exv10w1



 





Exhibit 10.1




MASTER SECURITY AGREEMENT

dated as of October 31, 2006 “Agreement”)




     THIS AGREEMENT is between General Electric Capital Corporation (together with its
successors and assigns, if any, “Secured Party”) and Genitope Corporation (“Debtor”). Secured
Party has an office at 83 Wooster Heights Road, Danbury, CT 06810. Debtor is a corporation
organized and existing under the laws of the state of DE (“the State”). Debtor’s mailing address
and chief place of business is 6900 Dumbarton Circle, Fremont, CA 94555.



1. CREATION OF SECURITY INTEREST.




     Debtor grants to Secured Party, its successors and assigns, a security interest in and
against all property listed on any collateral schedule now or in the future annexed to or made a
part of this Agreement (“Collateral Schedule”), and in and against all additions, attachments,
accessories and accessions to such property, all substitutions, replacements or exchanges therefor,
and all insurance and/or other proceeds thereof (all such property is individually and collectively
called the “Collateral”). This security interest is given to secure the payment and performance of
all debts, obligations and liabilities of any kind whatsoever of Debtor to Secured Party, now
existing or arising in the future, under this Agreement and those certain Promissory Notes from
time to time identified on any Collateral Schedule (collectively “Notes” and each a “Note”), and
any renewals, extensions and modifications of such debts, obligations and liabilities (such Notes,
debts, obligations and liabilities are called the “Indebtedness”).



2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.




     Debtor represents, warrants and covenants as of the date of this Agreement and as of the
date of each Collateral Schedule that:



     (a) Debtor’s exact legal name is as set forth in the preamble of this Agreement and Debtor
is, and will remain, duly organized, existing and in good standing under the laws of the State set
forth in the preamble of this Agreement, has its chief executive offices at the location specified
in the preamble, and is, and will remain, duly qualified and licensed in every jurisdiction
wherever necessary to carry on its business and operations except where the failure to so qualify
would not have a material adverse effect on the financial condition of Debtor or on its ability to
perform its obligations under this Agreement and any other Debt Document (as defined below);



     (b) Debtor has adequate power and capacity to enter into, and to perform its obligations
under this Agreement, each Note and any other documents evidencing, or given in connection with,
any of the Indebtedness (all of the foregoing are called the “Debt Documents”);



     (c) This Agreement and the other Debt Documents have been duly authorized, executed and
delivered by Debtor and constitute legal, valid and binding agreements enforceable in accordance
with their terms, except to the extent that the enforcement of remedies may be limited under
applicable bankruptcy and insolvency laws or similar laws affecting creditors’ rights generally and
by general principles of equity;



     (d) No approval, consent or withholding of objections is required from any governmental
authority or instrumentality with respect to the entry into, or performance by Debtor of any of the
Debt Documents, except any already obtained;



     (e) The entry into, and performance by, Debtor of the Debt Documents will not (i) violate
any of the organizational documents of Debtor or any judgment, order, law or regulation applicable
to Debtor, or (ii) result in any breach of or constitute a default under any contract to which
Debtor is a party, or result in the creation of any lien, claim or encumbrance on any of Debtor’s
property (except for liens in favor of Secured Party) pursuant to any indenture, mortgage, deed of
trust, bank loan, credit agreement, or other agreement or instrument to which Debtor is a party;



     (f) There are no suits or proceedings pending in court or before any commission, board or
other administrative agency against or affecting Debtor which could, in the aggregate, have a
material adverse effect on Debtor, its business or operations, or its ability to perform its
obligations under the Debt Documents, nor does Debtor have reason to believe that any such suits or
proceedings are threatened;



     (g) All financial statements delivered to Secured Party in connection with the
Indebtedness have been prepared in accordance with generally accepted accounting principles, and
since the date of the most recent financial statement, there has been no material adverse change in
Debtors financial condition;



     (h) The Collateral is not, and will not be, used by Debtor for personal, family or
household purposes;



     (i) The Collateral is, and will remain, in good condition and repair, normal wear and tear
excepted, and Debtor will not be negligent in its care and use;




 









 





     (j) Debtor is, and will remain, the sole and lawful owner, and in possession of, the
Collateral, and has the sole right and lawful authority to grant the security interest described in
this Agreement;



     (k) The Collateral is, and will remain, free and clear of all liens, claims and encumbrances
of any kind whatsoever, except for (i) liens in favor of Secured Party, (ii) liens for taxes not
yet due or for taxes being contested in good faith and which do not involve, in the judgment of
Secured Party, any risk of the sale, forfeiture or loss of any of the Collateral, and(iii) inchoate
materialmen’s, mechanic’s, repairmen’s and similar liens arising by operation of law in the normal
course of business for amounts which are not delinquent, (all of such liens are called “Permitted
Liens”);



     (l) Debtor is and will remain in full compliance with all laws and regulations applicable
to it including, without limitation, (i) ensuring that no person who owns a controlling interest in
or otherwise controls Debtor is or shall be (Y) listed on the Specially Designated Nationals and
Blocked Person List maintained by the Office of Foreign Assets Control (“OFAC”), Department of the
Treasury, and/or any other similar lists maintained by OFAC pursuant to any authorizing statute,
Executive Order or regulation or (Z) a person designated under Section 1(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other
similar Executive Orders, and (ii) compliance with all applicable Bank Secrecy Act (“BSA”) laws,
regulations and government guidance on BSA compliance and on the prevention and detection of money
laundering violations.




3. COLLATERAL.




     (a) Until the declaration of any default, Debtor shall remain in possession of the Collateral
(except to Secured Party or for maintenance and repair); except that Secured Party shall have the
right to possess (i) any chattel paper or instrument that constitutes a part of the Collateral,
and (ii) any other Collateral in which Secured Party’s security interest may be perfected only by
possession. At Secured Party’s expense not more frequently than once per calendar year (unless a
default has occurred and is continuing), Secured Party may inspect any of the Collateral during
normal business hours after giving Debtor reasonable prior notice. If Secured Party asks, Debtor
will promptly notify Secured Party in writing of the location of any Collateral.



     (b) Debtor shall (i) use the Collateral only in its trade or business, (ii) maintain all of
the Collateral in good operating order and repair, normal wear and tear excepted, (iii) use and
maintain the Collateral only in compliance with manufacturers recommendations and all applicable
laws, and (iv) keep all of the Collateral free and clear of all liens, claims and encumbrances
(except for Permitted Liens).



     (c) Secured Party does not authorize and Debtor agrees it shall not (i) part with possession
of any of the Collateral (except to Secured Party or for maintenance and repair), (ii) remove any
of the Collateral from the continental United States, or (iii) sell, rent, lease, mortgage,
license, grant a security interest in or otherwise transfer or encumber (except for Permitted
Liens) any of the Collateral.



     (d) Debtor shall pay promptly when due all taxes, license fees, assessments and public and
private charges levied or assessed on any of the Collateral, on its use, or on this Agreement or
any of the other Debt Documents except any taxes based upon, measured by or with respect to Secured
Party’s net income and except as contested in good faith and by appropriate proceedings and for
which adequate reserves have been established. At its option, if Debtor fails to do so after 10
days written notice from Secured Party, Secured Party may discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on the Collateral (subject to the
contest rights set forth in the preceding sentence) and may pay for the maintenance, insurance and
preservation of the Collateral and effect compliance with the terms of this Agreement or any of the
other Debt Documents. Debtor agrees to reimburse Secured Party, on demand, all reasonable costs
and expenses incurred by Secured Party in connection with such payment or performance and agrees
that such reimbursement obligation shall constitute Indebtedness.



     (e) Debtor shall, at all times, keep accurate and complete records of the Collateral, and at
Secured Party’s expense not more frequently than once per calendar year (unless a default has
occurred and is continuing) Secured Party shall have the right to inspect and make copies of all of
Debtor’s books and records relating to the Collateral during normal business hours, after giving
Debtor reasonable prior notice.



     (f) Debtor agrees and acknowledges that any third person who may at any time possess all or
any portion of the Collateral shall be deemed to hold, and shall hold, the Collateral as the agent
of, and as pledge holder for, Secured Party. Secured Party may at any time give notice to any third
person described in the preceding sentence that such third person is holding the Collateral as the
agent of, and as pledge holder for, the Secured Party.




4. INSURANCE.




     (a) Debtor shall at all times bear the entire risk of any loss, theft, damage to, or
destruction of, any of the Collateral from any cause whatsoever.



     (b) Debtor agrees to keep the Collateral insured against loss or damage by fire and extended
coverage perils, theft, burglary, and for any or all Collateral which are vehicles, for risk of
loss by collision, and if requested by Secured Party, against such other risks as Secured Party may
reasonably require. The insurance coverage shall be in an amount no less than the full replacement
value (“Fair Market Value”) of the Collateral, and deductible amounts, insurers and policies shall



 









 







be reasonably acceptable to Secured Party. Debtor shall deliver to Secured Party policies or
certificates of insurance evidencing such coverage. Each policy shall name Secured Party as a loss
payee, shall provide for coverage to Secured Party regardless of the breach by Debtor of any
warranty or representation made therein, shall not be subject to co-insurance, and shall provide
that coverage may not be canceled or materially altered by the insurer except upon thirty (30) days
prior written notice to Secured Party. Debtor appoints Secured Party as its attorney-in-fact to
make proof of loss, claim for insurance and adjustments with insurers, and to receive payment of
and execute or endorse all documents, checks or drafts in connection with insurance payments.
Secured Party shall not act as Debtor’s
attorney-in-fact unless Debtor is in default. Proceeds of insurance in excess of $100,000 shall be
applied, at the option of Secured Party, to repair or replace the Collateral or to reduce any of
the Indebtedness. Proceeds of insurance in the amount of $100,000 or less shall be applied, at the
option of Debtor, to repair or replace the Collateral or to reduce any of the Indebtedness.




5. REPORTS.




     (a) Debtor shall promptly notify Secured Party of (i) any change in the name of Debtor,
(ii) any change in the state of its incorporation, organization or registration, (iii) any
relocation of its chief executive offices, (iv) any relocation of any of the Collateral, (v) any
of the Collateral being lost, stolen, missing, destroyed, materially damaged or worn out, or (vi)
any lien, claim or encumbrance other than Permitted Liens attaching to or being made against any of
the Collateral.



     (b) Debtor will deliver to Secured Party financial statements as follows. If Debtor is a
privately held company, then Debtor agrees to provide monthly financial statements, certified by
Debtor’s president or chief financial officer including a balance sheet, statement of operations
and cash flow statement within 30 days of each month end and its complete audited annual financial
statements, certified by a recognized firm of certified public accountants, within 120 days of
fiscal year end or at such time as Debtor’s Board of Directors receives the audit. If Debtor is a
publicly held company, then Debtor agrees to provide quarterly unaudited statements and annual
audited statements, certified by a recognized firm of certified public accountants, within 10 days
after the statements are provided to the Securities and Exchange Commission (“SEC”). All such
statements are to be prepared using generally accepted accounting principles (“GAAP”) (except in
the case of unaudited financial statements, for the omission of footnotes and subject to year end
adjustments) and, if Debtor is a publicly held company, are to be in compliance with SEC
requirements.




6. FURTHER ASSURANCES.




     (a) Debtor shall, upon request of Secured Party, furnish to Secured Party such further
information, execute and deliver to Secured Party such documents and instruments (including,
without limitation, Uniform Commercial Code financing statements) and shall do such other acts and
things as Secured Party may at any time reasonably request relating to the perfection or protection
of the security interest created by this Agreement or for the purpose of carrying out the intent of
this Agreement. Without limiting the foregoing, Debtor shall cooperate and do all acts deemed
necessary or advisable by Secured Party to continue in Secured Party a perfected first security
interest in the Collateral, and shall obtain and furnish to Secured Party any subordinations,
releases, landlord waivers, lessor waivers, mortgagee waivers, or control agreements, and similar
documents as may be from time to time requested by, and in form and substance reasonably
satisfactory to, Secured Party.



     (b) Debtor authorizes Secured Party to file a financing statement and amendments thereto
describing the Collateral and containing any other information required by the applicable Uniform
Commercial Code. Debtor irrevocably grants to Secured Party the power to sign Debtor’s name and
generally to act on behalf of Debtor to execute and file applications for title, transfers of
title, financing statements, notices of lien and other documents pertaining to any or all of the
Collateral; this power is coupled with Secured Party’s interest in the Collateral. Debtor shall,
if any certificate of title be required or permitted by law for any of the Collateral, obtain and
promptly deliver to Secured Party such certificate showing the lien of this Agreement with respect
to the Collateral. Debtor ratifies its prior authorization for Secured Party to file financing
statements and amendments thereto describing the Collateral and containing any other information
required by the Uniform Commercial Code if filed prior to the date hereof.



     (c) Debtor shall indemnify and defend the Secured Party, its successors and assigns, and
their respective directors, officers and employees (“Indemnitees”), from and against all claims,
actions and suits (including, without limitation, related reasonable attorneys’ fees) of any kind
whatsoever arising, directly or indirectly, in connection with any of the Collateral except for
claims arising from Indemnities’ gross negligence or wilful misconduct.




7. DEFAULT AND REMEDIES.




     (a) Debtor shall be in default under this Agreement and each of the other Debt Documents
if:



          (i) Debtor breaches its obligation to pay when due any installment or other amount due or
coming due under any of the Debt Documents and fails to cure the breach within ten (10) days;




 









 








          (ii) Debtor, without the prior written consent of Secured Party, attempts to or does sell,
rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber
(except for Permitted Liens) any of the Collateral.




          (iii) Debtor breaches any of its insurance obligations under Section 4;




          (iv) Debtor breaches any of its other obligations under any of the Debt Documents and fails to
cure that breach within thirty (30) days after written notice from Secured Party;




          (v) Any warranty, representation or statement made by Debtor in any of the Debt Documents or
otherwise in connection with any of the Indebtedness shall be false or misleading in any material
respect when made;




          (vi) Any of the Collateral is subjected to attachment, execution, levy, seizure or
confiscation in any legal proceeding or otherwise and the same shall remain unsatisfied, unvacated
or unstayed pending appeal for a period of 10 days after the occurrence thereof, or if any legal or
administrative proceeding is commenced against Debtor or any of the Collateral, which in the good
faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment,
execution, levy, seizure or confiscation and no bond is posted or protective order obtained to
negate such risk;




          (vii) Debtor breaches or is in default under any other agreement between Debtor and Secured
Party beyond the period of grace, if any, provided therein unless such default has been waived;




          (viii) Debtor or any guarantor or other obligor for any of the Indebtedness (collectively
“Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a
going concern;




          (ix) If Debtor or any Guarantor is a natural person, Debtor or any such Guarantor dies or
becomes incompetent;




          (x) A receiver is appointed for all or of any part of the property of Debtor or any Guarantor,
or Debtor or any Guarantor makes any assignment for the benefit of creditors;




          (xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law,
or any such petition is filed against Debtor or any Guarantor and is not dismissed within sixty
(60) days;




          (xii) Debtor’s improper filing of an amendment or termination statement relating to a filed
financing statement describing the Collateral;




          (xiii) There is a material adverse change in the Debtor’s financial condition such that the
Debtor’s ability to repay any indebtedness under the Agreement is materially impaired as reasonably
determined by Secured Party without limiting the scope of the foregoing, Debtor acknowledges and
agrees that if Debtor is party to transaction that results in (A) Debtor no longer being a publicly
traded company, and (B) controlling interest of Debtor being acquired by a person or entity not
reasonably acceptable to Secured Party based upon Secured Party’s customary credit underwriting
standards, the consummation of such transaction shall constitute a material adverse change within
the definition of this clause ;




          (xiv) Any Guarantor revokes or attempts to revoke its guaranty of any of the Indebtedness or
fails to observe or perform any covenant, condition or agreement to be performed under any guaranty
or other related document to which it is a party;




          (xv) Debtor defaults under any other material obligation with a third party for (A) borrowed
money, (B) the deferred purchase price of property or (C) payments due under any capital lease
agreement resulting in the acceleration by such third party of any indebtedness owed by Debtor to
such third party thereunder in an amount in excess of $ 100,000; and such default by Debtor was not
the result of a bona fide business dispute with such third party or




     (b) If Debtor is in default, the Secured Party, at its option, may declare any or all of the
Indebtedness to be immediately due and payable, without demand or notice to Debtor or any
Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after
any judgment) until paid in full at the lower of eighteen percent (18%) per annum or the maximum
rate not prohibited by applicable law.



     (c) After default and during the continuance thereof, Secured Party shall have all of the
rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other
applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify
any account debtor of Debtor or any obligor on any instrument which constitutes part of the
Collateral to make payment to the Secured Party, (ii) with or without legal process, enter any
premises where the Collateral may be and take possession of and remove the Collateral from the
premises or store it on the premises, (iii) sell the Collateral at public or private sale, in
whole or in part, and have the right to bid and purchase at said sale, or (iv) lease or otherwise
dispose of all or part of the Collateral, applying proceeds from such disposition to the
obligations then in default. If requested by Secured Party, Debtor shall promptly assemble the
Collateral and make it available to Secured Party at a place to be designated by Secured Party,
which is reasonably convenient to both parties. Secured Party may also render any or all of the
Collateral unusable at the Debtor’s premises and may dispose of such Collateral on such premises
without liability for rent or costs. Any notice that Secured



 









 







Party is required to give to Debtor
under the Uniform Commercial Code of the time and place of any public sale or the time after which
any private sale or other intended disposition of the Collateral is to be made shall be deemed to
constitute reasonable notice if such notice is given to the last known address of Debtor at least
ten (10) days prior to such action.



     (d) Proceeds from any sale or lease or other disposition shall be applied: first, to all
costs of repossession, storage, and disposition including without limitation reasonable attorneys’,
appraisers’, and auctioneers’ fees; second, to discharge the obligations then in default; third, to
discharge any other Indebtedness of Debtor to Secured Party, whether as obligor, endorser,
guarantor, surety or indemnitor; fourth, to expenses incurred in paying or settling liens and
claims against the Collateral; and lastly, to Debtor, if there exists any surplus. Debtor shall
remain fully liable for any deficiency.



     (e) Debtor agrees to pay all reasonable attorneys’ fees and other costs incurred by
Secured Party in connection with the enforcement, assertion, defense or preservation of Secured
Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may
be permitted. Debtor further agrees that such fees and costs shall constitute Indebtedness.



     (f) Secured Party’s rights and remedies under this Agreement or otherwise arising are
cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on
the part of the Secured Party to exercise any right, power or privilege under this Agreement shall
operate as a waiver, nor shall any single or partial exercise of any right, power or privilege
preclude any other or further exercise of that or any other right, power or privilege. SECURED
PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER
AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND
SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver
of any right or remedy on any future occasion.



     (g) DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT
DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE
RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS
WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER
ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.




8. MISCELLANEOUS.




     (a) This Agreement, any Note and/or any of the other Debt Documents may be assigned, in
whole or in part, by Secured Party without notice to Debtor, and Debtor agrees not to assert
against any such assignee, or assignee’s assigns, any defense, set-off, recoupment claim or
counterclaim which Debtor has or may at any time have against Secured Party for any reason
whatsoever. Debtor agrees that if Debtor receives written notice of an assignment from Secured
Party, Debtor will pay all amounts payable under any assigned Debt Documents to such assignee or as
instructed by Secured Party. Debtor also agrees to confirm in writing receipt of the notice of
assignment as may be reasonably requested by Secured Party or assignee.



     (b) All notices to be given in connection with this Agreement shall be in writing, shall
be addressed to the parties at their respective addresses set forth in this Agreement (unless and
until a different address may be specified in a written notice to the other party), and shall be
deemed given (i) on the date of receipt if delivered in hand or by facsimile transmission, (ii)
on the next business day after being sent by express mail, and (iii) on the fourth business day
after being sent by regular, registered or certified mail. As used herein, the term “business day”
shall mean and include any day other than Saturdays, Sundays, or other days on which commercial
banks in New York, New York are required or authorized to be closed.



     (c) Secured Party may correct patent errors and fill in all blanks in this Agreement or in
any Collateral Schedule consistent with the agreement of the parties.



     (d) Time is of the essence of this Agreement. This Agreement shall be binding, jointly
and severally, upon all parties described as the “Debtor” and their respective heirs, executors,
representatives, successors and assigns, and shall inure to the benefit of Secured Party, its
successors and assigns.



