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EXHIBIT 10.25
COMMERCIAL LEASE - TRIPLE NET
1. PARTIES. This Lease is made effective November 1, 2002, by and
between the
following parties:
(1) IMARx
Investments L.L.C., an Arizona Limited Liability Company,
(herein
called
"Landlord" or "Lessor"), and
(2) IMARx
Therapeutics, Inc., a Delaware corporation (herein called
"Tenant"
or
"Lessee").
2. PREMISES. Landlord hereby leases to Tenant and Tenant leases
from Landlord,
upon all of the conditions set forth herein, the premises situate
in the County
of Pima, State of Arizona, with address of (and commonly known as)
1635 East
18th Street, Tucson, Arizona 85710 ("the premises"), being a
commercial
industrial building of approximately 6,200 square feet in size and
surrounding
real property for access, landscaping and parking which is more
precisely
described on the "Legal Description" attached hereto as Exhibit
A.
3. TERM. The basic term of this Lease shall be for approximately
six (6) years
commencing on November 1, 2002, and ending on October 31, 2008,
unless sooner
terminated or extended pursuant to any provision hereof. Specific
options to
extend are contained in Paragraph 40, hereof.
4. BASIC RENT.
4.1 Monthly Fixed Rent. Tenant shall pay to Landlord as fixed
rent
for the Premises, monthly payments of FOUR THOUSAND EIGHT HUNDRED
SEVENTY FOUR
DOLLARS ($4,874.00) each, in advance, without deduction, off-set or
demand, on
the first day of each month of the term hereof with the initial
month's rent
being prorated. The basic monthly rental shall be adjusted at the
end of a three
(3) year period to reflect any increase in the consumer price index
(all items)
published by the U.S. Labor Department for the first month of the
three year
period compared to the last month of the lease term. Rent shall be
payable in
lawful money of the United States to Landlord at the address stated
herein or to
such other persons or at such other places as Landlord may
designate in writing
from time to time.
4.2 Rental Taxes. As additional rent, Tenant further agrees to
pay
to Landlord, together with each basic, periodic rental payment, the
amount of
any excise, sales or transaction privilege tax imposed or levied by
any
government or governmental agency upon Landlord on account of this
Lease, or of
the rentals paid hereunder by Tenant, or of any other payments made
or
obligations discharged or benefits conferred by Tenant hereunder,
including
without limitation, payments of Tenant's costs of insurance under
Paragraph 10,
real property taxes under Paragraph 6 and other maintenance
expenses under
Paragraph 5. Tax calculations and impositions will be subject to
applicable
changes in local and state tax ordinances.
5. ADDITIONAL RENT: AND OTHER MAINTENANCE EXPENSES. In order that
the fixed rent
shall be absolutely net to Landlord, Tenant covenants to pay, as
additional
rent, all real estate taxes (see Paragraph 6), and all other
operating expenses,
respecting the Premises, including the following:
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(1) Various
utilities costs, janitorial and other maintenance costs,
insurance
costs,
real property tax impositions, and any other operating costs.
Accordingly, Tenant shall pay to or as directed by Landlord the
amount of
such
operating expenses reasonably allocated to or attributable to
the
Premises
within ten (10) days after each periodic invoicing or other
billing
received by Tenant therefor from either the party providing
such
services
or Landlord, as the case may be;
(2)
Additionally,
(a) Tenant shall
pay to Landlord, within a reasonable time after written
demand
therefor by Landlord but before any fine, penalty, interest or
cost
may be
added thereto for nonpayment thereof, all public charges with
respect to
the Premises, including, but not limited to, water and sewer
use
charges and betterment assessments, as well as real estate
taxes
(pursuant to Paragraph
6), business privilege taxes (pursuant to Paragraph
4.2), and
personal property taxes (pursuant to Paragraph 6.3).
