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EXHIBIT 10.49
9400CLSGMasterLease
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of September 18, 1996,
("AGREEMENT"), between GENERAL ELECTRIC CAPITAL CORPORATION, with an office at
0 XXXXX XXXX XXXXX, XXXXX 000, XXXX XXXXXX, XXXXXXXX 00000, (hereinafter
called, together with its successors and assigns, if any, "LESSOR"), and
GUILFORD PHARMACEUTICALS INC., a CORPORATION, organized and existing under the
laws of the State of DELAWARE, with its mailing address and chief place of
business at 0000 XXXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXX 00000 (hereinafter
called "LESSEE").
WITNESSETH:
I. LEASING:
(a) Subject to the terms and conditions set forth below, Lessor
agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the
equipment ("EQUIPMENT") described in Annex A to any schedule hereto
("SCHEDULE") and this Agreement shall be effective from and after the date of
execution hereof. Terms defined in a Schedule and not otherwise defined herein
shall have the meanings ascribed to them in such Schedule.
(b) The obligation of Lessor to purchase Equipment from the
manufacturer or supplier thereof ("SUPPLIER",) and to lease the same to Lessee
under any Schedule shall be subject to receipt by Lessor, prior to the Lease
Commencement Date (with respect to such Equipment), of each of the following
documents in form and substance satisfactory to Lessor: (i) a Schedule
relating to the Equipment then to be leased hereunder; provided however, that
no Schedule shall be for an amount less than $250,000.00, (ii) a Purchase Order
Assignment and Consent in the form of Annex B to the applicable Schedule,
unless Lessor shall have delivered its purchase order for such Equipment, (iii)
evidence of insurance which complies with the requirements of Section X, and
(iv) such other documents as Lessor may reasonably request. As a further
condition to such obligations of Lessor, Lessee shall, upon delivery of such
Equipment (but not later than the Last Delivery Date specified in the
applicable Schedule) execute and deliver to Lessor a Certificate of Acceptance
(in the form of Annex C to the applicable Schedule) covering such Equipment.
Lessor hereby appoints Lessee its agent for inspection and acceptance of the
Equipment from the Supplier. Upon execution by Lessee of any Certificate of
Acceptance, the Equipment described thereon shall be deemed to have been
delivered to, and irrevocably accepted by, Lessee for lease hereunder.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder and Lessee's right to use the Equipment
shall commence on the date of execution by Lessee of the Certificate of
Acceptance for such Equipment ("LEASE COMMENCEMENT DATE"). The term of this
Agreement shall be the period specified in the applicable Schedule. If any
term is extended, the word "TERM" shall be deemed to refer to all extended
terms, and all provisions of this Agreement shall apply during any extended
terms, except as may be otherwise specifically provided in writing.
(b) Rent shall be paid to Lessor at its address stated above, except as
otherwise directed by Lessor. Payments of rent shall be in the amount set
forth in, and due in accordance with, the provisions of the applicable
Schedule. If one or more Advance Rentals are payable, such Advance Rental
shall be (i) set forth on the applicable Schedule, (ii) due upon acceptance by
Lessor of such Schedule, and (iii) when received by Lessor, applied to the
first rent payment and the balance, if any, to the final rental payment(s)
under such Schedule. In no event shall any Advance Rental or any other rent
payments be refunded to Lessee. If rent is not paid within ten days of its due
date, Lessee agrees to pay a late charge of five cents ($.05) per dollar on,
and in addition to, the amount of such rent but not exceeding the lawful
maximum, if any.
(c) So long as no default shall have occurred and be continuing under
the terms of this agreement, neither Lessor nor its agents, employees,
creditors, or assigns will disturb Lessee's quiet, peaceful and uninterrupted
possession of the Equipment during the term of this Lease and Lessee's
uninterrupted use thereof for its intended purpose.
III. RENT ADJUSTMENT:
(a) The periodic rent payments in each Schedule have been calculated on
the assumption (which, as between Lessor and Lessee, is mutual) that the
maximum effective corporate income tax rate (including any surcharge but
exclusive of any minimum tax rate) for calendar-year taxpayers ("EFFECTIVE
RATE") will be thirty-five percent (35%) for each year of the lease term.
(b) If, solely as a result of Congressional enactment of any law
(including, without limitation, any modification of, or amendment or addition
to, the Internal Revenue Code of 1986 ("CODE"), the Effective Rate is higher
than thirty-five percent (35%) for any year during the lease term, then Lessor
shall have the right to increase such rent payments by requiring payment of a
single additional sum equal to the product of (i) the Effective Rate (expressed
as a decimal) for such year less .35 (or, in the event that any adjustment has
been made hereunder for any previous year, the Effective Rate (expressed as a
decimal) used in calculating the next previous adjustment) times (ii) the
adjusted Stipulated Loss Value divided by the difference between the new
Effective Tax Rate (expressed as a decimal) and one (1). The adjusted
Stipulated Loss Value shall be the Stipulated Loss Value (calculated
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as of the first rental due in the year for which such adjustment is being made)
less the product of the Tax Benefits that would be allowable under Section 168
of the Code (as of the first day of the year for which such adjustment is being
made and all subsequent years of the lease term). Lessee shall pay to Lessor
the full amount of the additional rent payment on the later of (i) receipt of
notice or (ii) the first day of the year for which such adjustment is being
made.
(c) Lessee's obligations under this Section III shall survive any
expiration or termination of this Agreement.
