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EXHIBIT 10.26
STANDARD COMMERCIAL-INDUSTRIAL LEASE
1. PARTIES. This Lease dated, for reference purposes only DECEMBER
30, 1997 is
made by and between TUCSON TECH PARK (herein called "Lessor") and
IMARX
PHARMACEUTICAL CORPORATION (herein called "Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from
Lessor for
the term, at the rental and upon all the conditions set forth
herein that
certain real property situated in the County of Pima State of
Arizona commonly
known as: Suite 100, located at 1700 East 18th Street, Tucson,
Arizona 85719.
Approximately 1500 sq ft as shown on the attached site plan, and
described on
Exhibit A attached premises outlined in red hereto and made a part
hereof. Said
real property including the land and all improvements thereon is
herein called
"the Premises". All dimensions and areas quoted herein are
approximate.
3. TERM.
3.1
TERM. The term of this Lease shall be for one year less 15 days
commencing on February 15, 1998 and ending on January 31, 1999
unless sooner
terminated pursuant to any provision hereof.
3.2
DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if
for
any reason Lessor cannot deliver possession of the Premises to
Lessee on said
date, Lessor shall not be subject to any liability therefore, nor
shall failure
affect the validity of this Lease or the obligations of Lessee
hereunder or
extend the term hereof, but in such case Lessee shall not be
obligated to pay
rent until possession of the Premises is tendered to Lessee;
provided, however
that if Lessor shall not have delivered possession of the Premises
within sixty
(60) days from said commencement date, Lessee may, at Lessee's
option, by notice
in writing to Lessor within ten (10) days thereafter cancel this
Lease, in which
event the parties shall be discharged from all obligations
hereunder. If Lessee
occupies the Premises prior to said commencement date such
occupancy shall be
subject to all provisions hereof; such occupancy shall not advance
the
termination date, and Lessee shall pay rent for such period at the
initial
monthly rates set forth below. If Lessor by reason outside the
reasonable
control of Lessor, cannot deliver said premises within ninety (90)
days from
said commencement date, Lessor may at Lessor's option, by notice in
writing
within ten (10) days thereafter cancel this Lease.
4. RENT. Lessee shall pay by the first day of each month, Lessor a
monthly
rental of eight hundred forty and no/00 dollars ($840.00) in lawful
money of the
United States of America for each and every month of the Lease. The
Lessee
further agrees to pay in addition to the rent as provided herein
all privilege,
sales, excise, and other taxes (except income taxes) imposed by
State Federal,
or municipal upon the rentals herein provided to be paid by the
Lessee to the
Lessor. Said payment shall be in addition to and accompanying each
rental
payment made by Lessee to Lessor.
Rent for any period during the term hereof which is for less than
one month
shall be a pro rata portion of the monthly installment. Rent shall
be payable in
lawful money of the United States to Lessor at the address stated
herein or to
such other persons or at such other places as Lessor may designate
in writing.
The rent due under terms of this Paragraph may be modified by
Paragraph Eleven
(11) below.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon
execution hereof
$840.00 as security for Lessee's faithful performance of Lessee's
obligations
hereunder. If Lessee fails to pay rent or other charges due
hereunder or
otherwise defaults with respect to any provision of this Lease.
Lessor may use
apply, or retain all or any portion of said deposit for the payment
of any rent
or other charge in default or for the payment of any other sum to
which Lessor
may become obligated by reason of Lessee's default, or to
compensate Lessor for
any loss or damage which Lessor may suffer thereby if Lessor so
uses or applies
all of any portion of said deposit Lessee shall within ten (10)
days after
written demand thereof deposit cash with Lessor in an amount
sufficient to
restore said deposit to the full amount hereinabove stated, and
Lessee's failure
to do so shall be a material breach of this Lease. Lessor shall not
be required
to keep said deposit separate from its general accounts. If Lessee
performs all
of Lessee's obligations hereunder, said deposit, or so much thereof
as has not
theretofore been applied by Lessor, shall be returned, without
payment of
interest or other increment for its use to Lessee (or at Lessor's
option, to the
last assignee, if any, of Lessee's interest hereunder) at the
expiration of the
term hereof, and after Lessee has vacated the premises.
6. USE.
6.1
USE. The Premises shall be used and occupied only for research
and
associated activities, including but not limited to storage,
records
maintenance, general office, etc. and for no other purpose Lessee
shall not use,
or permit to be used, the Premises or any part thereof, for any
purpose or
purposes other than the purpose or purposes for which said Premises
are hereby
leased; and no use shall be made or permitted to be made of said
Premises, which
will increase the existing rate of insurance upon the building in
which said
Premises may be located, or cause a cancellation of any insurance
policy
covering said building, or any part thereof, nor shall Lessee sell,
or permit to
be kept, used, or sold, in or about said Premises, any article
which may be
prohibited by standard form of fire Insurance policies.
