Exhibit 10.31
OFFICE LEASE
BETWEEN
FORTY-EIGHT-O-ONE LLC,
AND
IMARX THERAPEUTICS INC.
FOR
0000 XXXX XXXXXXXX XXXX.
XXXXX 000
XXXXXX, XXXXXXX
TABLE OF CONTENTS
1. DESCRIPTION OF PROPERTY.............................................. 1
2. TERM................................................................. 1
3. BASE RENT............................................................ 2
4. BASE RENT ADJUSTMENT................................................. 2
5. LATE CHARGES......................................................... 3
6. TENANT IMPROVEMENT ALLOWANCE......................................... 4
7. INTERST ON PAST-DUE OBLIGATIONS...................................... 4
8. USE OF PREMISES...................................................... 4
9. COMMON AREAS AND PARKING............................................. 4
10. SERVICES AND UTILITIES............................................... 5
11. ACCEPTANCE OF PREMISES............................................... 5
12. LANDLORD'S REPAIRS................................................... 6
13. TENANT REPAIRS AND ALTERATIONS....................................... 6
14. INSURANCE............................................................ 7
15. ASSIGNMENT AND SUBLETTING............................................ 9
16. PLATE GLASS REPAIR................................................... 9
17. BUILDING RULES....................................................... 9
18. BANKRUPTCY........................................................... 9
19. RENTAL TAXES......................................................... 9
20. EMINENT DOMAIN....................................................... 10
21. INDEMNITY............................................................ 10
22. UNTENANTABILITY...................................................... 11
23. SUBROGATION.......................................................... 11
24. DEFAULT BY TENANT.................................................... 12
25. SURRENDER OF POSSESSION.............................................. 12
26. HOLDING OVER......................................................... 12
27. REMOVAL OF FIXTURES.................................................. 13
28. ACCESS TO PREMISES................................................... 13
29. CHANGES AND ADDITIONS TO BUILDING.................................... 13
30. LOCATION OF COMMON AREAS............................................. 13
31. SUBORDINATION AND ESTOPPEL CERTIFICATE............................... 13
32. QUIET ENJOYMENT...................................................... 14
33. NOTICES.............................................................. 14
34. LANDLORD'S RIGHTS.................................................... 15
35. AMERICANS WITH DISABILITIES ACT OF 1990 AND ARIZONANS WITH
DISABILITIES ACT OF 1992............................................. 15
36. TENANT'S WARRANTY AS TO HAZARDOUS OR TOXIC MATERIALS................. 16
37. RESERVED PARKING..................................................... 16
38. SIGNAGE.............................................................. 16
39. GENERAL PROVISIONS................................................... 16
40. EXHIBIT REFERENCE.................................................... 18
41. FINANCIAL STATEMENT.................................................. 18
EXHIBIT "A"-FLOORPLAN OF PREMISES
EXHIBIT "B"-TENANT IMPROVEMENT BID
EXHIBIT "C"-OFFICE FURNITURE
EXHIBIT "D"-RESERVED PARKING GARAGE
August 10, 2006
(i)
OFFICE LEASE
THIS LEASE is made and entered into this AUGUST 11, 2006, by and between
Forty-Eight-O-One, LLC an Arizona Limited Liability Company (hereinafter
referred to as "Landlord"), and ImaRx Therapeutics, Inc. (hereinafter referred
to as "Tenant").
WITNESSETH:
For and in consideration of the covenants hereinafter mentioned, the
Landlord leases to the Tenant and the Tenant hereby leases from the Landlord,
certain premises located on the fifth floor, in that certain building known as
0000 Xxxx Xxxxxxxx Xxxx. Xxxxxx, Xxxxxx, Xxxxxx of Pima, State of Arizona, said
building with the adjoining parking area being hereinafter referred to as the
"Building";
1. DESCRIPTION OF PROPERTY. For and in consideration of the agreement of
Tenant to pay the rental and other sums herein provided for and to perform the
terms, covenants and conditions on its part herein contained, the full
performance and observance of which and all thereof being hereby agreed by
Tenant to be conditions precedent and subsequent to the covenants on the part of
the Landlord to the continuance of this Lease, Landlord hereby leases to Tenant,
and Tenant hereby hires and takes from Landlord, those certain Premises
consisting of approximately 14,659 rentable square feet, known and described as
the fifth floor at 0000 Xxxx Xxxxxxxx Xxxx. Xxxxx 000 Xxxxxx Xxxxxxx, designated
on the floor plan to be attached hereto as Exhibit "A" and made a part of this
Lease, hereinafter referred to as the "Premises". The Landlord and Tenant shall
construct the Premises in general conformance with the improvements attached
hereto as Exhibit "B".
2. TERM. This Lease is for a term of sixty (60) months commencing on the
first (1st) day of November 2006, and ending on the thirty first (31th) day of
October 2011. In the event the commencement date of this Lease does not fall on
the first day of a calendar month, then the first day of the succeeding calendar
month shall be considered the commencement of the Lease term, and the Tenant
shall pay rent on a pro-rata basis for the number of days between the actual
commencement date of the term, as defined herein, and the first day of the next
succeeding calendar month. In any event no rent shall be charged to the Tenant
prior to November 1, 2006. The Landlord and Tenant acknowledge that the Premises
even though not substantially complete prior to the commencement date, Landlord
shall permit Tenant early occupancy beginning October 15, 2006, at no additional
rent in order to commence their business operations in whatever limited capacity
that may be available to the Xxxxxxx. This early occupancy is granted strictly
as a courtesy to the Tenant with no guarantees or liabilities to the Landlord
regarding the usability or function of the Premises prior to the Commencement
Date. Tenant shall make a deposit of the first and last month's rent upon
signing of this Lease.
Notwithstanding anything to the contrary contained herein, Tenant shall
have the option at any time after the 36th month to terminate this Lease and
vacate the premises. In the event that
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Tenant desires to exercise this option for early termination, it must provide
written notice to Landlord no later than 360 days prior to the date of early
termination of this Lease. Tenant may provide notice of its exercise of such
early termination at any time after the 24th month of this Lease. In the event
that Tenant exercises this early termination option, it shall, simultaneous with
providing such notice, pay unamortized leasing commissions to Landlord per the
schedule below.
Months Unamortized
Remaining Commissions
--------- -----------
24 $32,517.12
23 $31,182.26
22 $29,847.40
21 $28,512.55
20 $27,177.69
19 $25,842.83
18 $24,507.98
17 $23,173.12
16 $21,838.26
15 $20,503.40
14 $19,168.55
13 $17,833.69
Months Unamortized
Remaining Commissions
--------- -----------
12 $16,498.83
11 $15,123.93
10 $13,749.03
9 $12,374.13
8 $10,999.22
7 $ 9,624.32
6 $ 8,249.42
5 $ 6,874.51
4 $ 5,499.61
3 $ 4,124.71
2 $ 2,749.81
1 $ 1,374.90
Subject to the following, Tenant shall have an Option to Extend the Lease
for Two (2) additional, successive terms of Three (3) years provided the
following conditions are satisfied:
A. Tenant is not, at the time of exercise or at the commencement of such
extension term(s), in default of the Lease.
