendered thereon before
the enforcement thereof against the Lessor or the Premises, upon the condition
that if Lessor shall require, Lessee shall furnish to Lessor a surely bond
satisfactory to Lessor in an amount equal to such contested lien claim or demand
indemnifying Lessor against liability for the same and holding the Premises free
from the effect of such lien or claim in addition. Lessor may require Lessee to
pay Lessor's attorney's fees and costs in participating in such action if Lessor
shall decide it is to its best interest to do so.
(d) Unless Lessor requires their removal as set forth in Paragraph
7.3(a) all alterations improvements and additions which may be made on the
Premises shall become the property of Lessor and remain upon and be surrendered
with the Premises at the expiration of the term or on sooner termination
thereof.
8. INSURANCE; INDEMNITY.
8.1. Liability Insurance. Lessee shall at Lessees expense obtain and keep
in force during the term of this Lease a policy of comprehensive public
liability Insurance insuring Lessor and Lessee against any liability arising out
of the ownership use occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in an amount of not less than
$300,000 for injury to or death of one person in any one accident or occurrence
and any amount of not less than $500,000 for injury to or death of more than one
person in any one accident or occurrence. Such Insurance shall further insure
Lessor and Lessee against liability for property damage of at least $50,000. The
limits of said insurance shall not, however limit the liability of Lessee
hereunder. In the event that the Premises constitute a part of a larger property
said insurance shall have a Lessor's Protective Liability endorsement attached
thereto. If Lessee shall fail to procure and maintain said Insurance Lessor may,
but shall not be required to, procure and maintain the same, but at the expense
of Lessee.
8.2 PROPERTY INSURANCE.
(a) Lessor shall obtain and keep in force during the term of this
Lease a policy or policies of insurance covering loss or damage to the Premises
and loss of rents; but not Lessee's fixtures equipment or tenant improvements in
such amount as Lessor shall determine providing protection against all perils
included within the classification of fire extended coverage, vandalism,
malicious mischief, special extended perils (all risk) but not plate glass
insurance.
(b) Lessee shall pay to Lessor, during the term hereof. In addition to
the rent the amount of any increase in premiums for the insurance required under
this Paragraph 8.2 over and above such premiums paid during the Base Period as
hereinafter defined, whether such premium increase shall be the result of the
nature of Lessee's occupancy, any act or omission of Lessee, requirements of the
holder of a mortgage or deed of trust covering the Premises or increased
valuation of the Premises or general rate increases. In the event that the
Premises have been occupied previously the words "Base Period" shall mean the
last twelve months of the prior occupancy and in the event that the Premises
have never been previously occupied the words "Base Period" shall mean the
lowest premium reasonably obtainable for the said insurance for the Premises
assuming the most nominal use of the Premises.
(c) If the Premises being leased herein are part of a larger property,
then Lessee shall not be responsible for paying any increase in the property
insurance caused by the acts or omissions of any other tenant of the building in
which the Premises are a part.
(d) Lessee shall pay any such premium increases to Lessor within
thirty (30) days after receipt by Lessee of a copy of the premium statement or
other satisfactory evidence of the amount due. If the insurance policies
maintained hereunder cover other improvements in addition to the Premises,
Lessor shall also deliver to Lessee a statement of the amount of such increase
attributable to the Premises and showing in reasonable detail the manner in
which such amount was computed. If the term of this Lease does not expire
concurrently with the expiration of the period covered by such insurance
Lessee's liability for premium increases shall be prorated on an annual basis.
8.3 INSURANCE POLICIES. Lessee shall deliver to Lessor copies of policies
of liability insurance required under Paragraph 8.1 or certificates evidencing
the existence and amounts of such insurance with loss payable clauses
satisfactory to Lessor. No such policy shall be cancellable or subject to
reduction of coverage or other modification except after ten (10) days prior
written notice to Lessor. Lessee shall within ten (10) days prior to the
expiration of such policies furnish Lessor with renewals or binders thereof, or
Lessor may order such insurance and charge the cost thereof to Lessee which
amount shall be payable by Lessee upon demand Lessee shall not do or permit to
be done anything which shall invalidate the insurance policies referred to in
Paragraph 8.2.
8.4 WAIVER OF SUBROGATION. Lessee and Lessor each hereby waives any and all
rights of recovery against the other or against the officers employees, agents
and representatives of the other, for business interruption or for loss of or
damage to such waiving party or its property or the property of others under its
control, where such business interrupting loss or damage is insured against
under any insurance policy in force at the time of such business interrupting
loss or damage: Lessee and Lessor shall, upon obtaining the policies of
insurance required hereunder give notice to the insurance carrier or carriers
that the foregoing mutual waiver of subrogation is contained in this Lease.
8.5 INDEMNIFY. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises or from the
conduct of Lessee's business or from any activity, work or things, done
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease or arising from any
negligence of the Lessee, or any of Lessee's agents contractors or employees,
and from and against all costs attorney's fees expenses and liabilities incurred
in the defense of any such claim or any action or proceeding brought thereon and
in case any action or proceeding be brought against Lessor by reason of any such
claim. Lessee upon notice from Lessor shall defend the same at Lessee's expense
by counsel satisfactory to Lessor.
8.6 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods wares, merchandise or other property of
Lessee. Lessee's employees, invitees customers or any other person in or about
the Premises nor shall Lessor be liable for injury to the person of Lessee.
Lessee's employees, agents or contractors, whether such damage or injury is
caused by or results from fire, steam electricity, gas, water or rain or from
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures or from any other
cause, whether the said damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Lessee.
9. DAMAGE OR DESTRUCTION.
9.1 PARTIAL DAMAGE-INSURED. Subject to the provisions of Paragraphs 9.3 and
9.4 if the Premises are damaged and such damage was caused by a casualty covered
under an insurance policy required to be maintained and pursuant to Paragraph
8.2, Lessor shall at Lessor's expense repair such damage as soon as reasonably
possible and this Lease shall continue in full force and effect but Lessor shall
not repair or replace Lessee's fixtures, equipment or tenant improvements.
9.2 PARTIAL DAMAGE-UNINSURED. Subject to the provisions of Paragraphs 9.3
and 9.4 if at any time during the term hereof the Premises are damaged, except
by a negligent or willful act of Lessee (in which event Lessee shall make the
repairs at its expense) and such damage was caused by a casualty not covered
under an insurance policy required to be maintained pursuant to Paragraph 8.2.
Lessor may at Lessor's option either (i) repair such damage as soon as
reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence of
such damage in the event Lessor elects to give such notice of Lessor's intention
to cancel and terminate this Lease. Lessee shall have the right within ten (10)
days after the receipt of such notice to give written notice to Lessor of
Lessee's intention to repair such damage at Lessee's expense, without
reimbursement from Lessor, in which event this Lease shall continue in full
force and effect and Lessee shall proceed to make such repairs as soon as
reasonably possible. If Lessee does not give such notice within such 10-day
period this Lease shall be cancelled and terminated as of the date of the
occurrence of such damage.
9.3 TOTAL DESTRUCTION. If at any time during the term hereof the Premises
are totally destroyed from any cause whether or not covered by the insurance
required to be maintained by Lessor pursuant to Paragraph 8.2 (including any
total destruction required by any authorized public authority) this Lease shall
automatically terminate as of the date of such total destruction.
9.4 DAMAGE NEAR END OF TERM. If the Premises are partially destroyed or
damaged during the last six (6) months of the term of this Lease Lessor may at
Lessors option cancel and terminate this Lease as of the date of occurrence of
such damage by giving written notice to Lessee of Lessor's election to do so
within thirty (30) days after the data of occurrence of such damage.
9.5 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) If the Premises are partially destroyed or damaged and Lessor or
Lessee repairs or restores them pursuant to the provisions of this Paragraph 9,
the rent payable hereunder for the period during which such damage, repair or
restoration continues shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired Except for abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence such repair or
restoration within ninety (90) days after such obligation shall accrue. Lessee
may at Lessee's option cancel and terminate this Lease by giving Lessor written
notice of Lessee's election to do so at any time prior to the commencement of
such repair or restoration in such event this Lease shall terminate as of the
date of such notice.
9.6 TERMINATION--ADVANCE PAYMENTS. Upon termination of this Lease pursuant
to this Paragraph 9 an equitable adjustment shall be made concerning advance
rent and any advance payments made by Lessee to Lessor. Lessor shall in
addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.7 WAIVER. Lessee waives the provisions of A R S Section 33-343 which
relate to the termination of a lease when the leased premises is destroyed and
agrees that such event shall be governed by the terms of this Lease.
10. TAXES
10.4 PERSONAL PROPERTY TAXES.
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures furnishings equipment and all other personal
property of Lessee contained in the Premises or elsewhere. When possible Lessee
shall cause said trade fixtures furnishings equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property. Lessee shall pay Lessor the taxes attributable to Lessee
within 10 days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
10.5 TRANSACTION PRIVILEGE TAX. Lessee shall pay at the time of and in
addition to the rent as additional rent any sales gross income rental occupancy,
transaction privilege tax or other like tax measured by or imposed upon the rent
paid by Lessee under this Lease by any governmental authority pursuant to any
present or future law.
12. UTILITIES. Lessee shall pay for all water gas heat light power telephone and
other utilities and services supplied to the Premises together with any taxes
thereon. If any such services are not separately metered to Lessee. Lessee shall
pay a reasonable proportion to be determined by Lessor of all charges jointly
metered with other premises.
13. ASSIGNMENT AND SUBLETTING.
13.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign transfer, mortgage sublet or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent which Lessor shall not unreasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance, or
subletting without such consent shall be void, and shall constitute a breach of
this Lease.
13.2 NO RELEASE OF LESSEE. Regardless of Lessor's consent, no subletting or
assignment shall release Lessee of Lessee's obligation or alter the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rent by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting.
14. DEFAULTS; REMEDIES.
14.1 DEFAULTS. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee
other than described in Paragraph (b) above, where such failure shall continue
for a period of thirty (30) days after written notice hereof from Lessor to
Lessee; provided, however, that if the nature of Lessee's default is such that
more than thirty (30) days are reasonably required for its cure, then Lessee
shall not be deemed to be in default if Lessee commenced such cure within said
30-day period and thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general assignment, or general
arrangement for the benefit of creditors: (ii) the filling by or against Lessee
of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Lessee, the same is dismissed within sixty
(60) days; (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days: or (iv) the attachment, execution, or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
14.2 REMEDIES. In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have by reason of such default or breach;
(a) Re-enter upon the Premises with or without process of law and take
possession of the same and of all trade fixtures, furnishings and equipment of
Lessee including the right to change door locks and suspend utilities and
services and expel or remove Lessee and all other parties occupying the
Premises, using such force as may reasonably be necessary to do so without being
liable to Lessee for any loss or damage occasioned thereby Such personal
property may be removed by Lessor from the Premises and stored for the account
of and at the expense and risk of Lessee; or Lessor may, at its option, and
after giving Lessee five (5) days' prior written notice thereof, sell said
personal property at public or private sale for such price and upon such terms
as Lessor may determine, applying the proceeds of such sale against the balance
owing by Lessee or Lessor under this Lease, including the expense of such
removal and sale.
(b) Terminate this Lease, or from time to time, without terminating
this Lease, relet the Premises or any part thereof such terms and conditions
as Lessor in its sole discretion, shall determine with the right to make
alterations and repairs to said Premises: provided, however, that Lessor shall
in no way be responsible or liable for any failure to relet the Premises or any
part thereof or for any failure to collect any rent due upon any such reletting.
In the event Lessor relets the Premises from time to time, the rentals so
received shall be applied first to the payment of any obligation other than rent
due hereunder from Lessee to Lessor, than to the payment of the cost of such
reletting, including attorneys' fees and broker's commission, which Lessor may
have paid or incurred in connection with such repossession and reletting, then
to the payment of the costs of any alteration or repair to the Premises to make
them tenantable or acceptable to a new tenant, then to the payment of rent due
and unpaid hereunder and the residue, if any, shall be held by the Lessor and
applied in payment of future rent as the same may become due and payable
hereunder, Whether or not the premises are relet. Lessee shall pay Lessor all
amounts required to be paid by Lessee up to the date of Lessor's re-entry and
thereafter Lessee shall pay Lessor until the end of the term the amount of all
rentals and other charges required to be paid by Lessee hereunder, less the
proceeds of such reletting during the term hereof. if any, after payment of the
foregoing expenses.