6.2
COMPLIANCE WITH LAW. Lessee shall at Lessee's expense, comply
promptly
with all applicable statutes, ordinances, rules, regulations,
orders, and
requirements in effect during the term or any part of the term
hereof regulating
the use by Lessee of the Premises Lessee shall not use or permit
the use of the
Premises in any manner that will tend to create waste or a nuisance
or, if there
shall be more than one tenant of the building containing the
Premises, which
shall tend to disturb such other tenants.
6.3
CONDITION OF PREMISES. Lessee hereby accepts the Premises in
their
condition existing as of the date of the execution hereof, subject
to all
applicable zoning, municipal, county and state laws, ordinances and
regulations
governing and regulating the use of the Premises, and accepts this
Lease subject
thereto and to all matters disclosed thereby and by any exhibits
attached
hereto. Except as otherwise stated in this Lease, Lessee hereby
acknowledges
that neither the Lessor nor any employees or agents of Lessor has
made any oral
or written warranties or representations to Lessee relative to the
condition or
use by Lessee of said Premises and Lessee acknowledges that Lessee
assumes all
responsibility regarding the Occupational Safety Health Act, the
legal use and
adaptability of the Premises and the compliance thereof with all
applicable laws
and regulations in effect during the term of this Lease except as
otherwise
specifically stated in this Lease.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1
LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraph 9
and
except for damage caused by any negligent or intentional act or
ommission of
Lessee. Lessee's agents employees, or invitees Lessor, at Lessor's
expense shall
keep in good order, condition, and repair the foundations, exterior
walls, and
the exterior roof of the Premises. The Lessee shall give the Lessor
prompt
notice of any defects or breakage in the structure, equipment
fixtures, or of
any unsafe conditions upon or within the Leased Premises. Lessee
expressly
waives the benefits of any statute now or hereafter in effect which
would
otherwise afford Lessee the right to make repairs at Lessor's
expense or to
terminate this Lease because of Lessor's failure to keep the
Premises in good
order, condition, and repair.
7.2
LESSEE'S OBLIGATIONS.
(a)
Subject to the provision of Paragraphs 7 and 9, Lessee, at
Lessee's
expense shall keep in good order and in a neat and sanitary
condition and repair
the Premises and every part thereof (whether or not the damaged
portion of the
Premises or the means of repairing the same are reasonably or
readily accessible
to Lessee) including, without limiting the generality of the
foregoing, all
plumbing, heating air conditioning, ventilating, electrical and
lighting
facilities and equipment within the Premises, fixtures, interior
walls and
interior surface of exterior walls, ceilings, windows, doors plate
glass, and
skylights, located within the Premises, and all landscaping,
driveways, parking
lots fences and signs located in the Premises and all areas
immediately adjacent
to the Premises. Notwithstanding the foregoing the Lessor shall
maintain and
repair all Lessee's expense the heating and cooling equipment and
shall bill
Lessee for said work.
(b)
If Lessee fails to perform Lessee's obligations under this
Paragraph
7.2, Lessor may at Lessor's option enter upon the Premises after
ten (10) day's
prior written notice to Lessee and put the same in good order
condition and
repair, and the cost thereof together with interest thereon shall
be due and
payable as additional rent to Lessor together with Lessee's next
rental
installment.
7.3 ALTERATIONS AND ADDITIONS.
(a)
Lessee shall not without Lessor's prior written consent make
any
alterations, improvements or additions in, on or about the
Premises. Lessor may
require that Lessee, at Lessee's expense, remove any or all of said
alterations,
improvements, or additions at the expiration of the term, and
restore the
Premises to their prior condition. Should Lessee make any
alterations,
improvements or additions without the prior approval of Lessor.
Lessor may
require that Lessee remove the same. Anything herein contained to
the contrary
notwithstanding, Lessee shall not drill, punch or otherwise cause
any crack,
hole, opening or other break in the roof or roof area, or roof
supports, or in
the floors, on the walls or in other permanent areas or structures
without first
receiving the prior written consent of Lessor.
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(b) Any alterations improvements or additions in, or about the
Premises that Lessee shall desire to make and which requires the
consent of the
Lessor shall be presented to Lessor in written form with proposed
detailed
plans. If Lessor shall give its consent the consent shall be deemed
conditioned
upon Lessee acquiring a permit to do so from appropriate
governmental agencies
the furnishing of a copy thereof to Lessor prior to the
commencement of the work
and the compliance by Lessee of all conditions of said permit in a
prompt and
expeditious manner. In addition, Lessor may require Lessee to
provide Lessor, at
Lessee's sole cost and expense, a lien and completion bond in an
amount equal to
one and one half times the estimated costs of such improvements to
insure Lessor
against any liability for mechanics and materialmen's liens and to
insure
completion of the work.
