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Exhibit 10.30
SALE AND LEASEBACK AGREEMENT
This Sale and Leaseback Agreement is entered into as of the 10TH day of
December, 1997, by and between VION Pharmaceuticals, Inc., a Delaware
corporation with its principal place of business a Xxxx Xxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxxx 00000 (hereinafter referred to as "Seller"), and FINOVA Technology
Finance, Inc., a Delaware corporation with its principal place of business at 00
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000-0000 (hereinafter referred to as
"Buyer").
WHEREAS, Seller desires to sell to Buyer the personal property listed in
Schedule A attached hereto (such listed personal property being hereinafter
referred to as the "Equipment"), and
WHEREAS, Seller desires to use the Equipment for the exclusive benefit of
Seller under the terms and conditions of the Master Equipment Lease Agreement
dated October 17, 1996, between Buyer (as Lessor) and Seller (as Lessee) and
Rental Schedule No. 5 thereunder (hereinafter referred to together as the
"Lease"),
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the parties agree as follows:
1. Buyer agrees to purchase the Equipment from Seller, and to lease the
Equipment to Seller pursuant to the terms and conditions contained in the Lease.
The Purchase Date for the Equipment and the date that title to the Equipment
shall pass from Seller to Buyer shall correspond with the Lease Commencement
Date as defined in the Lease.
2. Buyer and Seller agree that the Purchase Price of the Equipment is $
360,284.00, which amount shall be payable to Seller by Buyer on the Purchase
Date.
3. Seller agrees that upon payment by Buyer of the Purchase Price, Seller
will deliver to Buyer a Xxxx of Sale, in the form attached hereto as Exhibit A
(the "Xxxx of Sale"), which will convey to Buyer good and marketable title to
the Equipment, free and clear of all liens and encumbrances of any kind or
description. Seller also agrees to provide Buyer with copies of all
documentation received or executed by Seller upon the original acquisition of
the Equipment by Seller.
4. Buyer and Seller agree that the warranties, covenants and agreements
herein contained shall survive the passing of title.
5. Seller agrees to pay any and all applicable Federal, state, county or
local taxes and any and all present or future taxes or other governmental
charges levied upon or created by the sale of the Equipment hereunder, including
sales, use, or occupation taxes due upon the purchase by Buyer.
6. To induce Buyer to enter into this Sale and Leaseback Agreement ("this
Agreement") and with the knowledge that Buyer is doing so in reliance upon these
representations and warranties, Seller represents and warrants to Buyer that (i)
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, with full power to
enter into this Agreement; (ii) the person who has executed this Agreement and
who shall execute the Xxxx of Sale has the authority to bind Seller; (iii) the
execution, delivery and performance of this Agreement and the sale and leaseback
of the Equipment by Seller pursuant to the Lease will not conflict with or be a
breach of any provisions of the Certificate of Incorporation or By-Laws of
Seller or any law (including fraudulent conveyance laws), judgment, writ,
injunction, decree, award, rule or regulation of any court, administrative
agency or other governmental authority, or of any indenture or other agreement
to which Seller is a party or by which it is bound, or constitute a default
under any thereof; (iv) this Agreement and the Xxxx of Sale, when executed and
delivered to Buyer, will be a duly authorized, valid and binding agreement of
Seller enforceable against Seller in accordance with the respective terms
thereof and enforceable against purchasers from and
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creditors of Seller; (v) no filing, giving of notice or publication is required
in connection with the sale and leaseback or if required such filing, notice or
publication has been duly made and given; (vi) no vote or consent of, or notice
to, the holders of any class of stock of Seller is required, or if required,
such vote, consent or notice has been obtained or given, to authorize the
execution, delivery and performance of this Agreement and the Xxxx of Sale by
Seller; (vii) Seller has and is transferring to Buyer title to the Equipment
free and clear of all liens and encumbrances of any kind or description; and
(viii) no consent, approval, withholding of objection or other authorization of
or by any court, administrative agency, other governmental authority or any
other person is required, except such consents, approvals or other
authorizations which have been duly obtained and are in full force and effect,
in connection with the execution, delivery or performance by Seller or the
consummation by Seller, of the transactions contemplated by this Agreement.
Seller hereby agrees to deliver to Buyer, upon the Lease Commencement Date of
the Lease, an opinion of Seller's counsel, substantially in the form attached
hereto as Exhibit B, to the effect that the above representations of Seller are
true and correct.
7. Seller warrants that it has taken all action necessary to obtain all
agreements, warranties and indemnifications applicable to the Equipment which
are normally provided by the manufacturer to its customers. Seller hereby
assigns to Buyer all of its right, title and interest in and to all such
agreements, warranties and indemnifications. To the extent assignable, Seller
warrants that all such agreements, warranties and indemnifications are
assignable to Buyer.
8. Buyer and Seller agree that this Agreement and all documents attached
hereto shall inure to the benefit of and shall be binding upon Seller and Buyer,
their subsidiaries, successors and assigns, except that the assignee of Buyer
shall not be required to perform any of the obligations of Buyer and any
assignment by Buyer shall not relieve Buyer of its obligations hereunder. Seller
shall not assign any interest in this Agreement or in the documents attached
hereto without Buyer's written consent.
9. Seller agrees that all obligations of Buyer are expressly contingent
and conditional upon: (a) Seller executing and delivering the Lease for the
Equipment in a form which will constitute a valid, binding and legal obligation
and agreement of Seller and which is acceptable to Buyer; (b) Seller executing a
written Certificate of Inspection and Acceptance in the form required by the
Lease; and (c) Seller delivering any and all instruments required by Buyer under
the Lease in a form acceptable to Buyer.
10. The entire agreement between the parties with respect to the subject
matter hereof is contained in this Agreement and the Lease and the Schedules and
Exhibits referenced herein and therein. There are no understandings, agreements,
representations or warranties, express or implied, respecting this Agreement or
the Lease or the Equipment purchased hereunder and leased thereunder except as
specifically set forth in this Agreement, the Lease, and the Schedules and
exhibits hereto and thereto. Buyer shall not be liable for any indirect, special
or consequential damages, in connection with or arising out of the furnishing,
performance or use of any item of the Equipment or services provided for in this
Agreement, nor shall Buyer be liable in whole or in part for any event beyond
its control.
11. Any notice or other communication required or permitted to be given by
either party hereto to the other party shall be deemed to have been given upon
its receipt, in writing, by the receiving party at its address set forth below,
or at such other address as the receiving party shall have furnished to the
other party by notice pursuant to this paragraph.
If to Seller VION Pharmaceuticals, Inc.
Xxxx Xxxxxxx Xxxx
Xxx Xxxxx, XX 00000
If to Buyer FINOVA Technology Finance, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
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12. