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EXHIBIT 10.50
MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT dated as of March 19, 1998 by and between
COMDISCO LABORATORY AND SCIENTIFIC GROUP; A DIVISION OF COMDISCO HEALTHCARE
GROUP, INC. ("Lessor") and GUILFORD PHARMACEUTICALS INC. ("Lessee").
IN CONSIDERATION of the mutual agreements described below, the parties
agree as follows (all capitalized terms are defined in Section 14.12:
1. Property Leased.
Lessor leases to Lessee all of the Equipment described on each
Schedule. In the event of a conflict, the terms of a Schedule prevail over
this Master Lease.
2. Term.
On the Commencement Date Lessee will be deemed to accept the
Equipment, will be bound to it rental obligations for each item of Equipment
and the term of a Schedule will begin and continue through the Initial Term and
thereafter until terminated by either party upon prior written notice received
during the Notice Period. No termination may be effective prior to the
expiration of the Initial Term.
3. Rent and Payment.
Rent is due and payable in advance, in immediately available funds, on
the first day of each Rent Interval to the payee and at the location specified
in Lessor's invoice. Interim Rent is due and payable when invoiced. If any
payment is not made when due, Lessee will pay interest at the Overdue Rate.
4. Selection and Warranty and Disclaimer of Warranties.
4.1 Selection. Lessee acknowledges that it has selected
the Equipment and disclaims any reliance upon statements made by the Lessor.
4.2 Warranty and Disclaimer of Warranties. Lessor
warrants to Lessee that, so long as Lessee is not in default, Lessor will not
disturb Lessee's quiet and peaceful possession, and unrestricted use of the
Equipment. To the extent permitted by the manufacturer, Lessor assigns to
Lessee during the term of the Schedule any manufacturer's warranties for the
Equipment. LESSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT
OR ITS FITNESS FOR A
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PARTICULAR PURPOSE OR ITS COMPLIANCE WITH GOVERNMENTAL REGULATIONS. Lessor is
not responsible for any liability, claim, loss, damage or expense of any kind
(including strict liability in tort) caused by the Equipment except for any
loss or damage caused by negligent act of lessor. In no event is Lessor
responsible for special, incidental or consequential damages.
5. Title and Assignment.
5.1 Title. Lessee holds the Equipment subject and
subordinate to the rights of the Owner, Lessor, any Assignee and any Secured
Party. Lessee authorizes Lessor, as Lessee's agent, to prepare, execute and
file in Lessee's name precautionary Uniform Commercial Code financing
statements showing the interest of the Owner, Lessor, and any Assignee or
Secured Party in the Equipment and to insert serial numbers in Schedules as
appropriate. Except as provided in Sections 5.2 and 7.2, Lessee will, at its
expense, keep the Equipment free and clear from any liens or encumbrances of
any kind (except any caused by Lessor) and will indemnify and hold Lessor,
Owner, any Assignee and Secured Party harmless from and against any loss caused
by Lessee's failure to do so.
5.2 Relocation or Sublease. Upon prior written notice,
Lessee may relocate the Equipment to any location within the continental United
States provided (i) the Equipment will not be used by any entity exempt from
federal income tax, (ii) all additional costs (including any administrative
fees, additional taxes and insurance coverage) are reconciled and promptly paid
by Lessee. Lessee may sublease the Equipment upon the reasonable consent of
the Lessor and the Secured party and provided Lessee meets the requirements
under (i) and (ii) above. No relocation or sublease will relieve Lessee from
any of its obligations under this Master Lease and the applicable Schedules.
5.3 Assignment by Lessor. The terms and conditions of
each Schedule have been fixed by Lessor in order to permit Lessor to sell
and/or assign or transfer its interest or grant a security interest in each
Schedule and/or the Equipment to a Secured Party or Assignee. In that event
the term Lessor will mean the Assignee and any Secured Party. However, any
assignment, sale, or other transfer by Lessor will not relieve Lessor of its
obligations to Lessee and will not materially change Lessee's duties or
materially increase the burdens or risks imposed on Lessee. The Lessee
consents to and will acknowledge such assignments in a written notice given to
Lessor. Lessee also agrees that:
(a) The Secured Party will be entitled to exercise all of
Lessor's rights, but will not be obligated to perform
any of the obligations of Lessor. The Secured Party
will not disturb Lessee's quiet and peaceful
possession and unrestricted use of the Equipment so
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long as Lessee is not in default and the Secured
Party continues to receive all Rent payable under the
Schedule;
(b) Lessee will pay all Rent and all other amounts
payable to the Secured Party, despite any defense or
claim which it has against Lessor. Lessee reserves
its right to have recourse directly against Lessor
for any defense or claim; and
(c) Subject to and without impairment of Lessee's
leasehold rights in the Equipment, Lessee holds the
Equipment for the Secured Party to the extent of the
Secured Party's rights in that Equipment.
6. Net Lease and Taxes and Fees.
6.1 Net Lease. Each Schedule constitutes a net lease.
Lessee's obligation to pay Rent and all other amounts is absolute and
unconditional and is not subject to any abatement, reduction, sell-off,
defense, counterclaim, interruption, deferment or recoupment for any reason
whatsoever.
6.2 Taxes and Fees. Lessee will pay when due or
reimburse Lessor for all taxes, fees or other charges (together with any
related interest or penalties not arising from the negligence of Lessor)
accrued for or arising during the term of each Schedule against Lessor. Lessee
or the Equipment by any governmental authority (except only Federal, state and
local taxes on the capital or the net income of Lessor). Lessor will file all
personal property tax returns for the Equipment and pay all property taxes due.
Lessee will reimburse Lessor for property taxes within thirty (30) days of
receipt of an invoice.
7. Care, Use and Maintenance, Attachments and Reconfigurations,
and Inspection by Lessor.
7.1 Care, Use and Maintenance. Lessee will operate the
Equipment in accordance with all laws and regulations and maintain the
Equipment in good operating order and appearance, protect the Equipment from
deterioration, other than normal wear and tear, and will not use the Equipment
for any purpose other than that for which it was designed. If commercially
available, Lessee will maintain in force a standard maintenance contract with
the manufacturer of the Equipment and upon request will provide Lessor with a
complete copy of that contract. With lessor's prior written consent, Lessee
may have the Equipment maintained by a party other than the manufacturer.
Lessee agrees to pay any costs necessary for the manufacturer to bring the
Equipment to then current release, revision and engineering change levels and
to re-certify the Equipment as eligible for manufacturer's maintenance at the
expiration of the lease term. The lease term
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will continue upon the same terms and conditions until recertification has been
obtained.
7.2 Attachments and Reconfigurations. Upon Lessor's
prior written consent Lessee may reconfigure and install Attachments on the
Equipment. In the event of such a Reconfiguration or Attachment, Lessor shall,
upon return of the Equipment, at its expense, restore the Equipment to the
original configuration specified on the Schedule in accordance with the
manufacturer's specifications and in the same operating order, repair and
appearance as when installed (normal wear and tear excluded). Alternately,
with Lessor's prior written consent which shall not be unreasonably withheld,
Lessee may return the Equipment with any Attachment or upgrade.
7.3 Inspection by Lessor. Upon request, Lessee, during
reasonable business hours and subject to Lessee's security requirements, will
make the Equipment and its related log and maintenance records, instruction
manuals, published statements of capabilities and technical specifications and
certification, qualification and calibration reports available to Lessor for
inspection.
8. Representations and Warranties of Lessee.
Lessee represents and warrants that for the master Lease and each
Schedule;
(a) The execution, delivery and performance of the Lessee have
been duly authorized by all necessary corporate action;
(b) The individual executing was duly authorized to do so;
(c) The Master Lease and each Schedule constitute legal, valid and
binding agreements of the Lessee enforceable in accordance
with their terms;
(d) The Equipment is personal property and when subjected to use
by the Lessee will not be or become fixtures under applicable
law; and
(e) The Equipment will be for laboratory use only and will not be
used in a clinical environment on patients.
9. Delivery and Return of Equipment.
Lessee assumes the full expense of transportation of the Equipment to
its initial location, installation, deinstallation and return to a location
within the continental United States (including without limitation the expense
of in-transit insurance) all pursuant to Lessor's instructions and
manufacturer's specifications. Regarding deinstallation, Lessee will assure
that the Equipment is deinstalled by the manufacturer in accordance with the
manufacturer's recommended procedures
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and decontaminated for transport in accordance with any Environmental Law, and
returned with a Verification of Uncontamination in the same operating order,
repair, condition and appearance as when originally installed (less normal wear
and tear and depreciation) meeting all original equipment manufacturer's
specifications for continued manufacturer's maintenance, and accompanied by all
associated documents, manuals (including, but not limited to, those listed in
Section 7.3), spare parts and accessories and maintenance records for the
duration of the Schedule. In connection with deinstallation, Lessee will
assure that any contaminant removed from the Equipment will be removed and
transported by a licensed waste removal transporter.
10. Labeling.
Upon request, Lessee will ▇▇▇▇ the Equipment indicating Lessor's
interest. Lessee will keep all equipment free from any other marking or
labeling which might be interpreted as a claim of ownership.
11. Indemnity.
Lessee will indemnify and hold Lessor, its parent company, any
Assignee and any Secured Party harmless from and against any and all claims,
cases, expenses, damages and liabilities, including reasonable attorneys' fees
arising out of the ownership (for strict liability in tort only), selection
possession, leasing operation control, use maintenance, delivery, return or
other disposition of the Equipment. However, Lessee is not responsible to a
party indemnified hereunder for any claims, costs, expenses, damages and
liabilities occasioned by the negligent acts of such indemnified party. Lessee
agrees to carry death, bodily injury and property damage liability insurance
during the term of the Master Lease in amounts and against risks customarily
insured against by the Lessee on similar equipment owned by it. Any amounts
received by Lessor under that insurance will be credited against Lessee's
obligations under this Section.
12. Risk of Loss.
Effective upon delivery and until the Equipment is returned, Lessee
relieves Lessor of responsibility for all risks of physical damage to or loss
or destruction of the Equipment. Lessee will carry casualty insurance for each
item of Equipment in an amount not less than the Casualty Value. All policies
for such insurance will name the Lessor and any Secured Party as additional
insured and as loss payee, and will provide for at least thirty (30) days prior
written notice to the Lessor of cancellation or expiration. The Lessee will
furnish appropriate evidence of such insurance. Lessee shall promptly repair
any damaged item of Equipment unless such Equipment has suffered a Casualty
Loss. Within fifteen (15) days of a Casualty Loss, Lessee will provide written
notice of that loss to Lessor and Lessee will at Lessor's option, either (a)
replace the items of equipment with Like Equipment and marketable title to the
Like Equipment will automatically vest in
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Lessor or (b) pay the Casualty value and after that payment and the payment of
all other amounts due and owing, Lessor's obligation to pay further Rent for
the item of Equipment will cease.
13. Default, Remedies and Litigation.
13.1 Default. The occurrence of any one or more of the
following Events of Default constitutes a default under a Schedule.
(a) Lessee's failure to pay Rent or other amounts payable
by Lessee when due if that failure continues for ten (10) days
after written notice, or
(b) Lessee's failure to perform any other term or
condition of the Schedule or the material inaccuracy of any
representation or warranty made by the Lessee in the Schedule
or in any document or certificate furnished to the Lessor
hereunder if first failure or inaccuracy continues for
fifteen (15) days after written notice; or
(c) An assignment by Lessee for the benefit of its
creditors, the failure by Lessee to pay its debts when due,
the insolvency of Lessee, the filing by Lessee or the filing
against Lessee of any petition under any bankruptcy or
insolvency law or for the appointment of a trustee or other
officer with similar powers the adjudication of Lessee as
insolvent the liquidation of Lessee or the taking of any
action for the purpose of the foregoing; or
(d) The occurrence of an Event of Default under any
Schedule or other agreement between Lessee and Lessor or its
Assignee or Secured Party.