(c) Lessee shall pay when due all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or
for use in
the Premises, which claims are or may be secured by any mechanics
or
materialmen's lien against the Premises or any interest therein.
Lessee shall
give Lessor not less than ten (10) days notice prior to the
commencement of any
work in the Premises and Lessor shall have the right to post
notices of
non-responsibility in or on the Premises as provided by law. If
Lessee shall in
good faith, contest the validity of any such lien, claim or demand
then Lessee
shall at its sole expenses defend itself and Lessor against the
same and shall
pay and satisfy any such adverse judgment that may be rendered
thereon before
the enforcement thereof against the Lessor or the Premises, upon
the condition
that if Lessor shall require, Lessee shall furnish to Lessor a
surely bond
satisfactory to Lessor in an amount equal to such contested lien
claim or demand
indemnifying Lessor against liability for the same and holding the
Premises free
from the effect of such lien or claim in addition. Lessor may
require Lessee to
pay Lessor's attorney's fees and costs in participating in such
action if Lessor
shall decide it is to its best interest to do so.
(d) Unless Lessor requires their removal as set forth in
Paragraph
7.3(a) all alterations improvements and additions which may be made
on the
Premises shall become the property of Lessor and remain upon and be
surrendered
with the Premises at the expiration of the term or on sooner
termination
thereof.
8. INSURANCE; INDEMNITY.
8.1.
Liability Insurance. Lessee shall at Lessees expense obtain and
keep
in force during the term of this Lease a policy of comprehensive
public
liability Insurance insuring Lessor and Lessee against any
liability arising out
of the ownership use occupancy or maintenance of the Premises and
all areas
appurtenant thereto. Such insurance shall be in an amount of not
less than
$300,000 for injury to or death of one person in any one accident
or occurrence
and any amount of not less than $500,000 for injury to or death of
more than one
person in any one accident or occurrence. Such Insurance shall
further insure
Lessor and Lessee against liability for property damage of at least
$50,000. The
limits of said insurance shall not, however limit the liability of
Lessee
hereunder. In the event that the Premises constitute a part of a
larger property
said insurance shall have a Lessor's Protective Liability
endorsement attached
thereto. If Lessee shall fail to procure and maintain said
Insurance Lessor may,
but shall not be required to, procure and maintain the same, but at
the expense
of Lessee.
8.2
PROPERTY INSURANCE.
(a) Lessor shall obtain and keep in force during the term of
this
Lease a policy or policies of insurance covering loss or damage to
the Premises
and loss of rents; but not Lessee's fixtures equipment or tenant
improvements in
such amount as Lessor shall determine providing protection against
all perils
included within the classification of fire extended coverage,
vandalism,
malicious mischief, special extended perils (all risk) but not
plate glass
insurance.
(b) Lessee shall pay to Lessor, during the term hereof. In addition
to
the rent the amount of any increase in premiums for the insurance
required under
this Paragraph 8.2 over and above such premiums paid during the
Base Period as
hereinafter defined, whether such premium increase shall be the
result of the
nature of Lessee's occupancy, any act or omission of Lessee,
requirements of the
holder of a mortgage or deed of trust covering the Premises or
increased
valuation of the Premises or general rate increases. In the event
that the
Premises have been occupied previously the words "Base Period"
shall mean the
last twelve months of the prior occupancy and in the event that the
Premises
have never been previously occupied the words "Base Period" shall
mean the
lowest premium reasonably obtainable for the said insurance for the
Premises
assuming the most nominal use of the Premises.
(c) If the Premises being leased herein are part of a larger
property,
then Lessee shall not be responsible for paying any increase in the
property
insurance caused by the acts or omissions of any other tenant of
the building in
which the Premises are a part.
(d) Lessee shall pay any such premium increases to Lessor
within
thirty (30) days after receipt by Lessee of a copy of the premium
statement or
other satisfactory evidence of the amount due. If the insurance
policies
maintained hereunder cover other improvements in addition to the
Premises,
Lessor shall also deliver to Lessee a statement of the amount of
such increase
attributable to the Premises and showing in reasonable detail the
manner in
which such amount was computed. If the term of this Lease does not
expire
concurrently with the expiration of the period covered by such
insurance
Lessee's liability for premium increases shall be prorated on an
annual basis.
8.3
INSURANCE POLICIES. Lessee shall deliver to Lessor copies of
policies
of liability insurance required under Paragraph 8.1 or certificates
evidencing
the existence and amounts of such insurance with loss payable
clauses
satisfactory to Lessor. No such policy shall be cancellable or
subject to
reduction of coverage or other modification except after ten (10)
days prior
written notice to Lessor. Lessee shall within ten (10) days prior
to the
expiration of such policies furnish Lessor with renewals or binders
thereof, or
Lessor may order such insurance and charge the cost thereof to
Lessee which
amount shall be payable by Lessee upon demand Lessee shall not do
or permit to
be done anything which shall invalidate the insurance policies
referred to in
Paragraph 8.2.