(b) Tenant shall
pay directly to the proper authorities charged with
collection
thereof all charges for water, sewer, gas, electricity,
telephone,
and any other power, utilities, or services used for consumed
on the
premises; Tenant shall make its own arrangements for such
utilities
and
Landlord shall be under no obligation to furnish any utilities to
the
Premises
and shall not be liable for any interruption or failure in the
supply of
any such utilities to the Premises;
Tenant agrees to pay for janitorial service and any other
maintenance services
for or repairs of the Premises, all in accordance with the
provisions of this
Lease (including Paragraph 9).
(c) Tenant shall
furnish to Landlord, at Landlord's written request, for
Landlord's
inspection, within thirty (30) days after the date any amount
is payable
by Tenant, as provided in Paragraph 5, official receipts or
other
proof satisfactory to Landlord evidencing such payment.
6. REAL PROPERTY TAXES.
6.1 Payment of Taxes. Within ten (10) days after written demand
by
Landlord, Tenant shall pay to Landlord the "Real Property Tax", as
defined in
Paragraph 6.2, applicable to the Premises during the term of this
Lease. If any
such taxes shall cover any period of time prior to or after the
expiration of
the term hereof, Tenant's share of such taxes shall be equitably
prorated to
cover only the period of time within the applicable tax fiscal year
when this
Lease was in effect.
6.2 Definition of "Real Property Tax". As used herein, the term
"Real Property Tax" shall include any form of real estate tax or
assessment, be
it ad valorem, general, special ordinary or extraordinary, and any
license fee,
commercial rental tax, improvement bond or bonds, levy or tax
(other than
inheritance, personal income or estate taxes) imposed on or
reasonably
attributable to the Premises by any authority having the direct or
indirect
power to tax, including any city, state or federal government, or
any school,
agricultural, sanitary, fire, street, drainage or other improvement
district
thereof. The Term "Real Property Tax" shall also include any tax,
fee, levy,
assessment or charge (i) in substitution of, partially or totally,
any tax, fee,
levy assessment or charge hereinabove included within the
definition of "Real
Property Tax", or (ii) the nature of which was hereinbefore
included within the
definition of "Real
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Property Tax", or (iii) which is imposed by reason of this
transaction, any
modifications or changes hereto or any transfers hereof.
6.3 Personal Property Taxes.
(a) Tenant shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, furniture,
equipment and
all other personal property of Tenant contained in the Premises or
elsewhere.
Whenever possible, Tenant shall cause said trade fixtures,
furnishings,
furniture, equipment and all other personal property to be assessed
and billed
separately from the Real Property of Landlord.
(b) If any of Tenant's personal property shall be assessed
with Landlord's Real Property, Tenant shall pay Landlord the taxes
attributable
to Tenant within ten (10) days after receipt of a written statement
from
Landlord setting forth the taxes applicable to Tenant's Property.
Landlord's
reasonable determination thereof, in good faith shall be
conclusive.
7. SECURITY DEPOSIT. Tenant shall make the following deposit with
Landlord upon
execution hereof as security for Tenant's faithful performance of
Tenant's
obligations hereunder: Cash in the amount of $3,508.96, to be held
by Landlord.
If Tenant fails to pay rent or other charges due and payable
hereunder, or
otherwise defaults with respect to any provision of this Lease,
then, after
10-days' written notice of the default and failure by Tenant to
cure within said
10-day period, Landlord may use, apply or retain all or any portion
of said
deposit for the payment of any rent, damages or other charge in
default. If
Landlord so uses or applies all or any portion of said deposit, the
Tenant
shall, within ten (10) days after written demand therefore deposit
cash with
Landlord in an amount sufficient to restore said deposit to the
full amount
hereinabove stated ($3,508.96). Tenant's failure to do so shall be
a material
breach of this Lease. Landlord shall be required to keep said
deposit separate
from its general accounts and in a separate interest-bearing
account. At the end
of each calendar year any accrued interest shall be paid to Tenant,
if not
needed to bring account up to full balance. If Tenant performs all
of Tenant's
obligations hereunder, said deposit, or so much thereof as has not
theretofore
been applied by Landlord shall be returned, together with any
interest accrued
on it, to Tenant at the expiration of the term hereof (and once
Tenant has
vacated the Premises). No trust relationship is created herein
between Landlord
and Tenant with respect to said Security Deposit.
8. USE. The Premises shall be used and occupied only commercial
offices and
testing and production of pharmaceutical products, including any
other uses
which are in compliance with zoning restrictions governing the use
of Premises,
and for no other purpose. Landlord expressly disclaims any/all
representations
and warranties regarding the lawfulness of Tenant's intended use or
occupation
of the Premises. It is Tenant's responsibility to determine and
comply with all
applicable covenants, conditions and restrictions and all
applicable zoning
ordinances or other ordinances, regulations, requirements,
stipulations and
conditions affecting the use of occupancy of the Premises.
8.2
Compliance with Law.
(a) Tenant shall, at Tenant's expense, comply promptly with
all applicable laws, statutes, ordinances, rules, regulations,
orders,
covenants, restrictions of record, and requirements in effect
during the term or
any part of the term hereof, regulating Tenant's operation on and
occupancy and
use of the Premises including but not limited to compliance
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with all environmental laws. Environmental laws shall mean any and
all federal
and state laws and regulations that concern the regulation and/or
protection of
the environment, including the ambient air, ground water, surface
water, noise,
vibration, asbestos, hazardous materials, and land use, including
substrata
land. Tenant shall not use or permit the use of the Premises,
including placing
loads on any floor or wall, in a manner for which the premises were
not
designed, engineered or constructed. Tenant shall not place a load
upon any
floor or wall exceeding the design engineering criteria, which such
floor or
wall was designed to carry and/or which is prescribed by any law or
regulation
in existence during the term of this Lease. Tenant may request in
writing
Landlord's approval of any or all of Tenant's trade fixtures and
equipment for
compliance with the design engineering criteria for the Premises
and Landlord
shall reply to Tenant's request within a reasonable period of time.
Tenant
hereby indemnifies Landlord against liability for any of the above
items. Tenant
shall not use nor permit the use of the Premises in any manner that
will create
waste or a nuisance.
8.3 Condition of Premises. Unless otherwise specifically provided
in
this Lease, Tenant hereby accepts the Premises in their "AS IS"
condition
including any and all defects, latent or otherwise, existing as of
the Lease
commencement date or the date that Tenant takes possession of the
Premises,
whichever is earlier, subject to all applicable zoning, municipal,
county and
state laws, ordinances and regulations governing and regulating the
use of the
Premises, and any covenants or restrictions of record, and accepts
this Lease
subject thereto and to all matters disclosed thereby and by any
exhibits
attached hereto. Tenant acknowledges that Landlord has made no
representation or
warranty as to the present or future suitability of the Premises
for Tenant's
use or the conduct of Tenant's business.
9. MAINTENANCE, REPAIRS AND ALTERNATIONS.
9.1 Tenant's Obligations. Tenant shall maintain, replace and keep
in
good order, condition and repair the Premises and every part
thereof, which is
nonstructural (whether or not such portion of the Premises
requiring repair, or
the means of repairing the same are reasonably or readily
accessible to Tenant,
and whether or not the need for such repairs occurs as a result of
Tenant's use,
or any prior use, the elements or the age of such portion of the
Premises),
including, without limiting the generality of the foregoing, the
maintenance and
replacement of all plumbing, heating, air conditioning (Tenant
shall procure and
maintain, at Tenant's expense, an air conditioning system
maintenance contract),
ventilating, electrical, lighting facilities and equipment within
the Premises,
fixtures, walls (interior and exterior), ceilings, roofs (interior
and
exterior), windows, doors, plate glass and skylights located within
the
Premises, and all landscaping, driveways, parking lots, sidewalks,
fences and
signs located on the Real Property which are reserved for Tenants
use. Tenant
shall not be responsible for replacement of any structural part of
the building.
9.2 Surrender. On the last day of the term hereof, or on any
sooner
termination, Tenant shall surrender the Premises to Landlord in the
same
condition as when received, ordinary wear and tear excepted, clean
and free of
damage or debris. Tenant shall repair any damage to the Premises
and/or the Real
Property occasioned by the installation or removal of Tenant's
trade fixtures,
furnishings and equipment. Notwithstanding anything to the contrary
otherwise
stated in this Lease, Tenant shall leave the power panels,
electrical
distribution systems, lighting fixtures, space heaters, air
conditioning,
plumbing, doors and fencing on the Premises which will belong to
the Landlord in
good operating condition.
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9.3 Landlord's Rights. If Tenant fails to perform Tenant's
obligation under this Paragraph, or under any other paragraph of
this Lease,
Landlord may at its option (but shall not be required to) enter
upon the
Premises after ten (10) days prior written notice to Tenant (except
in the case
of urgency, in which case no notice shall be required), perform
such obligation
on Tenant's behalf and put the same in good order, condition and
repair, and the
cost thereof, together with interest thereon (at two (2) points
over the prime
rate as set and announced by the Wall Street Journal from time to
time), shall
become due and payable on demand as additional rental to
Landlord.
9.4 Landlord's Obligations. Except for the obligations of
Landlord
under Paragraph 11 (relating to destruction of the Premises) and
under Paragraph
15 (relating to condemnation of the Premises), it is intended by
the parties
hereto that Landlord shall have no obligation, in any manner
whatsoever, to
repair or maintain the Premises or any part thereof, or the Real
Property, or
any equipment on the Premises, which are nonstructural, or which
obligations are
intended to be those of the Tenant under Paragraph 9.1 hereof.
Tenant expressly
waives the benefit of any statute of law now or hereinafter in
effect which
would otherwise afford Tenant the right to make repairs at
Landlord's expense or
to terminate this Lease because of Landlord's failure to keep the
Premises in
good order, condition and repair. Notwithstanding the foregoing,
should Landlord
receive any warranty or guaranty respecting any material,
equipment, or
workmanship, and should such warranty or guaranty be applicable to
portions of
the Premises which Tenant is liable to repair and maintain (as
required
hereunder), Landlord shall, upon Tenant's request, assign and
transfer such
warranty or guaranty to Tenant for Tenant's use and benefit.
9.5 Alterations and Additions.
(a) Tenant shall not, without Landlord's prior written
consent, which shall be given if reasonable, make any alterations,
improvements,
additions or Utility Installation in, on or about the Premises.
Tenant shall
make no change or alteration to the exterior of the Premises, nor
to the Real
Property, without Landlord's prior written consent. As used in this
Paragraph
9.5 the term "Utility Installation" shall mean carpeting, window
covering, air
lines, power panels, electrical distribution systems, lighting
fixtures, space
heaters, air conditioning, plumbing or fencing. Landlord may not
require that
Tenant remove any or all of said alterations, improvements,
additions or Utility
Installations at the expiration of the term. 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 times the estimated cost of
such
improvements, to insure Landlord against any liability for
mechanic's and
material men's liens and to insure completion of the work. Landlord
may impose
reasonable conditions from time to time with respect to the
improvements to
which Landlord may consent, including without limitation,
compliance with all
laws, including environmental laws, regulations, ordinances and
-requirements of
governments or governmental agencies, and the time and manner in
which such work
shall be accomplished. Should Tenant make any alterations,
improvements,
additions or Utility Installation without the prior approval of
Landlord,
Landlord may require that Tenant remove any or all of the same.