B. Tenant has not assigned the Lease, sublet the Premises or changed its
use, whether approved by Landlord or not.
C. Landlord's receipt of written notice by certified mail of Tenant's
intent to exercise this Option to Extend the Lease.
D. Said notice has been received by Landlord not after the last day of
the 54th month of the Lease Term or not after the last day of the 30th
month of the first Lease extension.
E. Said Option to Extend shall not include any Rent Abatement, no Tenant
Improvement Allowance, there shall be no further Option to Extend and
all other terms and conditions shall remain the same except the Base
Rent shall be subject to renegotiation within forty five days (45) of
such time.
Notwithstanding anything to the contrary contained herein, Landlord shall grant
Tenant an option to cancel this Lease commencing on the date first above written
and expiring October 15, 2006. Tenant shall not occupy the Premises until this
option to cancel is waived or expires. In the event that Tenant exercises this
option to cancel, Landlord shall return any deposits to Tenant within ten (10)
business days.
3. BASE RENT. In consideration for the leasing of said Premises and the
Landlord's agreements hereunder, the Tenant agrees to pay the Landlord as a
minimum rent for the Premises monthly installments (Monthly Installments) as
follows:
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Months 1-12: Twenty four thousand four hundred thirty one dollars and sixty
($24,431.67) seven cents.
Months 13-24: Twenty five thousand one hundred sixty four dollars and sixty
($25,164.62) two cents.
Months 25-36: Twenty five thousand nine hundred nineteen dollars and fifty
($25,919.56) six cents.
Months 37-48: Twenty six thousand six hundred ninety seven dollars and
($26,697.14) fourteen cents.
Months 49-60: Twenty seven thousand four hundred ninety eight dollars and six
($27,498.06) cents.
4. BASE RENT ADJUSTMENT. The Base Rent shall be subject to upward revision
at the beginning of every lease year during the term of the Lease to compensate
for increases in property taxes, insurance premiums, including but not limited
to fire and other casualty insurance and public liability insurance, and
operating costs of the Building, herein collectively referred to as "Building
Costs"; the first such adjustment to be made for the one (1) year period
commencing the first day of November, 2007. The amount of the Base Rent
Adjustment payable by Tenant during the second year of this Lease and each year
thereafter shall not exceed One Hundred and Eight Percent (108%) of the amount
paid by Tenant for the prior Lease Year, excluding Property Taxes. In the event
that Landlord does not contest increases in Property Taxes, Tenant shall have
the right to contest any such increase and shall keep Landlord informed of the
steps being taken. Landlord agrees to cooperate fully with Tenant in prosecuting
any appeal taken by Tenant as a result of such increase, at no cost or expense
to Landlord. To the extent Tenant obtains any reduction as a result of such
contest and to the extent such reduction is not applied to Tenant's
Proportionate Share of responsibility for such taxes, Tenant shall have the
right to recoup from future installments of Base Rent and Base Rent Adjustment
all reasonable costs and expenses, including reasonable attorney fees, incurred
by Tenant in connection with such contest, provided the same shall not exceed
the amount of the reduction in Property Taxes resulting therefrom and further
provided and on the condition that Tenant supply documentation in reasonable
detail of such costs and expenses. Commencing November 1, 2007, Tenant shall
pay, in addition to Tenant's regular monthly rent, one-twelfth (1/12th) of
Tenant's pro-rata share of any estimated Comparison Year Building Cost increase
over the Base Year Building Costs. Certain variable expenses such as water,
electric, trash, and janitorial costs shall be allocated based on occupied
square footage or actual expenses if they can be separately determined. The
Building property taxes and insurance premiums for the calendar year and the
operating costs of the Building for the calendar year in which this Lease
commences (2006) shall be considered the "Base Year" Building Costs. Property
taxes, insurance premiums and operating costs of the Building for each
subsequent year of the lease term shall be considered "Comparison Year" Building
Costs. The Building Costs shall be based on an accrual basis and shall be
determined by taking into account all maintenance and management costs directly
attributable to the Building, including building superintendents, all labor
costs involved in the operation and maintenance of the Building, utilities
(water, sewer, natural gas, electricity), costs of
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supplies used in the Building, and all other costs which can properly be
considered expenses of operating but excluding property additions and capital
improvements, alterations for tenants, depreciation, interest, income taxes,
lease commissions, asbestos-related and/or hazardous substance abatement,
administrative costs not specifically incurred in the operation of the Building.
To determine the Tenant's share of the increase with respect to the above
expenses, if any, the Base Year operating costs shall be subtracted from the
applicable Comparison Year costs and the remainder, if positive, shall be
divided by the total Building rentable square footage. The resulting quotient
shall be multiplied by the Tenant's total rentable square footage to determine
the Tenant's share of the increase in Building Costs. Landlord shall give to
Tenant on or before the first (1st) day of the fourth (4th) month following each
Comparison Year a statement of the increase in Base Rent or other payment
payable by Tenant hereunder, but failure by Landlord to give such statement by
said date shall not constitute a waiver by Landlord of its right to require an
increase in the Base Rent or other payment.
Upon receipt of the statement for the first (1st) Comparison Year, Tenant shall
pay in full the total amount of any increase due for the first (1st) Comparison
Year in excess of the estimated Comparison Year Building Costs previously paid
to Landlord. In addition, the amount of any such increase shall be used as an
estimate of Building Costs for the then current Comparison Year and this amount
shall be divided into twelve (12) equal monthly installments and Tenant shall
pay to Landlord currently with the regular monthly rent payment next due
following the receipt of such statement, an amount equal to one (1) monthly
installment multiplied by the number of months from the first (1st) month in the
lease year in which said statement is submitted through the month of such
payment. Subsequent installments, based on the estimate for the current
Comparison Year, shall be payable concurrently with the regular monthly Base
Rent payments for the balance of that Comparison Year and shall continue until
the next Comparison Year's statement is rendered.
If the second or any succeeding Comparison Year results in a greater increase in
Building Costs, then upon receipt of a statement from Landlord, Tenant shall pay
a lump sum equal to the Tenant's share of such total increase in Building Costs
over the Base Year less the total of the monthly installments of estimated
increases paid in the previous Comparison Year, and the estimated monthly
installments to be paid for the next Comparison Year following said Comparison
Year shall be adjusted to reflect such increase.
If in any Comparison Year the Tenant's share of Building Costs is less than the
preceding Comparison Year, then upon receipt of Landlord's statement, any
overpayment made by Tenant on the monthly installment basis provided above shall
be a credit to the succeeding month's Base Rent payment or payments as the same
become due and the estimated monthly installments of Building Costs to be paid
for the next Comparison Year shall be adjusted to reflect such lower Building
Costs for the preceding Comparison Year.
Landlord's accountant shall prepare the determination of Building Costs per
square foot and/or Landlord may employ other authorized representatives as with
respect to such year and their determination shall be final and conclusive on
both parties. The space occupied by the Tenant hereunder is 14,659 rentable
square feet. Landlord shall at all times maintain accurate records of the
Building Costs. Said records shall be made available to the Tenant at the
Landlord's
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management offices for a period of no less than three (3) Comparison Years upon
ten (10) business days' prior written notification by Tenant.
5. LATE CHARGES. Tenant acknowledges that the late payment by Tenant to
Landlord of Base Rent or any Base Rent Adjustments due under this Lease will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult and impractical 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 Base Rent or any
Base Rent Adjustments due from Tenant is not received by Landlord or Landlord's
agent within ten (10) business days after notice of such amount is due, Tenant
shall pay to Landlord a late charge equal to five percent (5%) of such overdue
amount. A return check due to insufficient funds will be treated as a late
payment. The parties 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 any lease payments without any due and payable late
charge(s) shall not constitute a waiver of the late charges due or prevent the
Landlord from charging and collecting past or future late charges owed by
Xxxxxxx".
6. TENANT IMPROVEMENT ALLOWANCE. Upon all parties executing this Lease
Agreement Landlord agrees to reinstall glass doors in elevator corridor on the
fifth floor.
7. INTEREST ON PAST-DUE OBLIGATIONS. Any Base Rent or Base Rent Adjustments
due to Landlord not paid when due shall bear interest from the date due until
paid at the rate of twelve percent (12%) per annum; provided, however, that
interest shall not be payable on late charges pursuant to Paragraph 5.
8. USE OF PREMISES. Tenant shall use the Premises for general office and
related administrative functions and for no other purpose. Tenant shall not
commit, or suffer to be committed, any nuisance or other act or thing against
public policy, or which may disturb the quiet enjoyment of any other tenant of
the Building. Tenant agrees not to deface or damage the Building in any manner
or overload the floors of the Premises, it being mutually agreed that in no
event shall any weight placed upon said floors exceed fifty (50) pounds per
square foot of floor space. Tenant agrees not to use or permit the use of the
Premises or any part thereof for any purpose prohibited by law, and Tenant
agrees, at its sole expense, to comply with and conform to all of the
requirements of all governmental authorities having jurisdiction thereof,
present or future, relating in any way to the condition, use and occupancy of
the Premises throughout the entire term of this Lease. 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 Tenant shall pay the increased cost of such insurance on the
Building 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 and the Building relative to
the Tenant and/or its agents, employees or invitees.
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9. COMMON AREAS AND PARKING. The common area portions of the Building shall
be for the joint use of all tenants in the Building, their, patients, customers,
invitees and employees, and the Landlord hereby grants to Tenant, and its,
patients, customers, invitees and employees, the non-exclusive right of use of
all of the common. It is understood that the employees of Tenant and the other
tenants of Landlord within the Building and employees of other owners of the
Building shall not be permitted to park their automobiles in the automobile
parking area, which may from time to time be designated for patrons of the
Building. The Landlord agrees to furnish and/or cause to be furnished either
within the Building parking area, or reasonably close thereto, space for
employee parking including forty-five (45) covered reserved parking spaces and
twenty five (25) uncovered unreserved parking spaces in reasonably close
proximity to the Premises. Landlord at all times shall have the right to
designate the particular parking areas to be used by any or all of said
employees and any such designation may be changed from time to time.
10. SERVICES AND UTILITIES. Landlord agrees to furnish the Premises during
reasonable office hours, 6:00 a.m. to 6:00 p.m. Monday through Friday, and 8:00
a.m. to 12:00 PM on Saturday, while Tenant is not in default under any of the
provisions of this Lease and subject to the regulations of the Building wherein
the Premises are situated, with: heat and air conditioning during normal
business hours, normal water and electric current for lighting and ordinary
business appliances, such as computers, and such other appliances and equipment
that do not result in an overload in the electrical system, and Tenant agrees to
pay for all other services supplied to said Premises not hereinbefore in this
Paragraph enumerated. In the event Tenant should consistently require
electricity in excess of normal business hours, Tenant shall reimburse Landlord
for such excessive electricity usage at the rate of Landlord's estimated hourly
cost. Landlord may install such energy conservation devices, as Landlord deems
necessary including, without limitation, thermostat cover locks and air
conditioning timers. Landlord, however, shall not be liable for failure to
furnish any of the services specified in this Paragraph when such failure is
caused by conditions beyond the control of Landlord, Landlord's contractors,
agents, employees, servants, or invitees, or by accidents, repairs or strikes,
nor shall such failure constitute an eviction; nor shall Landlord be liable
except in the event of Landlord's, Landlord's contractors, agents, employees,
servants, or invitees negligence for loss of or injury to property, however
occurring, through or in connection with or incidental to the furnishing of any
of the foregoing. Tenant will not, without the written consent of Landlord, use
any apparatus or device in the Premises, including without limitation electronic
data processing machines, punch card machines and using current in excess of 110
volts (note-the electrical service within the building can accommodate 480
volts/277-three phase service.) which will increase the amount of electricity or
water usually furnished or supplied for use of the Premises as general office
space. If Tenant shall require water or electric current in excess of that
usually furnished for use of the Premises as general medical office space,
Tenant shall first procure the consent of Landlord to the use thereof and
Landlord may cause a water meter or electric current meter to be installed in
the Premises so as to measure the amount of water and electric current consumed
for any such other use. The cost of such meters and installation, maintenance,
and repair thereof shall be paid for by Tenant and Tenant agrees to pay Landlord
promptly upon demand by Landlord for all such water and electric current
consumed as shown by said meters, at the rates charged for such services by the
City of Tucson or the local public utility, as the case may be, furnishing the
same, plus any additional expense incurred in keeping account of the water and
electric current consumed.
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11. ACCEPTANCE OF PREMISES. Subject to the substantial completion (Tenant's
receipt of a Certificate of Occupancy from the City of Tucson) of the agreed to
improvements in a first class manner as set forth in Exhibit "B" attached
hereto. Tenant accepts said Premises and acknowledges that they will be
delivered to Tenant in good and tenantable condition. At the expiration or
sooner termination of this Lease, Tenant shall deliver the Premises to Landlord
in a broom clean condition with no damage to the interior of the premises other
than reasonable wear and tear.
12. LANDLORD'S REPAIRS. Landlord agrees to keep the following portions of
the Building in good condition and repair: exterior walls, but not including
wall coverings on the interior thereof; roof, but not including the ceiling in
the Premises if damaged by Tenant, Tenant's contractors, agents, employees,
servants or invitees. Landlord's obligation hereunder shall not apply to repairs
caused by Tenant or Tenant's customers, agents, employees, or invitees,
including Tenant alterations and damage related thereto or caused thereby.
Landlord shall also furnish the Premises with janitorial services Monday through
Friday. Any specialized janitorial requirements of Tenant will be the
responsibility of Tenant. Landlord shall repair and maintain the structural
portions of the Building, including the basic plumbing, air conditioning,
heating and electrical systems, installed or furnished by Landlord, unless such
maintenance and repairs are caused by the act, neglect, fault or omission of any
duty by the Tenant, its agents, servants, employees or invitees, in which case
Tenant shall pay to Landlord the reasonable cost of such maintenance and
repairs. Landlord shall not be liable for any failure to make any repairs for
which it is responsible or to perform any maintenance for which it is obligated
unless such failure shall persist for ten (10) business days after receipt of
written notice of the need of such repairs or maintenance is given to Landlord
by Tenant. If such repairs cannot be made within the ten (10) business day
period, this period shall be extended provided that Landlord commences to cure
such repairs within such ten (10) business day period and proceeds diligently
thereafter to effect such repair. There shall be no abatement of rent and no
liability of Landlord by reason of injury to or interference with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Premises or in or to fixtures,
appurtenances and equipment therein, unless the repairs persist beyond the time
stated above. Except for acts of negligence by Landlord, its agents, or
employees, Landlord shall not be responsible or liable to Tenant for any injury
or damage from acts or omissions of persons occupying the property adjoining the
Premises or any part of the Building of which the Premises is a part, or for any
injury or damage resulting to the Tenant, or its property, from bursting,
stoppage, or leaking of water, gas, sewer, or steam pipes, or from any
structural defects in the roof, exterior walls or the like.
13. TENANT'S REPAIRS AND ALTERATIONS. Tenant shall at all times throughout
the Lease term, at its sole cost and expense, keep the interior of the Premises
(including the interior walls, non-structural portions of the Premises, interior
doors and windows, floor coverings, xxxxx, door closures, moldings, trim of all
doors and windows), door surfaces, in good order, condition and repair, subject
to ordinary wear and tear. Without limiting the generalities thereof, if any
loss or damage occurs to the Premises as a result of any direct or indirect act
of Tenant, its employees, agents, servants or invitees, Tenant shall, at its
expense, replace all broken glass in the Premises; keep all electrical fixtures
clean and in a good state of repair and make any necessary repairs or
replacements within ten (10) business days after written demand by Landlord.
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If the Tenant fails to make the necessary repairs or replacements, the Landlord
may have the necessary work done and the Tenant shall pay to the Landlord the
cost thereof plus twelve percent (12%) for overhead and supervision. Said amount
shall be payable in full within fifteen (15) days after Tenant receives a
statement from the Landlord, and any unpaid portion thereof shall bear interest
at the rate of twelve percent (12%) per annum from the date of said statement.
Tenant may make no alterations, improvements, additions, or utility
installations in, on or about the Premises costing in excess of Five Thousand
and No/100 Dollars ($5,000.00), including the office layout, location of
fixtures and general decor, without Landlord's prior written consent, which
consent may be conditioned upon such bonds, other assurances or completion as
Landlord may reasonably require. Tenant shall give Landlord not less than ten
(10) business days notice prior to the commencement of any work in the Premises.
The term "utility installations" shall include bus ducting, power panels,
fluorescent fixtures, space heaters, conduits and wiring. Tenant agrees not to
permit any liens to stand against the Premises for work done or materials
furnished in connection with such alterations or improvements and Landlord may
post notice of non-responsibility on the Premises. Any such mechanic or
materialmen's liens against the Premises shall be a breach of this Lease by
Tenant. Landlord may require Tenant to provide Landlord, at Tenant's sole cost
and expense, a lien and completion bond in an amount equal to one and one-half
(1.5) times the estimated cost of such improvements, to insure Landlord against
any liability for mechanics' and materialmen's liens and to insure completion of
the work.
All interior construction by the Tenant, including original installations of
trade fixtures and other tenant improvements and remodeling and repair, shall
not be commenced until Landlord has consented thereto in writing. The term
"interior construction" as used herein shall include construction and
installation of any kind in the interior of the Premises, except movable
furniture and furnishings.
Unless Landlord requires their removal, all alterations, improvements, additions
and utility installations (whether or not such utility installations constitute
trade fixtures of Tenant) which may be made on the Premises shall become the
property of Landlord and remain upon and be surrendered with the Premises at the
expiration of the term. Notwithstanding the provisions of this Paragraph,
Tenant's machinery and equipment other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises,
shall remain the property of Tenant and may be removed by Tenant subject to the
provisions of this Paragraph.
14. INSURANCE. Tenant's Insurance Requirement. Tenant shall purchase and
maintain, at its sole cost and expense, during the term of this Lease and any
extension thereof, comprehensive general liability insurance coverage, on an
occurrence basis, in an amount not less than One Million and No/100 Dollars
($1,000,000) combined single limit for personal injury, bodily injury and/or
death, sickness, disease of any person and property damage or destruction
(including loss of use thereof). Said liability insurance shall cover Tenant,
its agents, employees, independent contractors and customers use of the Premises
or any subsequent use of any other property facilities or means of access owned
or controlled by the Landlord at the Premises, or the Building. Tenant shall
cause the required liability insurance to include: the Landlord, Owner (if the
Owner is other than the Landlord) and Property Manager as additional insured
with respect to all coverages required under this Paragraph as to the extent of
the indemnification set forth in
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Paragraph 21; blanket or specific contractual liability endorsement, which shall
provide coverage for the indemnification clause contained in this Lease under
Paragraph 21 and a severability of interest clause, which shall apply to both
the primary liability policy and any excess liability policy, in the event that
the required coverage is arranged through the use of multiple policies. Tenant
shall promptly reimburse Landlord for any increase in Landlord's premium caused
by Tenant's activities and as established by a letter from the Landlord's
insurance carrier setting forth the reason for the premium increase and the
additional premium arising from Tenant's activities.
Prior to the commencement of any work, whether construction, remodeling, or
repair, in or about the Premises, Tenant shall cause each of the Tenant's
subcontractors to obtain insurance with limits and specifications as provided
herein.
Tenant shall purchase and maintain, at its sole cost and expense, during the
term of this Lease and any extension thereof, Property insurance for the
Premises, which shall include coverage for all Tenant's personal property and
all Tenant's improvements and betterments, permanently installed/attached to the
Building, in an amount not less than the actual replacement cost of such
property. The required building coverage shall consist of: all risk coverage or
its equivalent including business interruption or loss of income therefrom and
which may exclude the perils of earthquake and flood; shall contain a
replacement cost endorsement; shall contain a loss payee clause to the benefit
of the Landlord as respects its interest in the Tenant improvements and
betterments.
Tenant shall, as a condition of this Lease, deliver Certificates of Insurance to
the Landlord, evidencing the insurance coverages as required under this
Paragraph no later than ten (10) business days prior to occupancy and ten (10)
business days prior to the expiration of any policy, as evidenced by any
Certificate of Insurance. All insurance policies required herein shall state
that the coverages provided shall not be canceled prior to the Landlord
receiving ten (10) business days written notice of the cancellation. Landlord
may, at its option, require, and Tenant agrees to provide, true and certified
copies of any insurance policy maintained by the Tenant to satisfy the
requirements of this Paragraph. Tenant shall deliver, or cause to be delivered,
the described copies within twenty (20) business days from the written request
of the Landlord.
Tenant shall cause the placement and purchase of all insurance coverages
required under this Paragraph with insurance carriers authorized and licensed to
do business in Arizona. Said insurance carriers shall have a minimum rating of
"A" as established by the most current edition of "Bests Key Rating Guide".
Landlord, upon Tenant's prior written request, shall within ten (10) business
days of receipt of such request provide Tenant with a copy of the Landlord's
certificate of "Proof of Insurance" for the Building.
15. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned nor the
Premises sublet in whole or in part without the express written consent of
Landlord, which consent shall not be unreasonably withheld, The Tenant shall not
have nor allow any concessionaries or licensees on the Premises without the
written consent of the Landlord.
August 10, 2006 Landlord JCO Tenant GC
9
16. PLATE GLASS REPAIR. The Tenant shall be responsible for and shall, at
Tenant's sole cost and expense, replace any cracked or broken glass, including
plate glass or other breakable materials used in structural portions and in
windows and doors of the Premises occurring as a result of any act of negligence
in whole or in part by Tenant, its agents, servants, employees, or invitees.
Tenant shall be responsible for the maintenance of and for any damage caused by
Tenant's machinery or equipment on the Premises.
17. BUILDING RULES. The Tenant hereby promises and agrees to keep and
perform each and all of the rules and regulations of said Building attached
hereto as Exhibit "C" and incorporated herein by this reference. The Landlord
shall have the right to amend said rules and to make other and different
reasonable rules and regulations limiting, restricting and regulating the
privileges of tenants in said Building, only after receiving Tenants written
approval, which shall not be unreasonably withheld. Tenant shall not
unreasonably withhold their approval. All such rules and regulations so made by
the Landlord, after notice thereof to the Tenant, shall be binding upon the
Tenant and become conditions of the Tenant's tenancy and covenants on the part
of and to be performed by the Tenant.
18. BANKRUPTCY. If at any time during the term of this Lease in any
judicial action or proceeding in any court against Tenant or any of the Tenant's
heirs or assigns, a receiver or other officer or agent be appointed to take
charge of said Premises or the business conducted therein, and shall be in
possession thereof, or if this Lease or the interest or estate created thereby
vest in any other person or persons by operation of law or otherwise, except by
consent, as aforesaid, of Landlord, or in the event of any action taken by or
against Tenant under the Federal Bankruptcy Laws or other applicable statutes of
the United States, or any State, or if Tenant shall make an assignment for the
benefit of creditors, or if an attachment or execution is levied upon the
Tenant's property or interest under this Lease, the occurrence of any such event
shall be deemed to be a breach of this Lease by Tenant, and Landlord shall have
the rights herein provided in the event of any such breach, including the right
at Landlord's option to terminate this Lease immediately and enter said Premises
and remove all persons and property therefrom.
19. RENTAL TAXES. In addition to the rent payable by the Tenant under the
terms of this Lease, the Tenant shall pay to the landlord an amount equal to the
excise, transaction, sales or privilege tax (except income tax) now or hereafter
levied or imposed upon the Landlord by any government or governmental agency on
account of, attributed to or measured by the rentals, including Base Rent, Base
Rent Adjustments, or other charges or prorations paid by the Tenant hereunder.
Said tax amounts shall be payable to Landlord together with each payment of rent
hereunder.
20. EMINENT DOMAIN. In the event all of the Premises shall be taken by
direct or inverse condemnation or eminent domain proceedings, then this Lease
shall thereupon terminate as of the date of vesting of title in such proceedings
and the parties hereto shall have no claim against each other and the Tenant
shall have no claim against the condemning authority for the value of any
unexpired term of this Lease. Tenant shall, however, have the right to claim
from the condemning authority, but not from the Landlord, such compensation as
may be separately awarded to Tenant on account of damage to Tenant's business
and the cost of removing such business and Tenant's merchandise, furniture and
equipment to a new location.
August 10, 2006 Landlord JCO Tenant GC
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In the event condemnation as aforesaid results in a partial taking of the
Premises, which renders such Premises unsuitable for the business of the Tenant,
then this Lease shall terminate in the same manner set forth for total
condemnation. In the event that such partial condemnation does not render the
Premises unsuitable, the Landlord shall restore the Premises to a condition as
closely comparable to its former condition as possible and this Lease shall
continue in effect without any reduction or abatement of rent.
21. INDEMNITY. Tenant agrees to indemnify and save Landlord, Owner (if
Owner is other than the Landlord), and Property Manager harmless against any and
all claims, demands, costs, damages, and/or expenses, including attorney's fees
for the defense thereof, and court costs in connection therewith arising from
the conduct or management of the business conducted by Tenant in the Premises or
from any breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed pursuant to the
terms of this Lease, or from any act or negligence of Tenant, its agents,
invitees, contractors, servants, employees, sublessees, concessionaires, or
licensees in or about the Premises, the parking areas and common sidewalks, and
the loading platform area, if any, allocated to the use of Tenant. In case of
any action or proceeding brought against Landlord, Landlord's contractors,
agents, employees, servants, or invitees, Owner (if Owner is other than the
Landlord), and Property Manager by reason of any such claim, upon notice from
Landlord, Owner (if Owner is other than Landlord), and/or Property Manager,
Tenant covenants to defend such action or proceeding by counsel, at Tenant's
expense. Tenant agrees to pay and discharge any mechanic's, materialmen's and/or
any other lien against the Premises or Landlord's and/or the Owner's (if Owner
is other than the Landlord) interest therein claimed in respect to any labor,
services, materials, supplies or equipment furnished or alleged to have been
furnished to or upon the request of Tenant, except for tenant improvements for
which Landlord is responsible, provided that Tenant may contest such lien claim,
upon furnishing to Landlord and/or Owner (if Owner is other than Landlord) such
indemnification for the payment and discharge thereof, together with the costs
and expenses of defending the same, as Landlord may require. Landlord, Owner (if
Owner is other than Landlord), and Property Manager shall not be liable except
for the negligence of Landlord, Landlord's contractors, agents, employees,
servants, or invitees, Owner (if Owner is other than Landlord), and Property
Manager, its agents, or employees, and Tenant waives all claims resulting from
the disrepair of any equipment or appurtenances thereunto appertaining, or
resulting from the acts or omissions of persons occupying adjoining Premises or
any part of the Building of which the Premises are a part or any persons
transacting any business in the Building or present therein for any other
purpose, or for loss or damage resulting to Tenant or its property from burst,
stopped or leaking water, gas, sewer or other pipes or conduits or plumbing
fixtures, or from any failure of or defect in any electric line, circuit or
facility, or resulting from any accident in or about the Premises, the Building
in which the same are situated or resulting directly or indirectly from any act
of neglect of any other tenant or person in said Building. Landlord agrees to
mutually indemnify and hold Tenant harmless.
22. UNTENANTABILITY. In the event the Premises are damaged or destroyed by
fire, or the elements, or any other casualty so that they are unusable by the
Tenant, the Landlord shall within forty-five (45) days thereafter make an
election to either construct or repair the Premises or may terminate this Lease.