(c) Pursue any other remedy now or hereafter available to Lessor under
the laws and decisions of the State of Arizona. Lessor shall not by such
re-entry or any other act be deemed to have terminated this Lease or the
liability of Lessee for the total rent reserved hereunder unless Lessor shall
give to Lessee written notice of Lessor's election to terminate this Lease. In
the event that Lessor shall terminate this Lease as provided herein, Lessor
shall thereupon be entitled to recover from Lessee the worth, at the time of
such termination, or the excess, if any, of the rent and other charges required
to be paid by Lessee hereunder for the balance of the term (If this Lease had
not been so terminated) over the then reasonable rental value of the Premises
for such period.
15. LATE CHARGES. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent and other sums due hereunder will cause Landlord to incur costs
not contemplated, by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Landlord by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Tenant shall not be received by
Landlord or Landlord's designee within five (5) days after such amount shall be
due, Tenant shall pay to Landlord a late charge equal to ten percent (10%) of
such overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount not
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
16. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said power,
(all of which are herein called "condemnation." this Lease shall terminate as to
the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than 35% of the floor area of the
improvements on the premises or more than 35% of the land area of the Premises
which is not occupied by any improvements, is taken by condemnation. Lessee may,
at Lessee's option, to be exercised in writing only within ten (10) days after
Lessor shall have given Lessee written notice of such taking (or in the absence
of such notice, within ten (10) days after the condemning authority shall have
taken possession) terminate this Lease as of the date the condemning authority
takes such possession. If Lessee does not terminate this Lease in accordance
with the foregoing, this Lease shall remain in fullforce and effect as to the
portion of the Premises remaining, except that the rent shall be reduced in the
proportion that the floor area taken bears to the total floor area of the
building situated on the Premises. Any award for the taking of all or any part
of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages provided,
however that Lessee shall be entitled to any award for loss of damage to
Lessee's trade fixtures and removable personal property. In the event that this
Lease is not terminated by reason of such condemnation, Lessor shall, to the
extent of severance damages received by Lessor in connection with such
condemnation, repair any damage to Premises caused by such condemnation except
to the extent that Lessee has been reimbursed therefor by the condemning
authority. Lessee shall pay any amount in excess of such severance damages
required to complete such repair.
award for loss or damage to Lessee's trade fixtures and removable personal
property in the event that this Lease is not terminated by reason of such
condemnation Lessor shall to the extent of severance damages received by Lessor
in connection with such condemnation, repair any damage to Premises caused by
such condemnation except to the extent that Lessee has been reimbursed therefor
by the condemning authority Lessee shall pay any amount in excess of such
severance damages required to complete such repair.
17. SURRENDER. Lessee shall on the last day of the term hereof, or upon any
earlier termination of this Lease, surrender and deliver up the Premises to
Lessor without delay and in good order, condition and repair broom-clean,
ordinary wear and tear excepted. All furniture, furnishings, fixture and
equipment, installed or used in the operation of the Premises, shall throughout
the term of this Lease, be the property of Lessee. At the expiration or earlier
termination of this Lease, provided Lessee is not in default hereunder, Lessee
may remove its unattached, movable equipment and trade fixtures. Upon the
expiration or termination of this Lease, if so requested by Lessor, Lessee shall
within ten (10) days following such expiration or termination, remove all such
fixtures and equipment installed on the Premises by Lessee, whether or not such
fixtures and equipment are attached to the building or other improvements
located on the Premises, unless such removal would cause damage to the Premises
which would require substantial repair Lessee shall fully repair all damage of
any kind or character to the Premises occasioned by the removal of any fixtures
or equipment which repair shall include the patching and filing of holes and
repair of structural damage. Any fixtures, furnishings, equipment or other
personal property of Lessee which shall remain on the Premises or any part
thereof for ten (10) days following the expiration or termination of this Lease,
at the option of Lessor, shall be deemed to have been abandoned by Lessee and
either may be retained by Lessor as its property or disposed of, without
accountability, in such manner as Lessor may determine.