IV. TAXES: Except as provided in Sections III and XV(c), Lessee shall have no
liability for taxes imposed by the United States of America or any State or
political subdivision thereof which are on or measured by the net income of
Lessor. Lessee shall report (to the extent that it is legally permissible) and
pay promptly all other taxes, fees and assessments due, imposed, assessed or
levied against any Equipment (or the purchase, ownership, delivery, leasing,
possession, use or operation thereof), this Agreement (or any rentals or
receipts hereunder), any Schedule, Lessor or Lessee by any foreign, federal,
state or local government or taxing authority during or related to the term of
this Agreement, including, without limitation, all license and registration
fees, and all sales, use, personal property, excise, gross receipts, franchise,
stamp or other taxes, imposts, duties and charges, together with any penalties,
fines or interest thereon (all hereinafter called "TAXES"); provided, however,
that the foregoing shall not apply to any taxes or portion thereof of which
Lessee is contesting the validity. Lessee shall (i) reimburse Lessor upon
receipt of written request for reimbursement for any Taxes charged to or
assessed against Lessor, (ii) on request of Lessor, submit to Lessor written
evidence of Lessee's payment of Taxes, (iii) on all reports or returns show the
ownership of the Equipment by Lessor, and (iv) send a copy thereof to Lessor.
The obligations of Lessee under this Section IV shall survive any expiration or
termination of this Agreement.
V. REPORTS:
(a) Lessee will notify Lessor in writing, within ten (10) days after
any tax or other lien shall attach to any Equipment, of the full particulars
thereof and of the location of such Equipment on the date of such notification.
(b) Lessee will within one hundred twenty (120) days of the close of
each fiscal year of Lessee, deliver to Lessor, Lessee's complete financial
statements, certified by a recognized firm of certified public accountants.
Lessee will, within sixty (60) days after the date on which they are filed,
deliver to Lessor all Forms 10-K and 10-Q filed with the Securities and
Exchange Commission and that so long as Lessee is a reporting company under
Section 13 or 15 of the Securities Exchange Act of 1934, shall be entitled to
submit such Forms 10-K in lieu of the financial statements required by the
immediate preceding sentence. Upon request Lessee will deliver to Lessor
quarterly, within one hundred twenty (120) days of the close of each fiscal
quarter of Lessee, in reasonable detail, copies of Lessee's quarterly financial
report certified by the chief financial officer of Lessee (which obligation
shall be met by the delivery of Lessee's Form 10-Q covering the period in
question.). Upon request, Lessee will deliver to Lessor one copy of each
financial statement, report, notice or proxy statement sent by Lessee to
shareholders generally and one copy of each regular or periodic report,
registration statement or prospectus filed by Lessee with any securities
exchange or the Securities and Exchange Commission or any successor agency,
such copies to be delivered to Lessor within thirty (30) days after they become
available or are otherwise filed.
(c) Lessee will permit Lessor at its sole cost and expense (unless
Lessee is in default, in which case such costs shall be borne by Lessee) to
inspect any Equipment during normal business hours.
(d) Lessee will keep the Equipment at the Equipment Location (specified
in the applicable Schedule) and will give Lessor prior written notice of any
relocation of Equipment. Upon the written request of Lessor, Lessee will
notify Lessor forthwith in writing of the location of any Equipment as of the
date of such notification.
(e) Lessee will promptly and fully report to Lessor in writing if any
Equipment is lost or damaged (where the estimated repair costs would exceed ten
percent (10%) of its then fair market value), or is otherwise involved in an
accident causing personal injury or property damage estimated to exceed
$50,000..
(f) Within thirty (30) days after any request by Lessor, Lessee will
furnish a certificate of an authorized officer of Lessee stating that he has
reviewed the activities of Lessee and that, to the best of his knowledge, there
exists no default (as described in Section XII) or event which with notice or
lapse of time (or both) would become such a default.
VI. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the Supplier to
Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in
the conduct of its business and in a manner complying with all applicable
federal, state, and local laws and regulations and any applicable insurance
policies and Lessee shall not permanently discontinue use of the Equipment
(unless such permanent discontinuance shall not prevent the Equipment from
performing the functions for which it was originally designed, in accordance
with the manufacturer's published and recommended specifications).
(c) LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR HYPOTHECATE ANY
EQUIPMENT, OR THE INTEREST OF LESSEE HEREUNDER, NOR SHALL LESSEE REMOVE ANY
EQUIPMENT FROM THE CONTINENTAL UNITED STATES, WITHOUT THE PRIOR WRITTEN CONSENT
OF THE LESSOR.
(d) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor.
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VII. SERVICE:
(a) Lessee will, at its sole expense, maintain each unit of Equipment
in good operating order, repair, condition and appearance in accordance with
manufacturer's recommendations, normal wear and tear excepted. Lessee shall,
if at any time requested by Lessor, affix in a prominent position on each unit
of Equipment plates, tags or other identifying labels showing ownership thereof
by Lessor.
(b) Lessee will not, without the prior consent of Lessor, affix or
install any accessory, equipment or device on any Equipment if such addition
will impair the originally intended function or use of such Equipment. All
additions, repairs, parts, supplies, accessories, equipment, and devices
furnished, attached or affixed to any Equipment which are not readily removable
shall be made only in compliance with applicable law, including Internal
Revenue Service guidelines, shall be free and clear of all liens, encumbrances
or rights of others, and shall become the property of Lessor. Lessee will not,
without the prior written consent of Lessor and subject to such conditions as
Lessor may impose for its protection, affix or install any Equipment to or in
any other personal or real property.
(c) Any alterations or modifications to the Equipment that may, at any
time during the term of this Agreement, be required to comply with any
applicable law, rule or regulation shall be made at the expense of Lessee.
VIII. STIPULATED LOSS VALUE: Lessee shall promptly and fully notify Lessor in
writing if any unit of Equipment shall be or become worn out, lost, stolen,
destroyed, irreparably damaged in the reasonable determination of Lessee, or
permanently rendered unfit for use from any cause whatsoever (such occurrences
being hereinafter called "CASUALTY OCCURRENCES"). On the rental payment date
next succeeding a Casualty Occurrence (the "PAYMENT DATE"), Lessee shall pay
Lessor the sum of (x) the Stipulated Loss Value of such unit calculated as of
the rental next preceding such Casualty Occurrence ("CALCULATION DATE") and (y)
all rentals and other amounts which are due hereunder as of the Payment Date.
Upon payment of all sums due hereunder, the term of this lease as to such unit
shall terminate and (except in the case of the loss, theft or complete
destruction of such unit) Lessor shall be entitled to recover possession of
such unit.