8.4
WAIVER OF SUBROGATION. Lessee and Lessor each hereby waives any and
all
rights of recovery against the other or against the officers
employees, agents
and representatives of the other, for business interruption or for
loss of or
damage to such waiving party or its property or the property of
others under its
control, where such business interrupting loss or damage is insured
against
under any insurance policy in force at the time of such business
interrupting
loss or damage: Lessee and Lessor shall, upon obtaining the
policies of
insurance required hereunder give notice to the insurance carrier
or carriers
that the foregoing mutual waiver of subrogation is contained in
this Lease.
8.5
INDEMNIFY. Lessee shall indemnify and hold harmless Lessor from
and
against any and all claims arising from Lessee's use of the
Premises or from the
conduct of Lessee's business or from any activity, work or things,
done
permitted or suffered by Lessee in or about the Premises or
elsewhere and shall
further indemnify and hold harmless Lessor from and against any and
all claims
arising from any breach or default in the performance of any
obligation on
Lessee's part to be performed under the terms of this Lease or
arising from any
negligence of the Lessee, or any of Lessee's agents contractors or
employees,
and from and against all costs attorney's fees expenses and
liabilities incurred
in the defense of any such claim or any action or proceeding
brought thereon and
in case any action or proceeding be brought against Lessor by
reason of any such
claim. Lessee upon notice from Lessor shall defend the same at
Lessee's expense
by counsel satisfactory to Lessor.
8.6
EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that
Lessor
shall not be liable for injury to Lessee's business or any loss of
income
therefrom or for damage to the goods wares, merchandise or other
property of
Lessee. Lessee's employees, invitees customers or any other person
in or about
the Premises nor shall Lessor be liable for injury to the person of
Lessee.
Lessee's employees, agents or contractors, whether such damage or
injury is
caused by or results from fire, steam electricity, gas, water or
rain or from
the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures or from
any other
cause, whether the said damage or injury results from conditions
arising upon
the Premises or upon other portions of the building of which the
Premises are a
part, or from other sources or places and regardless of whether the
cause of
such damage or injury or the means of repairing the same is
inaccessible to
Lessee.
9. DAMAGE OR DESTRUCTION.
9.1
PARTIAL DAMAGE-INSURED. Subject to the provisions of Paragraphs 9.3
and
9.4 if the Premises are damaged and such damage was caused by a
casualty covered
under an insurance policy required to be maintained and pursuant to
Paragraph
8.2, Lessor shall at Lessor's expense repair such damage as soon as
reasonably
possible and this Lease shall continue in full force and effect but
Lessor shall
not repair or replace Lessee's fixtures, equipment or tenant
improvements.
9.2
PARTIAL DAMAGE-UNINSURED. Subject to the provisions of Paragraphs
9.3
and 9.4 if at any time during the term hereof the Premises are
damaged, except
by a negligent or willful act of Lessee (in which event Lessee
shall make the
repairs at its expense) and such damage was caused by a casualty
not covered
under an insurance policy required to be maintained pursuant to
Paragraph 8.2.
Lessor may at Lessor's option either (i) repair such damage as soon
as
reasonably possible at Lessor's expense, in which event this Lease
shall
continue in full force and effect, or (ii) give written notice to
Lessee within
thirty (30) days after the date of the occurrence of such damage of
Lessor's
intention to cancel and terminate this Lease as of the date of the
occurrence of
such damage in the event Lessor elects to give such notice of
Lessor's intention
to cancel and terminate this Lease. Lessee shall have the right
within ten (10)
days after the receipt of such notice to give written notice to
Lessor of
Lessee's intention to repair such damage at Lessee's expense,
without
reimbursement from Lessor, in which event this Lease shall continue
in full
force and effect and Lessee shall proceed to make such repairs as
soon as
reasonably possible. If Lessee does not give such notice within
such 10-day
period this Lease shall be cancelled and terminated as of the date
of the
occurrence of such damage.
9.3
TOTAL DESTRUCTION. If at any time during the term hereof the
Premises
are totally destroyed from any cause whether or not covered by the
insurance
required to be maintained by Lessor pursuant to Paragraph 8.2
(including any
total destruction required by any authorized public authority) this
Lease shall
automatically terminate as of the date of such total
destruction.
9.4
DAMAGE NEAR END OF TERM. If the Premises are partially destroyed
or
damaged during the last six (6) months of the term of this Lease
Lessor may at
Lessors option cancel and terminate this Lease as of the date of
occurren