     (e) This Agreement and its Collateral Schedules constitute the entire agreement between
the parties with respect to the subject matter of this Agreement and supersede all prior
understandings (whether written, verbal or implied) with respect to such subject matter. THIS
AGREEMENT AND ITS COLLATERAL SCHEDULES SHALL NOT BE CHANGED OR TERMINATED ORALLY OR BY COURSE OF
CONDUCT, BUT ONLY BY A WRITING SIGNED BY BOTH PARTIES. Section headings contained in this
Agreement have been included for convenience only, and shall not affect the construction or
interpretation of this Agreement.




 









 





     (f) This Agreement shall continue in full force and effect until all of the Indebtedness
has been indefeasibly paid in full to Secured Party or its assignee. Except as set forth below,
the surrender, upon payment or otherwise, of any Note or any of the other documents evidencing any
of the Indebtedness shall not affect the right of Secured Party to retain the Collateral for such
other Indebtedness as may then exist. Upon satisfaction of Debtor’s obligations hereunder and all
of the other Debt Documents, Secured Party will, at Debtor’s expense, execute and deliver to Debtor
such documents as Debtor shall reasonably request to evidence the termination of the security
interest hereunder and the release of the Collateral In addition, upon satisfaction of Debtor’s
obligations under any Note issued in connection with any Collateral Schedule, Secured Party will,
at Debtor’s expense, execute and deliver to Debtor such documents as Debtor shall reasonably
request to evidence the release of the Collateral described in such Collateral Schedule, This
Agreement shall automatically be reinstated if Secured Party is ever required to return or restore
the payment of all or any portion of the Indebtedness (all as though such payment had never been
made).



     (g) Debtor authorizes Secured Party to use its name, logo and/or trademark without notice to
or consent by Debtor, in connection with certain promotional materials that Secured Party may
disseminate to the public. The promotional materials may include, but are not limited to,
brochures, video tape, internet website, press releases, advertising in newspaper and/or other
periodicals, lucites, and any other materials relating the fact that Secured Party has a financing
relationship
with Debtor and such materials may be developed, disseminated and used without Debtor’s review.
Nothing herein obligates Secured Party to use Debtor’s name, logo and/or trademark, in any
promotional materials of Secured Party.



     (h) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE COLLATERAL.



     (i) In handling any confidential information of Debtor, Secured Party and all employees and
agents of Secured Party shall exercise the same degree of care that Secured Party exercises with
respect to its own proprietary information of the same types to maintain the confidentiality of any
non-public information thereby received or received pursuant to this Agreement except that
disclosure of such information may be made (i) to the subsidiaries or affiliates of Secured Party
in connection with their present or prospective business relations with Debtor, (ii) to prospective
transferees or purchasers of any interest in the Indebtedness, provided that they have entered into
a comparable confidentiality agreement in favor of Debtor and have delivered a copy to Debtor,
(iii) as required by law, regulations, rule or order, subpoena, judicial order or similar order,
(iv) as may be required in connection with the examination, audit or similar investigation of
Secured Party, and (v) as Secured Party may determine in connection with the enforcement of any
remedies hereunder. Confidential information hereunder shall not include information that either:
(a) is in the public domain or in the knowledge or possession of Secured Party when disclosed to
Secured Party, or becomes part of the public domain after disclosure to Secured Party through no
fault of Secured Party; or (b) is disclosed to Secured Party by a third party, provided Secured
Party does not have actual knowledge that such third party is prohibited from disclosing such
information.


IN WITNESS WHEREOF, Debtor and Secured Party, intending to be legally bound
hereby, have duly executed this Agreement in one or more counterparts, each of which shall
be deemed to be an original, as of the day and year first aforesaid.





	 	 	 	 	 	 	 	 	 
	SECURED PARTY:	 	DEBTOR:
	 
	General Electric Capital Corporation	 	Genitope Corporation
	By:

	 	/s/ Diane Earle 	 	 	 	By:
	 	/s/ Dan W. Denney, Jr.
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	Diane Earle 	 	 	 	Name:
	 	Dan W. Denney, Jr.
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	Duly Authorized Signatory 	 	 	 	Title:
	 	CEO