13.2 Remedies. Upon the occurrence of any of the above
Events of Default, Lessor, at its option may:
(a) enforce Lessee's performance of the provisions of the
applicable Schedule by appropriate court action in law or in
equity;
(b) recover from Lessee any damages and or expenses
including Default Costs;
(c) with notice and demand, recover all sums due and
accelerate and recover the present value of the remaining
payment stream of all Rent due under the defaulted Schedule
(discounted at the same rate of interest at which such
defaulted Schedule was discounted with a Secured Party plus
any prepayment fees charged to lessor by the Secured Party or,
if there is no Secured Party, then discounted at 5%)
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together with all Rent, and other amounts currently due as
liquidated damages and not as a penalty;
(d) With notice and process of law and in compliance with
Lessee's security requirements, Lessor may enter on Lessee's
premises to remove and repossess the Equipment without being
liable to Lessee for damages due to the repossession, except
those resulting from Lessor's its assignees, agents or
representatives negligence; and
(e) pursue any other remedy permitted by law or equity.
The above remedies in Lessor's discretion and to the extent permitted
by law, are cumulative and may be exercised successively or concurrently.
13.3 Mitigation. Upon return of the Equipment
pursuant to the terms of Section 13.2, Lessor will use its best efforts in
accordance with its normal business procedures (and without obligation to give
any priority to such Equipment) to mitigate Lessor's damages as described
below: EXCEPT AS SET FORTH IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS
NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO
MITIGATE ITS DAMAGES OR MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES STATED
HEREIN. Lessor may sell, lease or otherwise dispose of all or any part of the
Equipment at a public or private sale for cash or credit with the privilege of
purchasing the Equipment. The proceeds from any sale, lease or other
disposition of the Equipment are defined as either:
(a) If sold or otherwise disposed of, the cash proceeds less the
Fair Market Value of the Equipment at the expiration of the
Initial Term less the Default Costs; or
(b) if leased, the present value (discounted at three points over
the prime rate as referenced in The Wall Street Journal at the
time of the mitigation) of the rentals for a term not to
exceed the Initial Term, less the Default Costs.
Any proceeds will be applied against liquidated damages and any other
sums due to Lessor from Lessee. However, Lessee is liable to Lessor for, and
Lessor may recover, the amount by which the proceeds are less than the
liquidated damages and other sums due to Lessor from Lessee.
14. Additional Provisions.
14.1. Entire Agreement. This Master Lease and associated
Schedules supersede all other oral or written agreements or understandings
between the parties concerning the Equipment including, for example, purchase
orders, ANY
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AMENDMENT OF THIS MASTER LEASE OR A SCHEDULE, MAY ONLY BE ACCOMPLISHED BY A
WRITING SIGNED BY THE PARTY AGAINST WHOM THE AMENDMENT IS SOUGHT TO BE
ENFORCED.
14.2 No Waiver. No action taken by Lessor or Lessee shall
be deemed to constitute a waiver of compliance with any representation,
warranty or covenant contained in this Master Lease or a Schedule. The waiver
by Lessor or Lessee of a breach of any provision of this Master Lease or a
Schedule will not operate or be construed as a waiver of any subsequent breach.
14.3 Binding Nature. Each Schedule is binding upon, and
inures to the benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS
RIGHTS OR OBLIGATIONS.
14.4 Survival of Obligations. All agreements, obligations
including, but not limited to those arising under Section 6.2, representations
and warranties contained in this Master Lease, any Schedule or in any document
delivered in connection with those agreements are for the benefit of Lessor and
any Assignee or Secured Party and survive the execution, delivery, expiration
or termination of this Master Lease.
14.5 Notices. Any notice, request or other communication
in either party by the owner will be given in writing and deemed received upon
the earlier of actual receipt or three days after mailing if mailed postage
prepaid by regular or airmail to Lessor (to the attention of "Lease
Administrator") or Lessee, at the address set out in the Schedule of, one day
after it is sent by courier or facsimile transmission if receipt is verified by
the receiving party.