18. GENERAL PROVISIONS
18.1 ESTOPPEL CERTIFICATE
(a) Lessee shall at any time upon not less than ten (10) days prior
written notice from Lessor execute, acknowledge, and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, and uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such time shall
be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there are
no uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Premises, or any
part thereof, Lessee hereby agrees to deliver to any lender designated by Lessor
such financial statements of Lessee as may be reasonably required by such
lender. Such statements shall include the past three years' financial statements
of Lessee. All such financial statements shall be received by Lessor in
confidence and shall be used only for the purposes herein set forth
18.2 LESSOR'S LIABILITY. The term Lessor" as used herein shall mean only
the owner or owners at the time in question of the fee title or a lessee's
interest in a ground lease of the Premises, in the event of any transfer of such
title or interest, Lessor herein named (and in case of any subsequent transfers
the then grantor) shall be relieved from and after the date of such transfer of
all liability as respects Lessor's obligations thereafter to be performed,
provided that any funds in the hands of Lessor or the then grantor at the time
of such transfer, in which Lessee has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by Lessor
shall, subject as aforesaid, be binding on Lessor's successors and assigns only
during their respective periods of ownership.
18.3 SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way effect the
validity of any other provision hereof.
18.4 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided,
any amount due to Lessor not paid when due shall bear interest at 16% per annum
from the date due Payment of such interest shall not excuse or cure any default
by Lessee under this Lease.
18.5 TIME OF ESSENCE. Time is of the essence.
18.6 CAPTIONS. Article and paragraph caption are not a part hereof.
18.7 INCORPORATION OF PRIOR AGREEMENT; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification.
18.8 NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and may be given by personal delivery or by certified mail, and if
given personally or by mail shall be deemed sufficiently given if addressed to
Lessee or to Lessor at the address noted below the signature of the respective
parties, as the case may be Either party may by notice to the other specify a
different address for notice purposes expect that upon Lessee's taking
possession of the Premises, the Premises shall constitute Lessee's address for
notice purposes. A copy of all notices required or permitted to be given to
Lessor hereunder shall be concurrently transmitted to such party or parties at
such addresses as Lessor may, from time to time hereafter designate by notice to
Lessee.
18.9 WAIVERS. No waiver by Lessor of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision Lessor's consent to or approval of any act shall
not be deemed to render unnecessary the obtaining of Lessor's consent to or
approval of any subsequent act by Lessee. The acceptance of rent hereunder by
Lessor shall not be a waiver of any preceding breach by Lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so accepted,
regardless of Lessor's knowledge of such preceding breach at time of acceptance
of such rent.
18.10 RECORDING. Lessee shall not record this Lease without Lessor's prior
written consent, and such recordation shall, at the option of Lessor constitute
a non-curable default of Lessee hereunder. Either party shall upon request of
the other, execute, acknowledge and deliver to the other a "short form"
memorandum of this Lease for recording purposes.
18.11 HOLDING OVER. If Lessee remains in possession of the Premises or any
part thereof after the expiration of the term hereof without the express written
consent of Lessor, such occupancy shall be a tenancy from month to month at a
rental in the amount of two times the last monthly rental plus all other charges
payable hereunder and upon all the term hereof applicable to a month-to-month
tenancy.
18.12 CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall wherever possible, be cumulative with all other remedies at
law or in equity.
18.13 COVENANTS AND CONDITIONS. Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
18.14 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions of
Paragraph 18.2, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of Arizona.
18.15 SUBORDINATION.
(a) This Lease, at Lessor's option shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the property of which the Premises are a part and to any
and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements, and extensions thereof if any
mortgages, trustee, or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust, or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust, or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust, or ground lease, as the case may be, and failing to do so within ten (10)
days after written demand, does hereby make, constitute, and irrevocably appoint
Lessor as Lessee's attorney in fact and in Lessee's name, place and stead, to
do so.
18.16 ATTORNEY'S FEES. If either party brings an action to enforce the
terms hereof or declare rights hereunder, the prevailing party in any such
action, on trial or appeal, shall be entitled to his reasonable attorney's fees
to be paid by the losing party as fixed by the court.
18.17 LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times between 8 a.m. and 5 p.m. weekdays for
the purpose of inspecting the same, showing the same to prospective purchasers
or lenders, and making such alterations, repairs, improvements, or additions to
the Premises or to the building of which they are a part as Lessor may deem
necessary or desirable. Lessor may at any time place on or about the Premises
any ordinary For Sale and For Lease signs.
