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Exhibit 10.4
GUARANTY
THIS GUARANTY, dated as of November 22, 1999 (as amended, modified or
supplemented from time to time, this "GUARANTY"), is made by Schering AG, a
German corporation, having offices at D13342, Berlin, Germany (together with its
successors and assigns, "GUARANTOR"), in favor of DUSA Pharmaceuticals, Inc., a
New Jersey corporation, having executive offices at 00 Xxxxx Xxxxx, Xxxxxxxxxx,
XX 00000 (together with its successors and assigns, the "COMPANY").
RECITALS
A. The Company and Guarantor have entered into a certain Marketing,
Development and Supply Agreement of even date herewith (as amended, modified or
otherwise supplemented from time to time, the "MDS AGREEMENT") pursuant to which
the Company and Guarantor will collaborate on the development and
commercialization of certain Collaboration Products utilizing aminolevulinic
acid HCl (Levulan(R)) for use in the Field, all on the terms and conditions set
forth in the MDS Agreement.
B. Use of Collaboration Products within the Field requires certain
Light Sources (as defined in the Light Source Agreement). The Company has
engaged a third party to manufacture such Light Sources, and the Company and
Guarantor have entered into a certain Light Source Agreement of even date
herewith (as amended, modified or otherwise supplemented from time to time, the
"LIGHT SOURCE AGREEMENT") pursuant to which the Company will provide an adequate
supply of Light Sources.
C. The Company is willing to lease the Light Sources to certain
physicians and/or physician practices (each, a "LESSEE") for use with
Collaboration Products within the Field, and the Guarantor is willing to promote
the Light Sources and solicit, on the Company's behalf, Lessees to enter into
equipment Leases for those Light Sources.
D. In order to induce the Company to enter into each Lease, Guarantor
has agreed to execute and deliver this Guaranty.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and other benefits accruing to
Guarantor, the receipt and sufficiency of which are hereby acknowledged,
Guarantor agrees with the Company as follows:
1. Capitalized terms used but that are not otherwise defined in
this Guaranty have the meanings given to them in the MD&S Agreement or in the
Light Source Agreement, as applicable.
2. As used in this Guaranty, the following terms have the following
meanings:
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled
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"Bankruptcy," as now or hereafter in effect, or any successor thereto.
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which is a legal holiday or a day on which banking institutions are
authorized by law or other governmental action to close in New York, New York.
"COST OF GOODS" has the meaning set forth in the Light Source
Agreement.
"EVENT OF DEFAULT" has the meaning specified in the applicable
Lease.
"GOVERNMENTAL AUTHORITY" means any federal, state, local, or
foreign government or any subdivision, agency, instrumentality, authority,
department, commission, board or bureau thereof or any federal, state, local or
foreign court, tribunal or arbitrator.
"INDEBTEDNESS" of any Person means: (a) any liability of any
Person (i) for borrowed money (including the current portion thereof), or (ii)
under any reimbursement obligation relating to a letter of credit, bankers'
acceptance or note purchase facility, or (iii) evidenced by a bond, note,
debenture or similar instrument (including a purchase money obligation), or (iv)
for the payment of money relating to a lease that is required to be classified
as a capitalized lease obligation in accordance with generally accepted
accounting principles, or (v) for all or any part of the deferred purchase price
of property or services (other than trade payables), or (b) any liability of
others described in the preceding clause (a) that such Person has guaranteed,
that is recourse to such Person or any of its assets or that is otherwise its
legal liability or that is secured in whole or in part by the assets of such
Person.
"LEASE" means the form of equipment lease agreement attached
hereto as Exhibit 1, as the same may be modified from time to time by Company
subject to the terms hereof, and entered into between DUSA and an End User with
respect to one or more Light Sources.
"LIEN" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"PERSON" means any individual, corporation, partnership,
limited liability corporation or company, joint venture, trust, Governmental
Authority, unincorporated association or any other entity or organization.
3. Guarantor irrevocably and unconditionally guarantees to the Company
(a) the full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of rental payments under each Lease until the Lessee
under such Lease has paid in full an aggregate of the Company's Cost of Goods
for the Light Source in rental payments and (b) the Cost of Goods for each Light
Source held in the Company's inventory and not subject to a Lease [c.i.] of its
acceptance into the Company's inventory (collectively, the "GUARANTEED
OBLIGATIONS"). This Guaranty and the Guaranteed Obligations shall terminate on
the [c.i.] of the [c.i.] to an End User of a Light Source, and thereafter
Guarantor shall have no further obligations with respect to the Guaranty and
Guaranteed Obligations.
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If any Lessee cancels a Lease before making aggregate rental payments
under the Lease equal to or exceeding the Guaranteed Obligations, Guarantor
shall promptly pay to the Company the difference between (i) the Guaranteed
Obligations with respect to such Lease and (ii) the aggregate of rental payments
paid by the Lessee under such Lease until such time as the Light Source [c.i.]
to the Company's [c.i.] for [c.i.]; provided, however, that Guarantor's
obligation to make payment under this Guaranty shall not apply if the Lessee
does not [c.i.] under, or [c.i.], the Lease as a [c.i.] of a [c.i.]. If
Guarantor has made a payment under this paragraph with respect to a Light
Source, and the Company subsequently leases that same Light Source, the Company
will reimburse Guarantor up to the amount Guarantor has paid under this
paragraph with respect to such Light Source with any rental payments the Company
subsequently receives for such Light Source.
Guarantor understands, agrees and confirms that the Company may enforce
this Guaranty up to the full amount of the Guaranteed Obligations against
Guarantor without proceeding against any other guarantor or other person,
against any security for the Guaranteed Obligations, or under any other guaranty
covering all or a portion of the Guaranteed Obligations.
4. Additionally, Guarantor unconditionally and irrevocably, guarantees
the payment of any and all Guaranteed Obligations to the Company, whether or not
due or payable by the obligor thereon, upon the occurrence in respect of any
Event of Default by a Lessee, and unconditionally and irrevocably, promises to
pay such Guaranteed Obligations to the Company, on demand upon the Company
providing evidence reasonably satisfactory to Guarantor of such Event of
Default, in lawful money of the United States of America.
If an Event of Default occurs under a Lease, the Company will use
reasonable efforts to collect rental payments under such Lease [c.i.] under this
Guaranty, provided that, the foregoing will not be construed as requiring the
Company to [c.i.] and [c.i.] against a [c.i.] its rights under this Guaranty.
5. The liability of Guarantor under this Guaranty is exclusive and
independent of any security for or other guaranty of the obligations of any
Lessee under a Lease whether executed by Guarantor, any other guarantor or by
any other person, and the liability of Guarantor under this Guaranty will not be
affected or impaired by (i) any direction as to application of payment under a
Lease by any person, provided that any such application is for the timely
payment under another Lease to which this Guaranty applies, (ii) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other person as to the obligations of any Lessee under any Lease, (iii)
any payment on or in reduction of any such other guaranty or undertaking with
respect to a Lease or (iv) any dissolution, termination, any payment made to the
Company on the indebtedness which the Company repays to any Lessee pursuant to
court order in any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceeding, and Guarantor waives any right to the deferral or
modification of its obligations under this Guaranty by reason of any such
proceeding.
6. The obligations of Guarantor under this Guaranty are independent of
the obligations of any other guarantor or any Lessee, and a separate action or
actions may be brought and
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prosecuted against Guarantor whether or not action is brought against any other
guarantor or any Lessee and whether or not any other guarantor of any Lessee or
any Lessee is joined in any such action or actions.
7. Guarantor hereby waives notice of acceptance of this Guaranty and
notice of any liability to which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liabilities, suit or taking of other action by the Company against, and any
other notice to, any party liable thereon.
8. The Company may at any time and from time to time without the
consent of or notice to (provided the Company's action is not a material change
with respect to the terms herein, the Guaranteed Obligations, the Lease, or any
security therefor) Guarantor, without incurring responsibilities to Guarantor,
without impairing or releasing the obligations of Guarantor under this Guaranty
upon or without any terms or conditions and in whole or in part (but, in each
case, in accordance with the relevant document for a specific transaction as
described below):
(i) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the Guaranteed
Obligations, any security therefor, or any liability incurred directly or
indirectly in respect thereof, in each case in a manner that is not material,
and the guaranty made by this Guaranty will apply to the Guaranteed Obligations
as so changed, extended, renewed or altered;
(ii) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those under this Guaranty)
incurred directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst, provided that, any net proceeds derived therefrom are applied
first to offset the Guaranteed Obligations;
(iii) exercise or refrain from exercising any rights against
any Lessee or others or otherwise act or refrain from acting;
(iv) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those under this
Guaranty) incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Lessee to creditors of such Lessee;
(v) modify the Lease as necessary to comply with requirements
of third- party payors for health services provided by Lessees;
(vi) apply any sums by whomsoever paid or whomsoever realized
to any liability or liabilities under a Lease of any Lessee regardless of what
liabilities of such Lessee remain unpaid; and/or
(vii) consent to or waive any breach of, or any act, omission
or default under, any Lease or any of the instruments or agreements referred to
therein, or otherwise amend,
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modify or supplement any Lease or any of such other instruments or agreements.
9. No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations or of any security therefor will affect, impair or
be a defense to this Guaranty, and this Guaranty will be primary, absolute and
unconditional notwithstanding the occurrence of any event or the existence of
any other circumstances which might constitute a legal or equitable discharge of
surety or guarantor except payment in full of the Guaranteed Obligations.
10. This Guaranty is a continuing one, and all liabilities to which it
applies or may apply under the terms hereof will be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of the
Company in exercising any right, power or privilege under this Guaranty will
operate as a waiver thereof; nor will any single or partial exercise of any
right, power or privilege under this Guaranty preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies expressly specified in this Guaranty are cumulative and not
exclusive of any rights or remedies which the Company would otherwise have. No
notice to or demand on Guarantor in any case will entitle Guarantor to any other
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Company to any other or further action in any
circumstances without notice or demand. It is not necessary for the Company to
inquire into the capacity or powers of any Lessee or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers will be guaranteed by this Guaranty.
11. Any Indebtedness of any Lessee now or hereafter held by Guarantor
is hereby subordinated to the Indebtedness of such Lessee to the Company. Prior
to the transfer by Guarantor of any note or negotiable instrument evidencing any
Indebtedness of a Lessee to Guarantor, Guarantor shall xxxx such note or
negotiable instrument with a legend that the same is subject to this
subordination.
12. (a) Guarantor waives any right (except as may be required by this
Guaranty or by applicable statute and cannot be waived) to require the Company
to: (i) proceed against any Lessee, any other guarantor of any Lessee or any
other party; (ii) proceed against or exhaust any security held from any Lessee,
any other guarantor of any Lessee or any other party; or (iii) pursue any other
remedy in the Company's power whatsoever. Guarantor waives, to the extent
permitted by applicable law, any defense based on or arising out of any defense
of any Lessee, any other Guarantor, any other guarantor of the Company or any
other party other than payment in respect of the Guaranteed Obligations or that
the Guaranteed Obligations are not yet due and payable, including, without
limitation, any defense based on or arising out of the disability of any Lessee,
any other guarantor of any Lessee or any other person, or the unenforceability
of the Guaranteed Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of any Lessee other than payment in
respect of the Guaranteed Obligations. The Company may, at its election,
foreclose on any security held by the Company by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law), or exercise
any other right or remedy the Company may have against any Lessee or any other
party,
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or any security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid. In such case, Company will equitably apply proceeds received to Guarantor,
to the extent the Guarantor has made payment under such Lease.
(a) Guarantor waives, to the extent permitted by applicable
law, all presentments, demands for performance, protests and notices, including,
without limitation, notices of nonperformance, notices of protest, notices of
dishonor, notices of acceptance of this Guaranty, and notices of entering into
new Leases (unless otherwise specified herein or in the Light Source Agreement).
Guarantor agrees that the Company has no duty to advise any Guarantor of
information known to it regarding circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations.
(b) Until such time as the Guaranteed Obligations have been
paid in full in cash, Guarantor hereby waives all rights of subrogation which it
may at any time otherwise have as a result of this Guaranty (whether
contractual, under section 509 of the Bankruptcy Code, or otherwise) to the
claims of the Company against any Lessee or any other guarantor of the
Guaranteed Obligations and all contractual, statutory or common law rights of
reimbursement, contribution or indemnity from any Lessee or any other guarantor
which it may at any time otherwise have as a result of this Guaranty.
13. If and to the extent that Guarantor makes any payment to the
Company or to any other person pursuant to or in respect of this Guaranty, any
claim which Guarantor may have against any Lessee by reason thereof will be
subject and subordinate to the prior payment in full of the Guaranteed
Obligations with respect to such Lessee to the Company.
14. Guarantor hereby agrees to pay the Company, all reasonable
out-of-pocket costs and expenses of the Company in connection with the
enforcement of this Guaranty (including, without limitation, the reasonable fees
and disbursements of counsel employed by the Company).
15. This Guaranty is binding upon Guarantor and its successors and
assigns, and will inure to the benefit of the Company and its successors and
assigns; provided, however, that Guarantor may not assign or delegate its rights
and obligations under this Guaranty without the prior written consent of the
Company, which consent will not be unreasonably withheld.
16. Each of this Guaranty and the other Transaction Documents is the
result of negotiations among, and has been reviewed by, the Guarantor, the
Company and their respective counsel. Accordingly, this Guaranty and the other
Transaction Documents will be deemed to be the product of all parties hereto,
and no ambiguity may be construed in favor of or against Guarantor or the
Company.
17. Neither this Guaranty nor any of its provisions may be changed,
waived, discharged or terminated except with the written consent of the Company
and Guarantor.
18. (a) Guarantor shall remit payment of any Guaranteed Obligations
[c.i.] of receipt of demand, including supporting documentation, from the
Company. All such payments must be
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made by bank wire transfer of immediately available funds to an account
designated by the Company. All Guaranteed Obligations and all payments made
under this Guaranty must be made in United States of America dollars. Any
payments due from Guarantor which are not paid by the date such payments are due
under this Guaranty will bear interest to the extent permitted by applicable law
at the [c.i.] publicly announced by [c.i.] on [c.i.] on the date such payment is
due, [c.i.], computed on the basis of a 360 day year and the actual number of
days elapsed. The applicable interest rate will be adjusted each time there is a
change in the [c.i.] announced by [c.i.]. The foregoing provisions will in no
way limit any other remedies available to the Company against Guarantor.
(b) If any interest paid under this Guaranty is deemed to be
in excess of the then legal maximum rate, then that portion of the interest
payment representing an amount in excess of the then legal maximum rate will be
deemed to be a payment of Guaranteed Obligations, or if no Guaranteed
Obligations are then outstanding, such excess will be returned to Guarantor.
19. Guarantor represents and warrants that:
(a) it is a duly organized and validly existing corporation in
good standing under the laws of its jurisdiction of formation and has the
corporate power and authority to own its property and assets and to transact the
business in which it is engaged or presently proposes to engage;
(b) it has the corporate power and authority to execute,
deliver and carry out the terms and provisions of this Guaranty and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Guaranty;
(c) it has duly executed and delivered this Guaranty and this
Guaranty is a legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and general principles of equity;
(d) the execution and delivery by Guarantor of this Guaranty
and the performance and consummation of the transactions contemplated hereby and
thereby do not and will not (i) violate the charter documents of Guarantor, or
any judgment, order, writ, decree, statute, rule or regulation applicable to
Guarantor; (ii) violate any provision of, or result in the breach or
acceleration of, or entitle any other Person to accelerate (whether after the
giving of notice or lapse of time or both), any material mortgage, indenture,
agreement, instrument or contract to which Guarantor is a party or by which it
is bound; or (iii) result in the creation or imposition of a Lien upon any
property, asset or revenue of such Guarantor or the suspension, revocation,
impairment, forfeiture, or nonrenewal of any material permit, license,
authorization or approval applicable to Guarantor, its business or operations,
or any of its assets or properties;
(e) Guarantor acknowledges that an executed (or conformed)
copy of the form of Lease has been made available to its principal executive
officers and such officers are familiar with the contents thereof;
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(f) no order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
foreign or domestic governmental or public body or authority, or any subdivision
thereof, is required to authorize or is required as a condition to (i) the
execution, delivery and performance by Guarantor of this Guaranty, or (ii) the
legality, validity, binding effect or enforceability of this Guaranty;
(g) there are no actions, suits are proceedings pending or, to
the knowledge of the Guarantor, threatened with respect to Guarantor which
question the validity or enforceability of this Guaranty, or of any action to be
taken by Guarantor pursuant to this Guaranty; and
(h) as of the date of this Guaranty, (i) Guarantor has
received consideration which is the reasonable equivalent value of the
obligations and liabilities that Guarantor has incurred to the Company under
this Guaranty; (ii) Guarantor has capital sufficient to carry on its business
and transactions and all business and transactions in which it is about to
engage and is solvent and able to pay its debts as they mature; (iii) Guarantor
owns property having a value, both at fair valuation and at present fair salable
value, greater than the amount required to pay its debts; and (iv) Guarantor is
not entering into this Guaranty with the intent to hinder, delay or defraud its
creditors.
20. All notices, requests, demands, instructions or other
communications to or upon Guarantor or the Company under this Guaranty must be
in writing and mailed or delivered to each party at its telecopier number or its
address set forth below (or to such other telecopy number or address as the
recipient of any notice has notified the other parties in writing). All such
notices and communications will be effective (a) when sent by Federal Express or
other overnight service of recognized standing, on the Business Day following
the deposit with such service; (b) when mailed, by registered or certified mail,
first class postage prepaid and addressed as aforesaid through the United States
Postal Service, upon receipt; and (c) when delivered by hand, upon delivery; and
(d) when telecopied, upon confirmation of receipt.
Company: DUSA Pharmaceuticals, Inc.
00 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: D. Xxxxxxxx Xxxxxxx
Fax: 000-000-0000
Guarantor: Xxxxxxxx XX
X-00000
Xxxxxx, Xxxxxxx
Attn: Head, Center of Dermatology
With copy to: Xxxxxxxx XX
X-00000
Xxxxxx, Xxxxxxx
Attn: Legal Department
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21. If claim is ever made upon the Company for repayment or recovery of
any amount or amounts received in payment or on account of any of the Guaranteed
Obligations and the Company repays all or part of said amount by reason of (i)
any judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including any Lessee), then in such event Guarantor agrees that any such
judgment, decree, order, settlement or compromise will be binding upon
Guarantor, notwithstanding any revocation hereof or other instrument evidencing
any liability of any Lessee, and Guarantor will be and remain liable to the
Company under this Guaranty for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by the Company.
22. Should [c.i.] occur [c.i.] and not be [c.i.] within any applicable
[c.i.] this Guaranty shall [c.i.] and [c.i.].
23. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE CREDITORS
AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO
CONFLICTS OF LAWS PRINCIPLES. ANY LEGAL ACTION BETWEEN THE GUARANTOR AND THE
COMPANY UNDER THIS GUARANTY MAY BE BROUGHT IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK.
24. Nothing herein shall be construed as granting any third-party
beneficiary rights to any third-party.
25. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
The undersigned has executed this Guaranty as of the date first above
written.
SCHERING AKTIENGESELLSCHAFT
By: /s/ Xxxxx Xxxxx
Name: Xxxx. Xxxxx Xxxxx
Title: Vice Chairman of the Board of
Executive Directors
By: /s/ Xxxx Xxxxx
Name: Xx. Xxxx Xxxxx
Title: Head of Center of Dermatology
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Accepted and
agreed as of the
date first above
written:
DUSA Pharmaceuticals, Inc.
By: /s/ D. Xxxxxxxx Xxxxxxx
________________________________
Name: D. Xxxxxxxx Xxxxxxx, MD. FRCPC
Title: President and Chief Executive
Officer
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EXHIBIT 1
FORM OF LEASE
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EQUIPMENT LEASE
This Equipment Lease (this "LEASE"), dated as of _____________, is made by and
between DUSA Pharmaceuticals, Inc., a New Jersey corporation (the "LESSOR"), and
__________________ (the "LESSEE").
1. Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor one BLU-U(TM) light device, having a serial number of
______________________ (the "LIGHT SOURCE"), upon the terms
and conditions set forth in this Lease.
2. This Lease will have a term beginning on the date hereof and
ending on the date specified by either Lessor or Lessee giving
the other party [c.i.] that it desires to terminate this
Lease.
3. The rent for the Light Source under this Lease (the "Rent") is
[c.i.] per month payable on the [c.i.] of the month. The Rent
for any period which is less than a calendar month will be
prorated on a daily basis. The first monthly installment of
Rent is due and payable by the Lessee to the Lessor on the
date that the Light Source is delivered to the Lessee. Rent
shall be delivered to [____].
4. Lessee shall use the Light Source solely for medical treatment
of humans in conjunction with Levulan(R) and the Kerastick(TM)
applicator, or as the Lessor may otherwise expressly authorize
in the conduct of its business and in a careful and proper
manner, and shall not part with possession of or enter into
any sublease or assignment with respect to the Light Source
without the prior written consent of the Lessor. Lessee shall
not transport, or cause to be transported, the Light Source to
a different location without the Lessor's consent.
5. Lessor, at its own cost and expense, shall keep the Light
Source in good repair, condition and working order, subject to
normal wear and tear, and shall furnish or cause to be
furnished any and all parts and labor required for such
purposes. However, Lessee shall promptly notify Lessor of the
need for maintenance of the Light Source as indicated by the
Light Source itself.
6. From and after the date of this Lease, Lessor will, at its
sole cost and expense, keep and maintain policies of insurance
on the Light Source against damage by fire, windstorm, water,
flood, and boiler and machinery and against loss or damage by
other risks and perils now embraced by the so-called
"all-risk" endorsement in the amount of the full replacement
value of the Light Source.
7. This Lease incorporates the terms and conditions set forth on
the back of this page, which are made a part of this Lease by
this reference. The Lessee has read and understood these terms
and conditions.
The Lessor and the Lessee have executed this Lease as of the date first
above written.
DUSA Pharmaceuticals, Inc.
By: ___________________________
Name:
Title:
Address:_______________________
_______________________
Attn:___________________________
Facsimile No.: ___________________
[Lessee]
By: ____________________________
Name:
Title:
Address:________________________
________________________
Attn: ________________________
Facsimile No.:__________________
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1. The Light Source will initially be located at Lessee's address
set forth in the signature block hereof and may be removed
from such location upon Lessee's compliance with the
following: (a) Lessee shall provide Lessor with 30 days prior
written notice of its intent to move the Light Source and the
place where the Light Source is to be moved and (b) Lessee
shall, before relocating such items, execute and deliver to
Lessor such documents and instruments as Lessor may reasonably
require.
2. Lessee shall not make any alterations to the Light Source
without the prior written consent of the Lessor.
3. All parts which are added or that become attached to the Light
Source will immediately become the property of the Lessor and
will be deemed to be incorporated in the Light Source and
subject to the terms of this Lease as if originally leased
hereunder.
4. Lessor hereby assumes and shall bear the entire risk of direct
loss and damage to the Light Source from any and every cause
whatsoever, except for willful or malicious acts, or gross
negligence by the Lessee. Notwithstanding the foregoing,
Lessor will not incur any liability to Lessee for any loss of
business, loss of profits, expense or any of the damages
resulting to the Lessee by reason of any delay caused by any
non-performance, defective performance or breakdown of the
Light Source, nor will Lessor at any time be responsible for
personal injury or the loss or destruction of any other
property resulting from the Equipment.
5. In the event of any loss, theft or damage of any kind
whatsoever to the Light Source, Lessee shall give prompt
written notice to the Lessor of such loss, theft or damage and
Lessor shall, at Lessee's option, either (a) at Lessor's
expense, place the Light Source in good repair, condition and
working order or (b) terminate this Lease.
6. Lessee shall keep the Light Source free and clear of all
levies, liens, encumbrances and charges or other judicial
process of every kind whatsoever and shall pay all license
fees, registration fees, assessments, charges, permit fees and
taxes which may now or hereafter be imposed on the leasing,
renting, possession or use of the Light Source, excluding all
taxes on or measured by Lessor's income.
7. Title to the Light Source will at all times during the term of
this Lease remain in Lessor. Lessee will cooperate with
Lessor, and take any action deemed necessary by Lessor to
enable Lessor to file, register or record this Lease or any
UCC-1 financing statement in such offices as Lessor may
determine and wherever required or permitted by law for the
protection of Lessor's title to the Light Source.
8. The occurrence of any of the following events constitutes an
event of default (an "EVENT OF DEFAULT") by Lessee under this
Lease: (a) Lessee fails to pay when due any Rent owing to the
Lessor [AND SUCH FAILURE CONTINUES FOR __ DAYS BEYOND THE DATE
DUE] or (b) Lessee fails or neglects to perform, keep or
observe any term, provision, condition or covenant contained
in this Lease [and such failure remains unremedied for [__]
days following Lessee's receipt of written notice of such
failure from the Lessor].
9. Upon the occurrence and during the continuance of an Event of
Default, Lessor at its election may do one or more of the
following: (a) declare all unpaid Rent or other amounts owing
under the Lease immediately due and payable and recover such
amounts; (b) with or without notice, demand or legal process,
retake possession of the Light Source (Lessee hereby
authorizes and empowers Lessor to enter upon the premises
wherever the Light Source may be found) and retain the Light
Source or re-lease the Light Source; and (c) pursue any other
remedy permitted at law or in equity.
10. Upon termination of this Lease, Lessee shall return the Light
Source and any additions thereto to the Lessor in good repair,
condition and working order, ordinary wear and tear resulting
from the proper use thereof excepted, by delivering the Light
Source at Lessor's cost and expense to such place as the
Lessor designates to the Lessee.
11. All notices, requests, demands and other communications under
this Lease must be in writing and must be delivered by hand,
sent by facsimile or sent by a nationally recognized overnight
delivery service to the addresses of the Lessor and the Lessee
set forth below their signatures or to such other address as
either party may designate to the other in writing in
compliance with this paragraph 11.
12. Lessee will not sell, assign, transfer, pledge, sublease,
encumber or otherwise dispose of the Light Source. All rights
of the Lessor under this Lease may be assigned, pledged,
mortgaged, or otherwise transferred or hypothecated, either in
whole or in part, without affecting the obligation of Lessee
under this Lease so long as the transferee assumes Lessor's
obligations under this Lease.
13. This Lease will be governed by and construed in accordance
with the laws of the State of New York, without giving effect
to principles of conflicts of laws.
14. This Lease may not be changed or terminated orally. All prior
agreements, understanding, representations,
14
warranties and negotiations, if any, are merged into this
Lease. Each provision of this Lease will be severable from
every other provision of this Lease for the purpose of
determining the legal enforceability of any specific
provision.