IX. LOSS OR DAMAGE: Lessee hereby assumes and shall bear the entire risk of
any loss, theft, damage to, or destruction of, any unit of Equipment from any
cause whatsoever from the time the Equipment is shipped to Lessee.
X. INSURANCE: Lessee agrees, at its own expense, to keep all Equipment
insured for such amounts and against such hazards as Lessor may reasonably
require, including, but not limited to, insurance for damage to or loss of such
Equipment and liability coverage for personal injuries, death or property
damage, with Lessor named as additional insured and with a loss payable clause
in favor of Lessor, as its interest may appear, irrespective of any breach of
warranty or other act or omission of Lessee. All such policies shall be with
companies, and on terms, reasonablly, satisfactory to Lessor. Lessee agrees to
deliver to Lessor evidence of insurance satisfactory to Lessor. No insurance
shall be subject to any co-insurance clause. Lessee hereby appoints Lessor as
Lessee's attorney-in-fact to make proof of loss and claim for insurance, and to
make adjustments with insurers and to receive payment of and execute or endorse
all documents, checks or drafts in connection with payments made as a result of
such insurance policies. Any reasonable expense of Lessor in adjusting or
collecting insurance shall be borne by Lessee. Lessee will not make
adjustments with insurers except (i) with respect to claims for damage to any
unit of Equipment where the repair costs do not exceed ten percent (10%) of
such unit's fair market value, or (ii) with Lessor's written consent. Said
policies shall provide that the insurance may not be altered or cancelled by
the insurer until after thirty (30) days' written notice to Lessor. Lessor
may, at its option, apply proceeds of insurance, in whole or in part, to (i)
repair or replace Equipment or any portion thereof, or (ii) satisfy any
obligation of Lessee to Lessor hereunder.
XI. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or any
Schedule, Lessee shall promptly, at its own cost and expense: (i) perform any
testing and repairs required to place the affected units of Equipment in the
same condition and appearance as when received by Lessee (reasonable wear and
tear excepted) and in good working order for their originally intended purpose;
(ii) if deinstallation, disassembly or crating is required, cause such units to
be deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is satisfactory to Lessor; and
(iii) return such units to a location within the continental United States as
Lessor shall direct.
(b) Until Lessee has fully complied with the requirements of Section
XI(a) above, Lessee's rent payment obligation and all other obligations under
this Agreement shall continue from month to month notwithstanding any
expiration or termination of the lease term. Lessor may terminate such
continued leasehold interest upon ten (10) days' notice to Lessee.
XII. DEFAULT:
(a) Lessor may in writing declare this Agreement in default if: Lessee
breaches its obligation to pay rent or any other sum when due and fails to cure
the breach within ten (10) days; Lessee breaches any of its insurance
obligations herewith under Section X; Lessee breaches any of its other
obligations hereunder and fails to cure that breach within thirty (30) days
after written notice thereof; any representation or warranty made by or on
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behalf of Lessee in connection with this Agreement shall be false or misleading
in any material respect; Lessee or any guarantor becomes insolvent or ceases to
do business as a going concern; any Equipment is knowlingly illegally used; a
petition is filed by or against Lessee or any guarantor under any bankruptcy or
insolvency laws (which petition against Lessee is not dismissed within 60 days
of its filing); there is a revocation or anticipatory repudiation of any
guarantor's obligations under any guaranty issued in connection with this
Agreement; Lessee or any guarantor shall be in default under any material
obligation and the applicable grace period with respect thereto shall have
expired; Lessee or any guarantor shall have terminated its existence,
consolidated with, merged into or conveyed or leased substantially all of its
assets as an entirety to any person (such actions being referred to as an
"EVENT"), unless not less than sixty (60) days prior to such Event: (x) such
person is organized and existing under the laws of the United States or any
state, and executes and delivers to Lessor an agreement containing an effective
assumption by such person of the due and punctual performance of this Lease or
guaranty thereof, as the case may be, and (y) Lessor is reasonably satisfied as
to the credit worthiness of such person; if Lessee or any guarantor is a
privately held corporation and effective control of Lessee's or any guarantor's
voting capital stock, issued and outstanding from time to time, is not retained
by the present stockholders (unless Lessee shall have provided sixty (60) days'
prior written notice to Lessor of the proposed disposition of stock and Lessor
shall have consented thereto in writing); or if Lessee or any guarantor is a
publicly held corporation as a result of or in connection with a material
change in the ownership of Lessee's or any guarantor's capital stock, Lessee's
or any guarantor's debt-to-worth ratio equals or exceeds twice Lessee's or any
guarantor's debt-to-worth ratio as of the date of this Lease (unless Lessor
shall have given its prior written consent thereto), if Lessee or any guarantor
is a natural person, any death or incompetency of Lessee or such guarantor. As
used herein, "DEBT-TO-WORTH RATIO" shall mean the ratio of (x) total
liabilities which, in accordance with United States generally accepted
accounting principles ("GAAP") would be included in the liability side of a
balance sheet, to (y) tangible net worth including the sum of the par or stated
value of all outstanding capital stock, surplus and undivided profits, less any
amounts attributable to goodwill, patents, copyrights, mailing lists, catalogs,
trademarks, bond discount and underwriting expenses, organization expense and
other intangibles, all determined in accordance with GAAP. Any provision of
this Agreement to the contrary notwithstanding, Lessor may exercise all rights
and remedies hereunder independently with respect to each Schedule.