(b) Any alteration, improvement, addition, or Utility
Installation in or about the Premises that Tenant shall desire to
make and which
requires the consent of the Landlord shall be presented to Landlord
in written
form, with proposed detailed plans, and Landlord shall respond to
Tenant on the
matter within fifteen (15) days after Landlord's receipt of the
plans and
specifications and other information requested by Landlord in order
to make an
informed decision. If Landlord shall give its consent, the consent
shall be
deemed conditioned upon Tenant acquiring applicable permit(s) to do
so from
appropriate governmental agencies, the
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furnishing of a copy thereof to Landlord prior to the Commencement
of the work
and the compliance by Tenant with all conditions of said permit in
a prompt and
expeditious manner, and compliance by Tenant with all laws, rules,
regulations,
recommendations and/or applicable requirements of any government or
governmental
agency.
(c) Tenant shall pay, when due, all claims for labor,
professional services and materials furnished, or alleged to have
been furnished
to or for Tenant at (or for use in) the Premises, which claims are
or may be
secured by any mechanic's or material men's lien against the
Premises or any
interest therein. Tenant shall give Landlord not less than ten (10)
days' notice
prior to the commencement of any work in the Premises, and Landlord
shall have
the right to post notices of non-responsibility in or on the
Premises as
provided by law. If Tenant shall, in good faith, contest the
validity of any
such lien, claim or demand, then Tenant shall, at its sole expense
defend itself
and Landlord against same and shall pay and satisfy any such
adverse judgment
that may be rendered thereon before the enforcement thereof against
the Landlord
or the Premises, upon the condition that if Landlord shall require,
Tenant shall
furnish to Landlord a surety bond satisfactory to Landlord in an
amount
sufficient to cover Landlord against liability on account of such
contested
lien, claim or demand, and indemnifying Landlord against liability
for the same,
and holding the Premises free from the effect of such lien or
claim. In
addition, Landlord may require Tenant to pay Landlord's attorney
fees and costs
incurred on account of participation in such action, if Landlord
determines in
its discretion to do so and does so.
(d) Unless Landlord requires their removal, as set forth in
Paragraph 9.5(a), all alterations, improvements, additions, and
Utility
Installations (unless 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 foregoing provision, Tenant's
furniture,
machinery and equipment shall remain the property of Tenant and may
be removed
by Tenant subject to the provisions of Paragraph 9.2.
10. INSURANCE INDEMNITY. It is understood and agreed that Tenant
shall be
obliged to pay for insurance coverage, including property casualty
and public
liability insurance, with respect to the Premises, as specified in
Paragraph
5(1) above. In case such insurance coverage is deemed inadequate by
Landlord at
any time in its reasonable discretion, Tenant shall be obliged to
provide
insurance coverage pursuant to the following Paragraphs 10.1
through 10.4.
10.1 Liability Insurance. Tenant shall, at Tenant's expense,
obtain
and keep in force during the term of this Lease and during Tenant's
occupancy of
the Premises a policy of comprehensive general liability insurance
with at least
$1,000,000 combined single limit for bodily injury (including death
and property
damage), covering the Premises, and Tenant's use and occupancy
thereof against
all claims on account of bodily injury or death and property damage
occurring
upon, in or about such areas or in connection with the ownership,
maintenance,
use and/or occupancy of such areas. Landlord, and, at Landlord's
option, any
mortgagee of Landlord, shall be named as insured or as an
additional insured
under the policy. The limits of said insurance shall not, however,
limit the
liability of Tenant hereunder.
10.2 Property Casualty Insurance. Tenant 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 in the amount of the full
replacement value
thereof, as the same may exist from time to time, but in no event
less than the
total amount required by lenders having liens on the Premises,
against all
perils included within the classification of fire, extended
coverage, vandalism,
malicious
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mischief and flood (in the event same is required by a lender
having a lien on
the Premises). Landlord shall be named as insured (or an additional
insured) on
the policy. Said insurance shall provide for payment of loss
thereunder to
Landlord or to the holders of mortgages or deeds of trust on the
Premises.
10.3 Insurance Policies. Insurance required hereunder shall be
in
companies holding a "General Policyholders Rating" of at least
B-plus, or such
other rating as may be required by a lender having a lien on the
Premises, as
set forth in the most current issue of "Best's Insurance Guide".