14.6 Applicable Law. THIS MASTER LEASE HAS BEEN, AND EACH
SCHEDULE WILL HAVE BEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF ILLINOIS
AND WILL BE GOVERNED AND CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO CONFLICT OF LAW PROVISIONS.
NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE
WILL BE CONFERRED ON LESSEE UNLESS EXPRESSLY GRANTED IN THIS MASTER LEASE OR A
SCHEDULE.
14.7 Severability. If any one or more of the provisions
of the Master Lease or any Schedule is for any reason held invalid, illegal or
unenforceable, the remaining provisions of this Master Lease and any such
Schedule will be unimpaired, and the invalid, illegal or unenforceable
provision replaced by a mutually acceptable valid, legal and enforceable
provision that is closest to the original intention of the parties.
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14.8 Counterparts. This Master Lease and any Schedule may
be executed in any number of counterparts, each of which will be deemed an
original, but as such, counterparts together constitute one and the same
instrument. If Lessor grants a security interest in all or any part of a
Schedule, the Equipment or sums payable thereunder, only that counterpart
Schedule marked "Secured Party's Original" can transfer Lessor's rights and all
other counterparts will be marked "Duplicate."
14.9 Licensed Products. Lessee shall obtain no title to
Licensed Products which at all times remain the property of the owner of the
Licensed Products. A license from the owner may be required and it is the
Lessee's responsibility to obtain any required license before the use of the
Licensed Products. Lessee agrees to treat the Licensed Products as
confidential information of the owner, to observe all copy right restrictions,
and not to reproduce or sell the Licensed Products.
14.10 Additional Documents. Lessee will, upon execution of
this Master Lease and as may be requested thereafter, provide Lessor with a
secretary's certificate of incumbency and authority and any other documents
reasonably requested by Lessor. Upon the execution of each Schedule with an
aggregate Rent in excess of $2,000,000, Lessee will provide Lessor with an
opinion from Lessee's counsel regarding the representations and warranties in
Section 8. Lessee will furnish, upon request, audited financial statements for
the most recent period.
14.11 Electric Communications. Each of the parties may
communicate with the other by electronic means under mutually agreeable terms.
14.12 Definitions. Assignee - means entity to whom Lessor
has sold or assigned its rights as owner and Lessor of Equipment.
Attachment - means any accessory, equipment or device and the
installation thereof that does not impair the original function or use of the
Equipment and is capable of being removed without causing material damage to
the Equipment and is not an accession to the Equipment.
Casualty Loss - means the irreparable loss or destruction of
Equipment.
Casualty Value - means the amount equal to the present value of the
aggregate Rent remaining for the balance of the current term, plus the present
value of the Fair Market Value (determined as of the expiration of the current
term) of Like Equipment computed using an interest rate equal to the rate for
Treasury Securities having a comparable term to the current term. However, if
a Casualty Value Table is attached to the relevant Schedule, its terms will
control.
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Commencement Certificate - means the Lessor provided certificate which
must be signed by Lessee within ten days of the Commencement Date as requested
by Lessor.
Commencement Date - is defined in each Schedule.
Contaminant - means those substances which are regulated by or form
the basis of liability under Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyl ("PCB") and radioactive substances or other
material or substance which has in the past or could in the future constitute a
health, safety or environmental hazard to any person, property or natural
resource.
Default Costs - means reasonable attorney's fees and remarketing costs
resulting from a Lessee default or Lessor's enforcement of its remedies.
Environmental Law - means any federal, foreign, state or local law,
rule or regulation pertaining to the protection of the environment, including,
but not limited to the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA") (42. U.S.C. Section 9601 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), the Resource, Conservation and
Recovery Act (42 U.S.C. 8901 et seq.), the Clean Air Act (42 U.S.C. 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. 2501 et seq.), the Federal
Insecticide, Fungicides and Rodanticide Act (7 U.S.C. 1361 et seq.), and the
Occupational Safety and Health Act (10 U.S.C. 851 et seq.), as these laws have
been amended or supplemented and any analogous foreign, state or local
statutes, and the regulations promulgated pursuant therein.