(b) After default, at the request of Lessor, Lessee shall comply with
the provisions of Section XI(a). Lessee hereby authorizes Lessor to enter,
with legal process, any premises where any Equipment is believed to be and take
possession thereof. Lessee shall, without further demand, forthwith pay to
Lessor as liquidated damages for loss of a bargain and not as a penalty, the
Stipulated Loss Value of the Equipment (calculated as of the rental date next
preceding the declaration of default), and all rentals and other sums then due
hereunder. After notice of default, Lessor may terminate this Agreement as to
any or all of the Equipment, provided that a termination shall occur only upon
written notice by Lessor to Lessee and only as to the items of Equipment
specified in any such notice. Lessor may, but shall not be required to, sell
Equipment at private or public sale, in bulk or in parcels, with or without
notice, and without having the Equipment present at the place of sale; or
Lessor may, but shall not be required to, lease, otherwise dispose of or keep
idle all or part of the Equipment; and Lessor may use Lessee's premises during
reasonable hours and in a reasonable manner for any or all of the foregoing
without liability for rent, costs, damages or otherwise, except to the extent
caused by Lessor's gross negligence or willful misconduct. The proceeds of
sale, lease or other disposition, if any, shall be applied in the following
order of priorities: (1) to pay all of Lessor's costs, charges and expenses
incurred in taking, removing, holding, repairing and selling, leasing or
otherwise disposing of Equipment; then, (2) to the extent not previously paid
by Lessee, to pay Lessor all sums due from Lessee hereunder; then (3) to
reimburse to Lessee any sums previously paid by Lessee as liquidated damages;
and (4) any surplus shall be retained by Lessor. Lessee shall pay any
deficiency in (1) and (2) forthwith.
(c) The foregoing remedies are cumulative, and any or all thereof may
be exercised in lieu of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of sale or other disposition
(and the time and place thereof), and the manner and place of any advertising.
Lessee shall pay Lessor's reasonable attorney's fees incurred in connection
with the enforcement, assertion, defense or preservation of Lessor's rights and
remedies hereunder, or if prohibited by law, such lesser sum as may be
permitted. Waiver of any default shall not be a waiver of any other or
subsequent default.
XIII. ASSIGNMENT: Lessor may, without the consent of Lessee, assign this
Agreement or any Schedule or any interests therein. Lessee agrees that if
Lessee receives written notice of an assignment from Lessor, Lessee will pay
all rent and all other amounts payable under any assigned Equipment Schedule to
such assignee or as instructed by Lessor. Lessee further agrees to confirm in
writing receipt of the notice of assignment as may be reasonably requested by
assignee. Lessee hereby waives and agrees not to assert against any such
assignee any defense, set-off, recoupment claim or counterclaim which Lessee
has or may at any time have against Lessor for any reason whatsoever.
XIV. NET LEASE; NO SET-OFF, ETC: This Agreement is a net lease. Lessee's
obligation to pay rent and other amounts due hereunder shall be absolute and
unconditional. Lessee shall not be entitled to any abatement or reductions of,
or set-offs against, said rent or other amounts, including, without limitation,
those arising or allegedly arising out of claims (present or future, alleged or
actual, and including claims arising out of strict tort or negligence of
Lessor) of Lessee against Lessor under this Agreement or otherwise. Nor shall
this Agreement terminate or the obligations of Lessee be affected by reason of
any defect in or damage to, or loss of possession, use or destruction of, any
Equipment from whatsoever cause. It is the intention of the parties that rents
and other amounts due hereunder shall continue to be payable in all events in
the manner and at the times set forth herein unless the obligation to do so
shall have been terminated pursuant to the express terms hereof.
XV. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify, save and keep harmless Lessor,
its agents, employees, successors and assigns from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including
reasonable legal expenses, of whatsoever kind and nature, in contract
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or tort or otherwise, unless caused by the gross negligence or willful
misconduct of Lessor, and including, but not limited to, Lessor's strict
liability in tort, arising out of (i) the selection, manufacture, purchase,
acceptance or rejection of Equipment, the ownership of Equipment during the
term of this Agreement, and the delivery, lease, possession, maintenance, uses,
condition, return or operation of Equipment (including, without limitation,
latent and other defects, whether or not discoverable by Lessor or Lessee and
any claim for patent, trademark or copyright infringement or environmental
damage) or (ii) the condition of Equipment sold or disposed of after use by
Lessee, any sublessee or employees of Lessee. Lessee shall, upon request,
defend any actions based on, or arising out of, any of the foregoing.
(b) The Lease has been entered into on the assumption that (i) the
Lease will be treated for federal income tax purposes as a true lease and the
Lessor will be treated as the owner and lessor of the Equipment and the Lessee
will be treated as the lessee of the Equipment, and (ii) on the Lease
Commencement Date for any unit of Equipment, such unit will qualify for all of
the items of deduction and credit specified in Section C of applicable Schedule
("TAX BENEFITS") in the hands of Lessor (all references to Lessor in this
Section XV include Lessor and the consolidated tax payer group of which Lessor
is a member).
(c) If for any reason whatsoever (i) tax counsel of Lessor shall
determine that Lessor is not entitled to claim on its federal income tax return
all or any portion of the Tax Benefits with respect to any Equipment or (ii)
any such Tax Benefit claimed on the federal income tax return of Lessor is
disallowed or adjusted by the Internal Revenue Service or (iii) any such Tax
Benefit is recomputed or recaptured (any such determination, disallowance,
adjustment, recomputation or recapture being hereinafter called a "LOSS"), then
Lessee shall pay to Lessor, as additional rent (and not as additional
indemnity), such amount as shall, in the reasonable opinion of Lessor, cause
Lessor's after-tax economic yields and cash flows, computed on the same
assumptions, including tax rates (unless any adjustment has been made under
Section III hereof, in which case the Effective Rate used in the next preceding
adjustment shall be substituted), and were utilized by Lessor in originally
evaluating the transaction (such yields and flows being hereinafter called the
"NET ECONOMIC RETURN") to equal the Net Economic Return that would have been
realized by Lessor if such Loss had not occurred. Such amount shall be payable
upon demand accompanied by a statement (and if requested by Lessee, certified
in writing by Lessor's nationally recognized accounting firm) describing in
reasonable detail such Loss and the computation of such amount. If Lessee
requests that the statement be certified by the accounting firm such
certification shall be at Lessee's expense unless the amount due by Lessee, as
certified by the accounting firm, is lower by twenty percent (20%) or more than
the amount requested by Lessor. Anything in this paragraph to the contrary
notwithstanding, Lessee shall have no obligation to pay Lessor for any such
Loss to the extent that such Loss is caused by: (i) any failure by Lessor to
properly or timely claim on its federal income tax return any Tax Benefits on
any Equipment (unless such failure is based upon a determination by tax counsel
of Lessor that Lessor is not entitled to claim such Tax Benefits with respect
to such Equipment); (ii) any failure of Lessor to have sufficient taxable
income to benefit from the Tax Benefits; (iii) any liability of the Lessor for
any alternative minimum taxes; (iv) the status of Lessor for purposes of
federal income taxes; (v) any sale or other disposition of any Equipment by
Lessor other than after an event of default by Lessee; (vi) any tax election
made or not made by Lessor relating to the Tax Benefits; or (vii) any event
which results in a payment by Lessee in an amount equal to, or measured by, the
Stipulated Loss Value to the extent that such Loss was included in Lessor's
calculation of such Stipulated Loss Value.
(d) All of Lessor's rights, privileges and indemnities contained in
this Section XV shall survive the expiration or other termination of this
Agreement and the rights, privileges and indemnities contained herein are
expressly made for the benefit of, and shall be enforceable by Lessor, its
successors and assigns.
XVI. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT
WITHOUT ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT
MAKE, HAS NOT MADE, NOR SHALL LESSOR BE DEEMED TO MAKE OR HAVE MADE, ANY
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH
RESPECT TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR
TITLE. All such risks, as between Lessor and Lessee, are to be borne by
Lessee. Without limiting the foregoing, Lessor shall have no responsibility or
liability to Lessee or any other person with respect to any of the following,
regardless of any negligence of Lessor (i) any liability, loss or damage caused
or alleged to be caused directly or indirectly by any Equipment, any inadequacy
thereof, any deficiency or defect (latent or otherwise) therein, or any other
circumstance in connection therewith; (ii) the use, operation or performance of
any Equipment or any risks relating thereto; (iii) any interruption of service,
loss of business or anticipated profits or consequential damages; or (iv) the
delivery, operation, servicing, maintenance, repair, improvement or replacement
of any Equipment unless such loss arises from Lessor's gross negligence or
willful misconduct. If, and so long as, no default exists under this Lease,
Lessee shall be, and hereby is, authorized during the term of this Lease to
assert and enforce, at Lessee's sole cost and expense, from time to time, in
the name of and for the account of Lessor and/or Lessee, as their interests may
appear, whatever claims and rights Lessor may have against any Supplier of the
Equipment.
XVII. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents and
warrants to Lessor that on the date hereof and on the date of execution of each
Schedule:
(a) Lessee has adequate power and capacity to enter into, and perform
under, this Agreement and all related documents (together, the "DOCUMENTS") and
is duly qualified to do business wherever necessary to carry on its present
business and operations, including the jurisdiction(s) where the Equipment is
or is to be located.
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(b) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies therein provided may be limited under applicable bankruptcy and
insolvency laws and principals of equity.
(c) No approval, consent or withholding of objections is required from
any governmental authority or instrumentality with respect to the entry into or
performance by Lessee of the Documents except such as have already been
obtained.
(d) The entry into and performance by Lessee of the Documents will not:
(i) violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee's Certificate of Incorporation or By-Laws; or (ii) result
in any breach of, constitute a default under or result in the creation of any
lien, charge, security interest or other encumbrance upon any Equipment
pursuant to any indenture, mortgage, deed of trust, bank loan or credit
agreement or other instrument (other than this Agreement) to which Lessee is a
party.
(e) There are no suits or proceedings pending or to Lessee's knowledge
threatened in court or before any commission, board or other administrative
agency against or affecting Lessee, which if decided adversely will have a
material adverse effect on the ability of Lessee to fulfill its obligations
under this Agreement.
(f) The Equipment accepted under any Certificate of Acceptance is and
will remain tangible personal property.
(g) Each financial statement delivered to Lessor has been prepared in
accordance with GAAP consistently applied, and since the date of the most
recent such financing statement, there has been no material adverse change.
(h) Lessee is and will be at all times validly existing and in good
standing under the laws of the State of its incorporation (specified in the
first sentence of this Agreement).
(i) The Equipment will at all times be used for commercial or business
purposes.
XVIII. PURCHASE OPTION:
(a) So long as no default exists hereunder and the lease has not been
earlier terminated, Lessee may at lease expiration, upon at least ninety (90)
days' prior written notice to Lessor, purchase all (but not less than all) of
the Equipment in any Schedule on an AS IS, WHERE IS BASIS without recourse to
or warranty from Lessor, express or implied ("AS IS BASIS") for cash equal to
its then Fair Market Value (plus all applicable sales taxes).
(b) "FAIR MARKET VALUE", shall mean the price which a willing buyer
(who is neither a lessee in possession nor a used equipment dealer) would pay
for the Equipment in an arm's-length transaction to a willing seller under no
compulsion to sell; provided , however , that in such determination: (i) the
Equipment shall be assumed to be in the condition in which it is required to be
maintained and returned under this Agreement; (ii) in the case of any installed
Equipment, that Equipment shall be valued on an installed basis; and (iii)
costs of removal from current location shall not be a deduction from such
valuation. If Lessor and Lessee are unable to agree on the Fair Market Value
at least sixty (60) days before lease expiration, Lessor shall appoint an
independent appraiser, who is reasonably acceptable to Lessee, to determine
Fair Market Value, and that determination shall be final, binding and
conclusive. Lessee shall bear all costs associated with any such appraisal
unless the purchase price, as determined by the appraiser, is more than twenty
percent (20%) lower than the lowest price quoted by Lessor prior to the
appointment of the appraiser.
(c) Lessee shall be deemed to have waived this option unless it
provides Lessor with written notice of its irrevocable election to exercise the
same within fifteen (15) days after Fair Market Value is determined (by
agreement or appraisal).