The Landlord shall give written notice to the Tenant as to
August 10, 2006 Landlord JCO Tenant GC
11
this election. In the event of the termination of this Lease pursuant to this
Paragraph, rents shall be proportioned on a per diem basis and shall be paid in
full to the date of the fire or other casualty. In the event the Landlord
restores and repairs the Premises, then the rent payable by the Tenant shall be
abated for the number of days in which the Tenant is prevented from operating
his business because of such damage or destruction. In the event the Premises
are partly damaged or destroyed by casualty, but are still usable by the Tenant,
the Landlord shall cause such damage to be repaired and the minimum rent payable
by Tenant shall be proportionately abated during the period of construction. In
the event fifty (50%) or more of the rentable area of the entire Building shall
be damaged or destroyed by any casualty, regardless of whether the demised
Premises described herein are affected by such casualty, the Landlord may, at
its option, terminate this Lease by giving the Tenant sixty (60) days prior
written notice, and further provided that said notice is delivered to Tenant
within thirty (30) days following the date of such casualty. Rent shall then be
adjusted to the date of termination, unless the Premises are unusable by Tenant
as a result of the casualty, in which event rent shall be adjusted to the date
of casualty. In the event the Premises are damaged or destroyed by fire or any
other casualty caused by the negligence of Tenant or Tenant's agents, employees,
or invitees, Landlord shall, in addition to all other rights and causes of
action available to Landlord at law or in equity and all rights under the Lease,
have the right to terminate the Lease and/or exercise any other remedy available
to Landlord hereunder in the event of Tenant's default.
23. SUBROGATION. The parties hereto agree to use their best efforts to have
any and all fire, extended coverage or any and all material damage insurance
which may be carried endorsed with the following subrogation clause: "This
insurance shall not be invalidated should the insured waive in writing prior to
a loss, any or all right of recovery against any party for loss occurring to the
property described herein;" and each party hereto hereby waives all claims for
recovery from the other party for any loss or damage to any of its property
insured under valid and collectable insurance policies to the extent of any
recovery collectable under such insurance, subject to the limitation that this
waiver shall apply only when it is either permitted or by the use of such best
efforts could have been so permitted by the applicable policy of insurance. The
foregoing notwithstanding, this Paragraph shall have no effect upon and shall
not nullify the waivers set forth in Paragraph 21 hereof.
24. DEFAULT BY TENANT. The Tenant agrees with the Landlord that upon the
nonpayment of the whole or any part of the Base Rent or Adjusted Base Rent at
the time when the same is hereby promised to be paid by the Tenant, the Landlord
may, at the Landlord's election, either distrain for said rent due or declare
this Lease at an end and recover possession of said Premises as though the same
were held by forcible detainer; and further, that in the event of the breach of
any of the terms, covenants or agreements herein contained and by the Tenant to
be kept and performed, the Landlord may declare this Lease at an end and become
entitled to the immediate possession of said Premises and recover such damages
as the Landlord may have sustained, or the Landlord may treat this Lease as
continuing and take, have and recover any damage it may have sustained by reason
of such breach; provided, however, that Landlord will not declare this Lease
terminated without first giving Tenant the full period often (10) business days
from and after the giving of such notice within which to remedy the same or in
good faith commence the remedying thereof and thereafter diligently proceed
therewith, to completion within thirty (30) business days of commencement of
remedial effort; except that as to the
August 10, 2006 Landlord JCO Tenant GC
12
payment of rent, Landlord shall only be obligated to give Tenant ten (10)
business days notice, the ten (10) business days notice to commence upon
Tenant's receipt of such notice. The failure of the Landlord to avail itself of
any of its rights hereunder upon default by the Tenant or the acceptance of any
delinquent payments after default shall not constitute a waiver or be construed
to be an acquiescence therein or prejudice any rights of the Landlord to insist
upon strict future performance of the terms of this Lease; nor shall any notice
of the intention of the Landlord to insist upon strict future performance be
required. In the event of Tenant's failure to pay rent or any other breach by
Tenant hereunder, the Landlord may relet the Premises after taking possession,
and the Tenant shall be responsible to the Landlord for any deficiency. The
rights and remedies given to the Landlord hereunder shall be cumulative and
shall be in addition to, and not in lieu of, any right or remedy as provided by
law. In the event that Landlord or Tenant commences a lawsuit to enforce payment
hereunder or to enforce or recover under any of the terms and conditions of this
Lease, and in the further event that either party prevails in such lawsuit, or
in the event that either party engages an attorney because of any default or
violation of the Tenant o Landlord hereunder, then the losing party agrees to
pay for all attorney's fees and costs incurred by the prevailing party in
connection with such default or violation of the losing party.
25. SURRENDER OF POSSESSION. At the expiration of the tenancy created
hereunder, whether by lapse of time or otherwise, Tenant shall surrender the
Premises to the Landlord in good condition and repair.
26. HOLDING OVER. Provided Tenant is not in default and has Landlord's
written consent, the Tenant shall have the right to hold over following the
expiration of the initial lease term at a rental equal to the last month's Base
Rent and Base Rent Adjustment. If without Landlord's consent, the Tenant or any
other person claiming for, through or under the Tenant holds the Premises for
any time after they should have been surrendered under the provisions of this
Lease, the Tenant shall be deemed guilty of unlawful detainer of the Premises,
and shall be subject to eviction and removal with or without process of law;
provided, however, if the holding over is with Landlord's consent, such holding
over shall be from month to month and Tenant shall pay as rent One Hundred
Twenty Five Percent (125%) times the Base Rental plus the applicable Base Rental
Adjustments, if any.
27. REMOVAL OF FIXTURES. Except as provided in Paragraph 12 hereof, at the
expiration of the term of this Lease, Tenant may remove from the Premises any
trade fixtures installed therein by the Tenant, and upon expiration of the term
hereof, all such trade fixtures shall be removed from the Premises not later
than the time when, under the provisions hereof, the Tenant is required to
surrender possession of the Premises to the Landlord; provided, however, that
the Tenant shall have no right to remove its trade fixtures as aforesaid if it
be in default hereunder. The removal of such trade fixtures shall be effected
solely at the cost and expense of the Tenant and in such manner as will not
injure or damage the Premises, and as approved by the Landlord. In case of such
injury or damage, the Tenant covenants and agrees, at the Tenant's own cost and
expense, to repair the same immediately. Tenant shall have the right during the
term of this Lease to replace its trade fixtures with fixtures of equal or
greater cost and quality, after receiving written consent from the Landlord.
August 10, 2006 Landlord JCO Tenant GC
13
28. ACCESS TO PREMISES. Tenant shall have the right to access the Premises
at all hours during the term of this Lease. Landlord shall have the right to
enter upon the Premises at all hours with reasonable notice during the term
hereof for the purpose of inspecting the same and/or of making repairs,
additions or alterations thereto and/or to the Building in which the same are
located and/or during the last ninety (90) days of the initial lease term or any
renewals thereof to exhibit the Premises to prospective tenants, purchasers or
others and/or for the purpose of serving or posting, and keeping posted thereon,
notices which Landlord may deem to be for the protection of Landlord and/or the
Premises. Landlord shall not be liable to Tenant in any manner for any expense,
loss or damage by reason thereof, nor shall the exercise of such right be deemed
an eviction or disturbance of Tenant's use or possession.
29. CHANGES AND ADDITIONS TO BUILDING. Landlord hereby reserves the right
at any time to make alterations or additions to and to build additional stories
on the Building in which the Premises are contained and to build adjoining the
same; and to construct other buildings or improvements from time to time; and to
make alterations thereof or additions thereto; and to build additional stories
on any such building or buildings, providing that such changes or additions
shall not substantially impede access to the Premises.