Equipment - means the property described on a Schedule and any
replacement for that property required or permitted by this Master Lease or a
Schedule but not including any Attachments.
Event of Default - means the events described in Subsection 13.1.
Fair Market Value - means the aggregate amount which would be
obtainable in an arm's-length transaction between an informed and willing
buyer/user purchasing the Equipment in place for its originally intended use
and an informed and willing seller under no compulsion to sell.
Initial Term - means the period of time beginning on the first day of
the first full Rent Interval following the Commencement Date for all items of
Equipment and continuing for the number of Rent intervals indicated on a
Schedule.
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Installation Date - means the day on which the Equipment is installed
and qualified for a commercially available manufacturer's standard maintenance
contract or warranty coverage, if available.
Interim Rent - means the pro-rata portion of Rent due for the period
from the Commencement Date through but not including the first day of the first
full Rent Interval included in the Initial Term.
Licensed Products - means any software or other licensed products
attached to the Equipment.
Like Equipment - means replacement Equipment which is lien free and of
the same model, type, configuration and manufacture as Equipment.
Notice Period - means the time period described in a Schedule during
which Lessee may give Lessor notice of the termination of the term of that
Schedule.
Overdue Rate - means the lesser of 18% per year or the maximum rate
permitted by the law of the state where the Equipment is located.
Owner - means the owner of Equipment.
Reconfiguration - means any change to Equipment that would upgrade or
downgrade the performance capabilities of the Equipment in any way.
Rent - means the rent, including Interim Rent Lessee will pay for each
item of Equipment expressed in a Schedule either as a specific amount or an
amount equal to the amount which Lessor pays for an item of Equipment
multiplied by a lease rate factor plus all other amounts due to Lessor under
this Master Lease or a Schedule.
Rent Interval - means a full calendar month or quarter as indicated on
a Schedule.
Schedule - means an Equipment Schedule which incorporates all of the
terms and conditions of this Master Lease and, for purposes of Section 14.8,
its associated Commencement Certificate(s).
Secured Party - means an entity to whom Lessor has granted a security
interest in a Schedule and related Equipment for the purpose of securing a
loan.
Verification of Decontamination - means a letter from the party
performing the decontamination, stating that it is properly licensed to perform
the decontamination and that an actual decontamination and disposal of
Contaminants was completed in accordance with the manufacturer's specifications
and procedures
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and all applicable governmental rules and regulations including but not limited
to all Environmental Laws.
IN WITNESS WHEREOF, the parties herein have executed this Master Lease
on or as of the day and year first above written.
GUILFORD PHARMACEUTICALS INC. COMDISCO LABORATORY AND
as Lessee SCIENTIFIC GROUP, A DIVISION
OF COMDISCO HEALTHCARE
GROUP, INC.
as Lessor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: S.V.P. & CFO Title: Credit Manager
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ADDENDUM
TO THE MASTER LEASE AGREEMENT
DATED MARCH 18, 1998
BETWEEN
COMDISCO LABORATORY AND SCIENTIFIC GROUP
A DIVISION OF COMDISCO HEALTHCARE GROUP, INC. ("LESSOR")
AND
GUILFORD PHARMACEUTICALS INC. ("LESSEE")
The terms and conditions of the Master Lease Agreement are hereby modified and
amended as follows:
Section 1 Property Leased
Add the following at the end, "with respect to that particular
Schedule only".
Section 4 Selection and Warranty and Disclaimer of Warranties
Subsection 4.2 Warranty and Disclaimer of Warranties
Line 2 after "is not" add "materially" and after "default" add
"under this Agreement or the applicable Schedule".
Line 12 after "negligent acts" add "or willful misconduct".
Section 5 Title and Assignment
Subsection 5.2 Relocation or Sublease
Line 4 after "additional" add "reasonable" and after "costs"
add "of Lessor related to such relocation".
Line 7 after "Secured Party" add "such consent not to be
unreasonably withheld, delayed, or conditioned".