XIX. MISCELLANEOUS:
(A) LESSEE HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS LEASE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
LESSEE AND LESSOR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
LESSEE AND LESSOR. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
LEASE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION,
THIS LEASE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) Unless and until Lessee exercises its rights under Section XVIII
above, nothing herein contained shall give or convey to Lessee any right, title
or interest in and to any Equipment except as a lessee. Any cancellation or
termination by Lessor, pursuant to the provision of this Agreement, any
Schedule, supplement or amendment hereto, or the lease of any Equipment
hereunder, shall not release Lessee from any then outstanding obligations to
Lessor hereunder. All Equipment shall at all times remain personal property of
Lessor regardless of the degree of its annexation to any real property and
shall not by reason of any installation in, or affixation to, real or personal
property become a part thereof.
7
(c) Time is of the essence of this Agreement. Lessor's failure at any
time to require strict performance by Lessee of any of the provisions hereof
shall not waive or diminish Lessor's right thereafter to demand strict
compliance therewith. Lessee agrees, upon Lessor's request, to execute any
instrument necessary or expedient for filing, recording or perfecting the
interest of Lessor. All notices required to be given hereunder shall be deemed
adequately given if sent by registered or certified mail or by overnight
delivery by a nationally recognized courier service to the addressee at its
address stated herein, or at such other place as such addressee may have
designated in writing and shall be deemed effective when sent. This Agreement
and any Schedule and Annexes thereto constitute the entire agreement of the
parties with respect to the subject matter hereof. NO VARIATION OR
MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR
CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE PARTIES HERETO.
LESSOR
------------------
LESSEE
------------------
(d) In case of a failure of Lessee to comply with any provision of this
Agreement, Lessor shall have the right, but shall not be obligated, to effect
such compliance, in whole or in part; and all reasonable amouints of moneys
spent and expenses and obligations incurred or assumed by Lessor in effecting
such compliance shall constitute additional rent due to Lessor within five days
after the date Lessor sends notice to Lessee requesting payment. Lessor's
effecting such compliance shall not be a waiver of Lessee's default.
(e) Any rent or other amount not paid to Lessor when due hereunder
shall bear interest, both before and after any judgment or termination hereof,
at the lesser of eighteen percent (18%) per annum or the maximum rate allowed
by law. Any provisions in this Agreement and any Schedule which are in
conflict with any statute, law or applicable rule shall be deemed omitted,
modified or altered to conform thereto.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION GUILFORD PHARMACEUTICALS INC.
BY: /S/ XXXXXXX X. XXXXXXXX BY: /S/ XXXXXX X. XXXXXX
------------------------ ---------------------
TITLE: SPECIALIST-ACCOUNT ADMINISTRATION TITLE: VICE PRESIDENT & CHEIF FINANCIAL OFFICER
---------------------------------- ----------------------------------------
8
ADDENDUM TO SCHEDULE NO. 001
TO MASTER LEASE AGREEMENT
DATED AS OF SEPT. 18, 1996
THIS ADDENDUM (this "ADDENDUM") amends and supplements the above schedule
(the "SCHEDULE") to the above lease (the "LEASE"), between GENERAL ELECTRIC
CAPITAL CORPORATION ("LESSOR") and GUILFORD PHARMACEUTICALS INC. ("LESSEE")
and is hereby incorporated into the Schedule as though fully set forth therein.
Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Lease.
1. For purposes of this Schedule only, Section XVIII of the Lease is deleted
in its entirety and the following is added in its stead:
END OF BASIC TERM OPTIONS:
At the expiration of the Basic Term (the "BASIC TERM EXPIRATION DATE"), so
long as no default has occurred and is continuing hereunder and this Agreement
has not been earlier terminated, Lessee shall exercise one of the following
options:
(a) Renewal Option. So long as no default exists hereunder and the
lease has not been earlier terminated, Lessee may, upon at least ninety (90)
days but not more than one hundred eighty (180) days prior written notice to
Lessor, extend the term of the Lease with respect to all (but not less than
all) of the Equipment in this Schedule for a period (the "RENEWAL PERIOD") and
rate to be negotiated by the parties based upon the then remaining life and
Fair Market Value of the Equipment and the then current money market thereof
determined as of the end of the pre-extension Lease term. The term "FAIR MARKET
RENTAL VALUE" shall mean the price which a willing lessee would pay for the
rental of the Equipment in an arms-length transaction to a willing lessor under
no compulsion to lease for a time period similar to the Renewal Period;
provided, however, that in such determination: (i) the Equipment shall be
assumed to be in the condition in which it is required to be maintained and
returned under this Lease (ii) in the case of any installed additions to the
Equipment, same shall be valued on an installed basis; and (iii) costs of
removal of the Equipment from the current location shall not be a deduction
from such valuation. If Lessor and Lessee are unable to agree on the Fair
Market Rental Value at least 135 days before Lease expiration, Lessor shall
appoint an independent appraiser (reasonably acceptable to Lessee) to determine
Fair Market Rental Value, and that determination shall be final, binding and
conclusive. Lessee shall bear all costs associated with any such appraisal.
(b) Purchase Option. So long as no default exists hereunder and the
lease has not been earlier terminated, Lessee may at lease expiration, upon at
least ninety (90) days prior written notice to Lessor, purchase all (but not
less than all) of the Equipment in any Schedule on an AS IS, WHERE IS BASIS
without recourse to or warranty from Lessor, express or implied for cash equal
to its then Fair Market Value (plus all applicable sales taxes). The term "FAIR
MARKET VALUE" shall mean the price which a willing buyer (who is neither a
lessee in possession nor a used equipment dealer) would pay for the Equipment
in an arm's-length transaction to a willing seller under no compulsion to sell;
provided , however , that in such determination: (i) the Equipment shall be
assumed to be in the condition in which it is required to be maintained and
returned under this Agreement; (ii) in the case of any installed Equipment,
that Equipment shall be valued on an installed basis; and (iii) costs of
removal from current location shall not be a deduction from such valuation. If
Lessor and Lessee are unable to agree on the Fair Market Value at least seventy
five (75) days before lease expiration, Lessor shall appoint an independent
appraiser (reasonably acceptable to Lessee) to determine Fair Market Value, and
that determination shall be final, binding and conclusive. Lessee shall bear
all costs associated with any such appraisal.