18.18 SIGNS AND AUCTIONS. Lessee shall not, without the prior written
consent of Lessor (a) paint or place any signs on the Premises or anywhere on or
in the Building or (b) place any window coverings, serials or flagpoles, or the
like, on the Premises or anywhere on or in the building visible from outside the
Premises. Lessor reserves the right to disapprove of signs, window coverings on
wholly aesthetic grounds and establish a sign criteria for the Premises. Lessee
shall pay the expenses involved in the erection of any sign and obtaining the
permit therefor and the Lessee shall remove said sign at Lessor's option and any
window coverings, serials or flagpoles or the like on the termination of this
Lease. Lessee shall not conduct any auction or going-out-of-business sale on the
Premises without the Lessor's prior written consent.
18.19 MERGER. The voluntary or other surrender of this Lease by Lessee or a
mutual cancellation thereof, shall not work a merger, and shall at the option of
Lessor terminate all or any existing subtenancies or may, at the option of
Lessor, operate as an assignment to Lessor of any or all such subtenancies.
18.20 CORPORATE AUTHORITY. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation Lessee shall within thirty (30) days
after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
19. PARKING AND COMMON AREAS. The Lessee, its agents, employees, and invitees
shall be entitled to park in common with other tenants of Lessor providing that
it agrees not to over-burden the parking facilities and agrees to cooperate with
the Lessor and other tenants in the use of the parking facilities. The Lessor
specifically reserves the right in its absolute discretion to determine whether
parking facilities are becoming overburdened and in such event to allocate the
parking spaces among the Lessee and other tenants their agents, employees, and
business invitees using the parking facilities. All loading operations for
receipts or shipment of goods, wares, and merchandise by the Lessee shall be
done in the rear of the Leased Premises or in such area therein which is
specifically designated in writing by the Lessor.
20. SAFETY. Lessee will maintain on Leased Premises at all times during the
terms hereof adequate number, size and type of fire extinguishers as is
appropriate to Lessees business Lessee will at all times adhere to good safety
practices or as may be required by safety inspectors. No goods, merchandise or
materials shall be kept, stored or sold by Tenant on or about the premises which
are in any way hazardous, and Tenant shall not suffer or permit any acts of
omission or commission to be done on or about the premises which will increase
the existing rate of fire insurance. If the said insurance rate is increased by
such an act, then the increased cost of such insurance on the building of which
the premises are a part shall be paid by Tenant to Landlord with the next
succeeding installment of rental, Tenant, at its sole expense, shall comply with
any and all requirements of any insurance organization or company necessary for
the maintenance of reasonable fire and public liability insurance covering the
premises or the building of which the premises are a part.
21. MULTIPLE TENANT BUILDING. In the event that the Premises are part of a
larger building or group of buildings then Lessee agrees that it will abide by,
keep and observe all reasonable rules and regulations which Lessor may make from
time to time for the management, safety, care and cleanliness of the building
and grounds, the parking of vehicles and the preservation of good order therein
as well as for the convenience of other occupants and tenants of the building.
Lessee agrees to pay, as additional rent during the Lease term its prorata share
of Lessor's cost of operating, maintaining and repairing such portion of the
Premises or such portion of the property of which the Premises are a part which
are common areas or used or shared by Lessee and other occupants thereof,
including but not limited to all parking areas, roadways, walkways, truckways,
stairways, roofing areas, loading docks, delivery areas, landscaped areas,
maintenance buildings, business center sign, common toilets and washroom
facilities and all other facilities provided for the convenience and use of
Lessee, its agents, employees and customers. Such costs shall include all costs
for utilities, cleaning, garbage and refuse disposal, sweeping landscaping,
policing wages, supplies and small tools. The proportionate share of the common
area cost which Lessee is obligated to pay shall be based upon the ratio that
the floor area in the Premises bears to the total floor area in the building or
group of buildings of which the Premises are a part. The amount which Lessee is
required to pay shall be payable within ten (10) days after receipt by Lessee of
a statement for the same. The violations of any such rules and regulations, or
the failure to pay such prorata share of costs, shall be deemed a material
breach of this Lease by Lessee.
22. Additional items as set forth below are made a part of this lease.
Rent is due on the first day of each month. Checks are payable to:
TUCSON TECH PARK
Send checks to: Tucson Tech Park
1700 East 18th Street #101
Tucson, AZ 85719
OR
drop off at the office. There is a mail slot for your convenience, after hours.