Tenant shall
provide to Landlord copies of insurance certificates naming the
insured parties
and evidencing the existence and the amounts of the insurance
required in this
Paragraph 10, promptly upon execution of this Lease. No such policy
shall be
cancelable or subject to reduction of coverage or other
modification except
after thirty (30) days prior written notice to Landlord. Tenant
shall, at lease
thirty (30) days prior to the expiration of such policies, furnish
Landlord and
any mortgagee of Landlord named as an insured with renewals
certificates, or
landlord may, but shall not be obligated to, order such insurance
and charge the
cost thereof to Tenant, which amount shall be payable by Tenant
upon demand.
Tenant shall not do or permit to be done anything which shall
invalidate the
insurance policies referred to in this section 10. If Tenant does
or permits to
be done anything which shall increase the costs of the insurance
policies
referred to in Paragraph 10.2, then Tenant shall forthwith upon
Landlord's
demand pay such additional cost, or reimburse Landlord for any
additional
premium payable by it which is attributable to any act or omission
or operation
or Tenant causing such increase in the cost of insurance.
10.4 Waiver of Subrogation. Tenant and Landlord each hereby
release
and relieve the other, and waive their entire right of recovery
against the
other for loss or damage arising out of or incident to the perils
insured
against under Paragraph 10.2, which perils occur in, on or about
the Premises,
whether due to the negligence of Landlord or Tenant or their
agents, employees
contractors and/or invitees but only to the extent that insurance
policies then
in effect permit such waiver and only to the extent of the coverage
provided by
such insurance policies. Tenant and Landlord 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.
10.5 Indemnity. Tenant shall indemnify and hold harmless
Landlord
from and against any and all claims arising from Tenant's (or
Tenant's agents',
servants', employees' or contractors') use or occupancy of the
Premises, or from
the conduct of Tenant's business or from any activity, work or
things done,
permitted or suffered by Tenant (or Tenant's agent, servants,
employees or
contractors) in or about the Premises and shall further indemnify
and hold
harmless Landlord from and against any and all claims arising from
any breach or
default in the performance of any obligation on Tenant's part to be
performed
under the terms of this Lease, or arising from any negligence of
the Tenant, or
any of Tenant's agents, contractors or employees, and from and
against all
costs, attorneys' 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 brought against Landlord by reason of such claim,
Tenant (upon
notice from Landlord) shall defend the same at Tenant's expense, by
counsel
satisfactory to Landlord. For valuable, sufficient consideration,
Tenant, hereby
assumes all risk of damage to property or injury to persons in,
upon or about
the Premises arising from any cause (except Landlord's negligence),
and Tenant
hereby waives all claims with respect thereto against Landlord.
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Tenant shall indemnify and hold harmless Landlord from and
against
any and all liability, claims or actions for injury, liability, or
damage to
persons or property, and any and all claims or actions brought by
any person,
firm, governmental body, or other entity, including reasonable
legal fees and
expenses, alleging or resulting from or arising from or in
connection with
contamination of or adverse affects on the Premises, the
environment, or any
violation of any Environmental Law or other statute, ordinance,
rule,
regulation, judgment or order of any governmental or judicial
entity, and from
and against any damages, liabilities, costs, and penalties assessed
as a result
of any activity or operation on the Premises during the term of
this Lease.
Tenant's obligations or liabilities under this Paragraph shall
survive the
term(s) of this Lease, termination of this Lease or termination of
Tenant's
occupancy of the Real Property.
10.6 Exemption of Landlord Liability. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant's business or any
loss of
income therefrom or for damage to the goods, wares, merchandise or
other
property of Tenant, Tenant's employees, invitees, customers or any
other person
in or about the Premises, nor shall Landlord be liable for injury
to the person
of Tenant, Tenant'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 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 Tenant unless caused by
Landlord's
negligence.
11. DAMAGE OR DESTRUCTION.
11.1 Definitions.
(a) "Premises Partial Damage" shall herein mean damage or
destruction to the Premises to the extent that the cost of r