(c) Return of Equipment. Lessee may return all, but not less than all
of the Equipment in full compliance with the terms and conditions of Section XI
of the Agreement: provided however that, if Lessee elects this option, Lessee
shall promptly pay to Lessor, as a contingent remarketing fee, an amount equal
to Three percent (3%) of the Capitalized Lessor's Cost of the Equipment, plus
all rent and all other sums due and unpaid as of the Basic Term Termination
Date (including, but not limited to, any Rent then due and payable and any
accrued sales and property taxes).
(d) Lessee agrees that if it elects to return the equipment for the
first Schedule, Lessee shall be deemed to have elected to return all other
Schedules under this Agreement.
2. For purposes of this Schedule only, the following is added to the end
thereof:
EARLY PURCHASE OPTION:
(a) Provided that the Agreement has not been terminated and no default
exists hereunder, Lessee shall have the option to purchase all, but not less
than all of the Equipment on the rent payment date which is thirty-six (36)
months from the Basic Term Commencement Date hereunder (the "Purchase Option
Date") for a purchase price equal to three hundred twenty one thousand one
hundred eighty one & 33/100 ($321,181.33) (the "Option Price"). Lessor and
Lessee agree that the Option Price is a reasonable prediction of the price that
a willing buyer (who is neither a lessee in possession or a used equipment
dealer) would pay for the Equipment on the Purchase Option Date in an arm's
length transaction to a willing seller under no compulsion to sell.
(b) LESSEE MAY EXERCISE SUCH OPTION ONLY BY GIVING NOTICE TO LESSOR AT
LEAST 30 DAYS (BUT NOT MORE THAN 90 DAYS) PRIOR TO THE PURCHASE OPTION DATE.
(c) On the Purchase Option Date, if Lessee has elected to purchase the
Equipment and no default has occurred and is continuing under this Agreement or
any other agreement between Lessee and Lessor:
9
(i) Lessee shall pay to Lessor any rent and other sums due and
unpaid on the Purchase Option Date; and
(ii) Lessee shall purchase from Lessor, and Lessor shall sell
to Lessee, the Equipment on an AS IS, WHERE IS basis, without recourse to or
warranty from Lessor (express or implied), for a consideration equal to the
Option Price (together with any applicable sales taxes).]
Except as expressly modified hereby, all terms and provisions of the Lease
shall remain in full force and effect. This Addendum is not binding or
effective with respect to the Lease or the Equipment until executed on behalf
of Lessor and Lessee by authorized representatives of Lessor and Lessee.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Addendum to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION GUILFORD PHARMACEUTICALS INC.
BY: BY:
NAME: NAME:
TITLE: TITLE:
Attest:
BY:
NAME:
10
1008 (Renewable)
LETTER OF CREDIT AGREEMENT
THIS LETTER OF CREDIT AGREEMENT, dated ____________________ ("AGREEMENT"),
between GUILFORD PHARMACEUTICALS INC. , a corporation organized and existing
under the laws of the State of Delaware ("LESSEE"), and GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation ("LESSOR").
RECITALS:
WHEREAS, Lessee desires to lease from Lessor certain equipment or other
property (collectively, "EQUIPMENT") pursuant to Equipment Schedule No. 001
dated as of ____________________ ("Schedule") to that certain Master Lease
Agreement ("Master Lease") dated as of ________________________ (the Master
Lease and the Schedule, as the same may be from time to time extended, amended,
restated or otherwise modified, being hereinafter collectively referred to as
the "LEASE"); and
WHEREAS, Lessor is unwilling to lease the Equipment to Lessee unless and
until Lessee provides Lessor with certain additional assurances in the form of
a letter of credit as hereinafter described;
NOW, THEREFORE, in consideration of the above premises and promises
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto, intending
to be legally bound, do hereby agree as follows:
1. Concurrently with the execution of this Agreement, Lessee shall, at
its sole cost and expense and as additional security for the prompt payment and
performance of all of its obligations (whether now existing or hereafter
arising) under the Lease, deliver or cause to be delivered to Lessor an
irrevocable standby letter of credit ("LETTER OF CREDIT") which shall be (i) in
the amount of Five Hundred Thirty Nine Thousand One Hundred Fifty Three &
33/100 US Dollars (US $539,153.33), (ii) issued by a bank which is acceptable
to Lessor in its reasonable discretion, (iii) substantially in the form of
Exhibit A attached hereto (or in such other form as may be acceptable to Lessor
in its sole discretion), and (iv) for an initial term of one year with
automatic annual renewals thereafter (without amendment except for extension of
the then current expiration date by an additional year and, provided there has
been no default under this Agreement or the Lease, the reduction of the face
amount of such letter of credit as set forth on the attached Exhibit B) until
Lessee has received written notice from Lessor to the effect that the Letter of
Credit is being released in its entirety. After all of Lessee's obligations
under the Lease have been indefeasibly paid and performed in full, Lessor
shall, upon the request of Lessee, release the Letter of Credit and provide
Lessee with a written notice to that effect. If requested by Lessor, the
Letter of Credit shall, at Lessee's sole cost and expense, be accompanied by an
opinion of counsel regarding its due authorization, execution, and
enforceability (which opinion shall be in form and substance, and from counsel,
acceptable to Lessor in its reasonable discretion).
2. Lessee shall be in default under this Agreement and the Lease if
for any reason whatsoever: (a) Lessor fails to receive the Letter of Credit in
the time and manner required herein; (b) the Letter of Credit is not
automatically renewed as required herein; (c) Lessor receives any notice to the
effect that the Letter of Credit will not be automatically renewed as required
herein; or (d) Lessee otherwise breaches any of its obligations hereunder. The
foregoing events of default are in addition to, not in lieu of, those set forth
in the Lease.