30. INTENTIONALLY DELETED.
31. LOCATION OF COMMON AREAS. Landlord reserves the right at any time to
relocate the designated or reserved parking areas and may reconfigure or
redesign the common areas of the Building. Notwithstanding anything to the
contrary contained herein, Landlord shall not make any changes or additions to
the Building that would result in the Building have insufficient parking
capacity to meet the development standards, building codes or health and safety
regulations as adopted and then in force by the City of Tucson.
32. SUBORDINATION AND ESTOPPEL CERTIFICATE. Tenant agrees that this Lease
shall be subordinate to any mortgages or trust deeds that may hereafter be
placed upon the Building or any part thereof, and to any and all advances to be
made thereunder, and to the interest thereon, and all renewals, replacements and
extensions thereof. The Tenant covenants and agrees to execute and deliver upon
demand such further instrument or instruments subordinating this Lease to the
lien of any such mortgage or deed of trust (but containing a non-disturbance
clause) as shall be desired by the Landlord and/or any mortgagees or trustees.
Any such document shall contain terms indicating the non-disturbance of Tenant
in connection therewith. Tenant consents to the assignment or pledging of this
Lease by Landlord as security for the payment of any loans that Landlord may
have or shall obtain for the purpose of improving and/or repairing the said
improvements of which the Premises are a part, or for constructing other
improvements on said Premises.
Tenant further agrees at any time, upon not less than ten (10) days prior
written request by Landlord, to execute, acknowledge and deliver to Landlord a
statement in writing certifying that this Lease is unmodified and is in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified, and the date to which the rental and other charges
have been paid in advance, if any, it being intended that any such statement may
be relied upon by
August 10, 2006 Landlord JCO Tenant GC
14
any prospective purchasers of the Premises, or any holder or assignee of a
mortgage or deed of trust encumbering the Premises.
32. QUIET ENJOYMENT. Tenant, upon paying the rent and performing the
covenants hereunder, shall and may peaceably and quietly have, hold and enjoy
the Premises for the term of this Lease, and any extensions or renewals thereof.
33. NOTICES. Any notices or demands required to be given to the Landlord
hereunder shall be in writing and shall be delivered personally or by an express
delivery service, or deposited in the United States mail sent certified, return
receipt requested, addressed to the Landlord at:
Forty-Eight-O-One LLC
C/O Vinikoor Commercial Realty LLC
0000 X. Xxxxxxx Xxxxx Xxxxx 000
Xxxxxx Xxxxxxx 00000
or such other place or places as the Landlord may designate in writing. Any
notices or demands required to be given to the Tenant hereunder shall be in
writing and shall be delivered personally or by an express delivery service, or
deposited in the United States mail sent certified, return receipt requested,
addressed to the Tenant at:
ImaRx Therapeutics, Inc.
0000 X. 00xx Xx.
Xxxxxx, XX 00000
or such other place or places as the Tenant may designate in writing.
Notice sent in compliance with this Paragraph shall be deemed given and received
on the date it is delivered to the other party if sent by an express delivery
service or certified mail, return receipt requested.
34. LANDLORD'S RIGHTS. The Landlord may exercise the following rights
without Tenant's consent and without affecting the Tenant's other obligations
hereunder:
a. To change the name or street address of the Building;
b. To install and maintain a sign or signs on the exterior of the
Building;
c. During the last six (6) months of the term or any part thereof,
if Tenant has vacated the Premises, to decorate, remodel, repair,
alter or otherwise prepare said Premises for occupancy;
d. To retain at all times pass keys to the Premises;
August 10, 2006 Landlord JCO Tenant GC
15
e. To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building not in conflict with the
particular business being operated by the Tenant and not in
conflict the Tenant's right of quiet enjoyment of the Premises.
Such conflicts shall be strictly construed.
f. To exhibit the Premises to others and to display "For Rent" signs
on the Premises during the last ninety (90) days of the initial
lease term or any renewals thereof;
g. To approve the weight, size and location of safes or other heavy
equipment or articles, which articles may be moved in, about, or
out of the Building or Premises only at such times and in such
manner as Landlord shall direct and in all events, however, at
Tenant's sole risk and responsibility;
h. To take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the
Premises or to the Building as may be necessary or desirable for
the safety, protection or preservation of the Premises or the
Building or the Landlord's interests, or as may be necessary or
desirable in the operation of the Building.
35. AMERICANS WITH DISABILITIES ACT OF 1990 AND ARIZONANS WITH DISABILITIES
ACT OF 1992. Landlord represents that, to the best of its knowledge, as of the
date of Tenant's possession, the Premises shall be in compliance with all of the
then applicable Americans with Disabilities Act and Arizonans with Disabilities
Act legal requirements. Tenant agrees to assume sole responsibility for
conforming its accommodations and facilities, with respect to its (i) furniture,
fixtures and equipment and (ii) services, to the requirements of the Americans
with Disabilities Act of 1990 and Arizonans with Disabilities Act of 1992 and
further covenants not to discriminate against disabled persons on the basis of
disability in the full and equal enjoyment of goods, services, facilities,
privileges, advantages or accommodations. Tenant shall hold Landlord harmless
and indemnify Landlord from any and all consequences, including, without
limitation, all judgments, claims, costs, liability, damages, expenses,
attorney's fees and consultant's fees in defending any claims or alleged
violations resulting from Tenant's violation of the Americans with Disabilities
Act of 1990 and Arizonans with Disabilities Act of 1992, whether such violation
is unintentional or intentional.
36. TENANT'S WARRANTY AS TO HAZARDOUS OR TOXIC MATERIALS. Landlord
represents that to the best of its knowledge, that prior to the lease
commencement, the Premises are free of any Hazardous Substances. Tenant hereby
agrees that all of its (and its agents', employees' or contractors') operation
or activities upon, and their use and occupancy of, the Premises throughout the
term of this Lease shall be in compliance at all times with all applicable laws
then governing or in any way relating to the generation, handling, use, release
or spillage of Hazardous Substances. Tenant agrees that it will not (and it will
take all reasonable steps necessary to assure that its employees, agents,
invitees and licensees do not) violate applicable law, maintain, carry, spill,
release, discharge or dispose of any Hazardous Substances in, on, onto or into
the Premises. Tenant shall defend, indemnify and hold Landlord harmless from and
against all direct or indirect costs, claims, obligations, liability and damages
as a result of Tenant's breach of the foregoing provision, including, without
limitation, any consultant's or
August 10, 2006 Landlord JCO Tenant GC
16
attorney's fees incurred in the investigation or defense of any claim against
Landlord. Landlord may, but shall not be obligated to, duly clean up and dispose
of such substances or any tanks or storage facilities and repair any damages
resulting therefrom at the sole cost of the Tenant. Any violation by Tenant of
this Paragraph is a default under the Lease. This warranty and indemnity shall
survive any termination, cancellation, surrender or expiration of this Lease.
37. RESERVED PARKING. The Landlord will furnish and/or cause to be
furnished to Tenant within the Building parking areas, at no additional expense
to Tenant, Forty-five (45) covered reserved parking spaces on the lower level of
the Parking Garage and twenty-five (25) uncovered reserved parking spaces on the
upper level of the Parking Garage during the term of the Lease, to be
specifically identified prior to lease commencement by mutual execution of an
"Exhibit D-Parking Garage." Said reserved spaces shall be as contiguous as
reasonably possible and as close to the northern building lobby entrance as
reasonably possible.