NO OUTSIDE STORAGE IS ALLOWED. Items left out longer than 24 hours will be
considered abandoned and handled accordingly by Management. Any costs involved
in such removal shall be charged to Lessee.
SEE ADDENDUM which is attached to and made a part of this Lease.
The parties hereto have executed this Lease on the dates specified immediately
adjacent to their respective signatures.
If this Lease has been ________ in it has been prepared for submission to your
attorney for his approval. No representation or recommendation is made by the
Lessor or its agents or employees as to the legal sufficiency, legal effect, or
tax consequences of this Lease or the transaction relating thereto.
DATE: /s/ Illegible 2-26-98
------------------------------- X --------------------------------------
Print Name
HOME ADDRESS:
----------------------- X --------------------------------------
Signature
EMERGENCY PHONE: X 770-1259-122 --------------------------------------
"LESSEE"
--------------------------------------
LESSEE'S EIN #
/s/ Betty June Slawson, Agent
--------------------------------------
DATE: 2-25-98 --------------------------------------
AGENT: Betty June Slawson --------------------------------------
"LESSOR"
(FLOOR PLAN)
(FLOOR PLAN)
LEASE EXTENSION / RENEWAL
ADDENDUM
This form, when signed by Lessor and Lessee, will serve as an addendum to those
certain leases dated December 30, 1997, by and between: "Lessor", TUCSON TECH
PARK, and "Lessee", IMARX THERAPEUTIC, INC., for space located at 1700 East 18th
Street, Suites 100, 102 and 103, Tucson, Arizona, 85719.
ATTN: Ms. Jennifer Marshall
IMARX THERAPEUTIC, INC.
ADDRESS: 1635 East 18th Street
Tucson, AZ 85719
This Lease shall be extended/renewed for an additional term of twelve (12)
months commencing January 1, 2007 and ending December 31, 2007. The base rent
shall be two thousand, four hundred, thirty and no/00 dollars, ($2430.00) per
month plus applicable rental tax, presently at 2.5%.
New Base Rent: $2430.00
Tax @ 2% 60.75
--------
Monthly Total $2490.75
All other terms and conditions of the Lease shall remain the same.
Please note, this increase is to be effective February 1, 2007.
MAKE CHECKS PAYABLE TO: TUCSON TECH PARK
(PLEASE WRITE YOUR SUITE # AND ADDRESS ON YOUR CHECK)
MAIL PAYMENT TO: TUCSON TECH PARK
C/O ASSET WEST MANAGEMENT, LTD.
1700 East 18th Street, Suite 101
TUCSON, AZ 85719
OFFICE: (520)624-1665
BETTY JUNE'S PAGER: (800) 251-7893
ELDA'S PAGER: 446-2887
OR BRING PAYMENT TO THE LEASING OFFICE LOCATED AT:
(There is a mail slot in the door for your convenience)
1700 EAST 18TH STREET #101
REMINDER: Rent is due and payable on the 1st of each month and subject to late
penalties on the 2nd day.
Lessee's EMERGENCY PHONE NUMBER (Where Lessee can be reached in the event of an
EMERGENCY):
(520) 770-1259 OR: (___) ______________________
IMARX THERAPEUTICS, INC. 01-09-07
Lessee's (Please Print Full Name Above) DATE
/s/ Illegible
- ------------------------------------- 01-09-07
Lessee's Signature DATE
1635 EAST 18TH STREET TUCSON, AZ 85719
Lessee's address (For Notices)
/s/ Betty June Slawson
- ------------------------------------- JAN 10 2007
DATE
Agent for Lessor, Betty June Slawson, Asset West Management, Ltd.
Please complete, sign and return both originals of this Lease Addendum to me at
the TUCSON TECH PARK OFFICE, 1700 East 18th Street, #101 Tucson, AZ 85719,
along with your current Certificate(s) of Insurance, per your Lease. A fully
executed copy will be returned to you upon completion.
In the event this is not returned to me within fourteen (14) days and special
arrangements have not been agreed upon, your Lease shall be extended on a month
to month basis at ten per cent (10%) more than the rate listed above.
If you have any questions regarding your lease renewal, please contact me at
624-1665 Monday-Friday between the hours of 10am - 3pm or by calling my pager at
(800) 251-7893.
Thanks in advance, Betty June Slawson Mailed January 5, 2007