3. Upon the occurrence of any default under this Agreement or the
Lease, or upon the filing of any petition by or against Lessee under any
bankruptcy, insolvency or similar laws (which petition against Lessee is not
dismissed within sixty (60) days of its filing), then in any such event and at
any time thereafter Lessor shall have the right, with or without notice to or
demand upon Lessee, to draw upon the Letter of Credit, by presenting to the
issuer one or more sight drafts and any other necessary documents, and to
receive (in a lump sum or in several sums from time to time at the sole
discretion of Lessor) and retain an amount not to exceed, in the aggregate the
Stipulated Loss Values.
4. If Lessor draws on the Letter of Credit, the proceeds received by
Lessor therefrom shall be applied: first, towards costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by Lessor in connection with such draw or in otherwise enforcing its
rights and remedies hereunder; second, towards any rent or other sums of any
kind then due and unpaid by Debtor under the Lease; and third, at Lessor's
option either (i) towards the Stipulated Loss Value calculated as provided in
the Lease or (ii) Lessor may hold any such proceeds as additional security
(commingled with its own funds and without any need to pay interest or income
thereon) for any further obligations of Lessee under the Lease, including,
without limitation, any rent or other sums of any kind that may become due
under the Lease and/or the Stipulated Loss Value calculated as provided in the
Lease. Once all obligations of Lessee under the Lease have been indefeasibly
paid and performed in full, any remaining excess proceeds from the Letter of
Credit shall be remitted by Lessor to Lessee. In any event, Lessee shall
remain liable for any deficiency under the Lease.
5. Lessor's rights and remedies under this Agreement (including,
without limitation, the right to draw upon the Letter of Credit), the Lease or
otherwise are cumulative and may be exercised singularly or concurrently.
Neither any failure nor delay on the part of Lessor to draw upon the Letter of
Credit or to exercise any other rights or remedies shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or of any other right or remedy
howsoever arising. Under no circumstances shall Lessor be deemed or construed
to have waived its right to draw upon the Letter of Credit or to exercise any
of its other rights or remedies unless such waiver is in writing and executed
by a duly authorized representative of Lessor. A waiver of any right or remedy
on any one occasion shall not operate as a waiver of such right or remedy on
any future occasion or as a waiver of any other right or remedy.
11
6. LESSEE AND LESSOR HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, THE
LETTER OF CREDIT, THE LEASE, ANY DOCUMENTS RELATING HERETO OR THERETO, ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER HEREOF OR THEREOF, AND/OR
THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN THEM. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS).
THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT, THE LETTER OF CREDIT, THE LEASE OR ANY
DOCUMENTS RELATING HERETO OR THERETO. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
7. Any notices to be given in connection herewith shall be delivered
in the manner contemplated by the Lease. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes all prior understandings (whether written, verbal, implied or
otherwise) with respect thereto. None of the terms hereof may be amended,
waived or otherwise modified except pursuant to a written instrument duly
executed by the party to be charged. Lessor may assign its rights hereunder at
any time, but Lessee may not do so without the prior written consent of Lessor.
This Agreement shall be binding upon, and shall inure to the benefit of,
Lessor, Lessee, and their respective successors and permitted assigns.
IN WITNESS WHEREOF, Lessee and Lessor have caused their duly authorized
representatives to execute and deliver this Agreement on the year and day first
above written.
LESSEE: LESSOR:
GUILFORD PHARMACEUTICALS INC. GENERAL ELECTRIC CAPITAL CORPORATION
By: By:
Title: Title:
Date: Date:
12
3009 (3/91)
EXHIBIT A
TO LETTER OF CREDIT AGREEMENT
FORM OF LETTER OF CREDIT
(BANK LETTERHEAD STATIONERY)
GENERAL ELECTRIC CAPITAL CORPORATION
0 XXXXX XXXX XXXXX, XXXXX 000
XXXX XXXXXX, XXXXXXXX 00000
RE: IRREVOCABLE LETTER OF CREDIT NO._______________ FOR
U.S. $____________________, DATED____________________, 19_____.
Gentlemen:
We hereby issue our irrevocable Letter of Credit No._______________ in
favor of General Electric Capital Corporation, a New York corporation ("GE
CAPITAL"), for the account of Guilford Pharmaceuticals Inc. ("CUSTOMER").
We undertake to honor from time to time your draft or drafts at sight on
us not exceeding in the aggregate U.S. $____________________ when accompanied
by a typewritten statement executed by GE Capital stating either (i) that the
amount of the accompanying draft is due and owing by Customer to GE Capital
under the terms of that certain Master Lease Agreement dated as
of_________________, 1996 between customer General Electric Capital Corporation
(the "Lease Agreement"), or (ii) that a petition has been filed by or against
Customer under Title 11 of the United States Code or any successor law or
similar law.
We agree that we shall have no duty or right to inquire as to the basis
upon which GE Capital has determined to present to us any draft under this
Letter of Credit, and presentation of such draft as provided above, shall
automatically result in payment to GE Capital.
This Letter of Credit is valid until _________________________, 19_____,
and drafts drawn hereunder, when accompanied by the statement referred to
above, will be honored if presented to us at our office at
_________________________ on or before that date.
All drafts must be marked "DRAWN UNDER IRREVOCABLE LETTER OF CREDIT NO.
__________, DATED ____________________, 19_____".
This irrevocable Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision) and, to the extent not
inconsistent therewith, the Uniform Commercial Code of the State of Maryland.
13
All of the terms and conditions of this Letter of Credit are contained
herein and shall not be altered except by reduction in the amount due to
corresponding payments in like amount in compliance with the aforementioned
terms. There are no other conditions to this Letter of Credit.
Very truly yours,
By:
Title:
14
GUILFORD PHARMACEUTICALS, INC.
LETTER OF CREDIT AGREEMENT
EXHIBIT B
(% of Acquisition Cost)
END OF MONTH O/S LEASE BALANCE LETTER OF CREDIT REQUIREMENT
------------ ----------------- ----------------------------
[S] [C] [C]
0 100.00 70.0
12 85.4 60.0
24 65.6 50.0
36 44.0 32.0
48 20.6 9.0