Subsection 5.3 Assignment by Lessor
Subparagraph (a) line 5 after "is not" add "materially" and
after "default" add "under this Agreement or the applicable
Schedule".
At the end of the paragraph add Subparagraph (d)
"Notwithstanding the foregoing, no transfer pursuant to this
section 5.3 shall be effective
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as to an Assignee without the prior written consent of Lessee
(which consent shall not be unreasonably withheld, delayed or
conditioned)".
Section 6 Net Lease and Taxes and Fees
Subsection 6.2 Taxes and Fees
Line 5 after "net income" add "or gross receipts in lieu of
state and local taxes on the capital or net income" and after
"of Lessor" add "arising from the Lessee's lease of Equipment
under this Agreement".
Delete the last two sentences in their entirety and replace
with "To the extent permitted by law Lessee shall be
responsible for the filing of all personal property tax
returns in respect of the Equipment and shall pay all taxes
due and owing with respect to Equipment leased hereunder by
Lessee and indicated on such returns. Lessee shall furnish
Lessor with such information as reasonably necessary to verify
Lessee's payment of such personal property tax and all taxes
indicated".
Section 7 Care, Use and Maintenance, Attachments and Reconfigurations, and
Inspection by Lessor
Subsection 7.1 Care, Use and Maintenance
Line 5 delete "if commercially available".
Line 7 after "Equipment" add "or a third party".
Subsection 7.2 Attachments and Reconfigurations
Line 2 after "consent" add "(which consent shall not be
unreasonably withheld, delayed or conditioned)".
Line 8 delete "consent which will not be unreasonably
withheld" and replace with "which consent shall not be
unreasonably withheld, delayed or conditioned".
Subsection 7.3 Inspection by Lessor
Line 2 after "hours" add "and upon reasonable prior notice to
Lessee".
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Section 8 Representations and Warranties of Lessee
Subparagraph (c) line 3 after "terms" add "subject to
bankruptcy, in solvency, liquidation, reorganization,
fraudulent conveyance, and similar laws affecting creditors'
rights generally and general principals of equity".
Subparagraph (e) line after "laboratory" add "or office".
Section 9 Delivery and Return of Equipment
Line 6 after "manufacturer" and "or a third party reasonably
acceptable to Lessor".
Section 11 Indemnity
Line 8 after "negligent acts" add "or willful misconduct".
Section 12 Risk of Loss
Line 7 after "Lessee will" add "upon the request of Lessor".
Section 13 Default, Remedies and Mitigation
Subsection 13.1 Default
Line 2 after "constitutes a" add "material".
Subparagraph (a) line 2 after "after" add "Lessee's receipt
of".
Subparagraph (b) line 1 after "other" add "material" and line
5 after "after" add "Lessee's receipt of".
Subparagraph (c) line 3 after "against Lessee" add "unless
such filing is dismissed within sixty (60) days".
Subsection 13.2 Remedies
Subparagraph (d) line 6 after "negligence" add "or willful
misconduct".
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Section Additional Provisions
Subsection 14.3 Binding Nature
At end of section delete the period and add "without the prior
consent of Lessor, which consent will not be unreasonably
withheld, delayed or conditioned".
Subsection 14.5 Notices
At the end of section delete the period and add "or in the
case of courier delivery, delivery is refused".
Subsection 14.9 Licensed Products
Line 5 delete the period and add "and Lessor's taking title
thereto".
Subsection 14.10 Additional Documents
Line 2 after secretary's add "or assistant secretary's".
At the end of the paragraph delete the word period and replace
with "fiscal year".
Except as set out herein, Lessor and Lessee hereby agree that the terms and
conditions of the Master Lease Agreement shall remain in full force and effect
as entered into by the parties on or prior to the date hereof.
GUILFORD PHARMACEUTICALS INC. COMDISCO LABORATORY AND
as Lessee SCIENTIFIC GROUP, A DIVISION
OF COMDISCO HEALTHCARE
GROUP, INC.
as Lessor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: S.V.P. & CFO Title: Credit Manager
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Date: 3/20/98 Date: 4/10/98
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