38. SIGNAGE. Tenant shall provide to Landlord a design and specifications
for Tenant's identification signage in conformance with both the City of Tucson
Sign Code and the Building Standard Sign Criteria. Landlord shall grant TENANT A
PRO-RATA SHARE, EQUIVALENT TO APPROXIMATELY ONE SIXTH (1/6) OF THE OVERALL
SIGNAGE RIGHTS AVAILABLE ON THE EXTERIOR OF THE BUILDING, SUCH THAT TENANT SHALL
RECEIVE 1/2 SIGNAGE RIGHTS ON THE BUILDING FACADE FOR THE WEST-FACING EXTERIOR
OF THE BUILDING. ALL SIGNAGE SHALL BE MUTUALLY ACCEPTABLE TO LANDLORD AND TENANT
AND SHALL BE CONSISTENT WITH THE LANDLORD'S SIGNAGE CRITERIA DEVELOPED BY
LANDLORD IN COMPLIANCE WITH THE CITY OF TUCSON SIGN CODE. Landlord shall also
grant Tenant interior directory, suite entrance, (elevator if available) and
monument sign (if available). Landlord reserves the right to approve such
signage based on its sole discretion. Upon approval Landlord shall provide
written acceptance of the design and specifications. Upon termination of said
lease Tenant shall remove said signage.
39. GENERAL PROVISIONS.
a. Nothing herein contained shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method or computation of
rent nor any other provision contained herein, nor any acts of the parties
hereto, shall be deemed to create any relationship between parties hereto other
than the relationship of Landlord and Tenant. Whenever herein the singular
number is used, the same shall include the plural, and the masculine gender
shall include the feminine and neuter genders. If "Tenant" consists of more than
one person, the obligations of "Tenant" shall be the joint and several
obligations of such persons. If "Landlord" consists of more than one person, the
obligations of "Landlord" shall be the joint and several obligations of such
persons.
b. The various rights and remedies herein contained and reserved to
each of the parties shall not be considered as exclusive of any other right or
remedy of such party, but shall be construed as cumulative and shall be in
addition to every other remedy now or hereafter existing at law, in equity, or
by statute. No delay or omission of the right to exercise any power by either
party shall impair any such right or power, or shall be construed as a waiver of
any default or as acquiescence therein. One or more waivers of any covenant,
term or condition of this Lease by
August 10, 2006 Landlord JCO Tenant GC
17
either party shall not be or be deemed to be a waiver of a subsequent breach of
the same or any other covenant, term or condition. The consent or approval by
either party to or of any act by the other party of a nature requiring consent
or approval shall not be deemed to waive or render unnecessary consent to
approval of any subsequent similar act.
c. The laws of the State of Arizona shall govern the validity,
performance and enforcement of this Lease.
d. The headings of the several paragraphs and sections contained
herein are for convenience only and do not define, limit or construe the
contents of such paragraphs and sections. All negotiations, considerations,
representations and understandings between the parties are incorporated and
expressly stated herein and may be modified or altered only by agreement in
writing between the parties.
e. The covenants, agreements and obligations herein contained, and
each of them, shall extend to, bind and inure to the benefit of, as the case may
require, not only the parties hereto, but as well, their respective personal
representatives, successors and assigns, subject at all times nevertheless to
assignment or other transfer of the Tenant's interest herein.
f. In the event that, during the term of this Lease, the Landlord
shall sell its interests in the Premises, then from and after the effective date
of such sale, Landlord shall be released and discharged from any and all further
obligations and responsibilities under this Lease except those already accrued.
g. This Lease shall not be recorded without the consent of both
parties. A Memorandum of Lease may be recorded at Landlord's election in a form
satisfactory to both Landlord and Tenant.
h. The Landlord may install lines, walkways, drainage ways, landscape
and planter island, lighting facilities, parking striping, directional signs,
common purpose signs, loading docks, and other facilities which are and shall be
generally beneficial to the Building and Landlord may, if deemed necessary by
Landlord, even install some or all of the said facilities underground,
notwithstanding the fact that there shall be some temporary disruption within
the common areas, and a temporary impairment to the Tenant's business. The
interpretation of this Paragraph shall be broad and non-restrictive and a great
deal of latitude shall be given to the Landlord.
i. Any provision of this Lease which is prohibited, unenforceable, or
not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective as to the extent of such prohibition, unenforceabilility or
non-invalidation without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
40. EXHIBIT REFERENCE. The attached plan depicting the Premises attached
hereto as Exhibit "A" is not drawn to exact scale and dimension, but is set
forth to reasonably indicate
August 10, 2006 Landlord JCO Tenant GC
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the approximate location of the Building and common areas; and that the Landlord
may redesign and shift the common areas, access in and out, and the like.
41. FINANCIAL STATEMENTS. This lease is contingent on Landlord's review and
approval of Tenant's most recent two years financial statements.
42. BROKERS. Landlord and Tenant each warrant that they have dealt with no
other real estate brokers in connection with this transaction except: CB Xxxxxxx
Xxxxx Tucson, LLC, 0000 X. Xxxxxxxx Xxxx, Xxxxxx, XX 00000 ATTN: Xxxxxx Kong,
520.321.3336, who represents Tenant, and Xxxxxxxx Commercial Realty LLC, 0000 X.
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, ATTN: Xxxx Xxxxxxxx, who represents
Landlord. Landlord shall pay a commission to brokers per a separate agreement.
IN WITNESS WHEREOF, the Landlord and the Tenant have signed this Office
Lease on the day and year first hereinabove written.
TENANT: IMARX THERAPEUTICS, INC.
BY: /s/ Xxxx Xxxx DATE: 8/11/06
---------------------------------
ITS: CFO
LANDLORD: FORTY-EIGHT-O-ONE LLC
BY: /s/ Xxxxx X. Xxxxx DATE: 8/16/06
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ITS: Member
August 10, 2006 Landlord JCO Tenant GC
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EXHIBIT A - FLOORPLAN OF PREMISES
BROADWAY - FIFTH FLOOR
(FLOOR PLAN)
August 10, 2006 Landlord ___ Tenant GC
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EXHIBIT "B" - TENANT IMPROVEMENT BID
1. Landlord shall within five days of Tenant's move in, re-install the glass
entry doors in elevator vestibule (similar to other floors within the building).
Said doors are being currently being stored on site.
2. Landlord shall bonnet clean carpet within said premises.
August 10, 2006 Landlord JCO Tenant GC
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EXHIBIT "C" - OFFICE FURNITURE
All existing office furniture on the fifth floor shall become the property of
the Tenant upon physical occupancy of the premises by Tenant.
However, it is agreed upon by both parties, said office furniture shall remain
on the fifth floor until the expiration of the initial lease term.
In addition, should Tenant elect early termination all office furniture shall
automatically revert back to the Landlord upon Tenant's vacation.
The inventory of office furniture on the Fifth Floor is as follows:
August 10, 2006 Landlord JCO Tenant GC
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EXHIBIT D - PARKING GARAGE
August 10, 2006 Landlord JCO Tenant GC
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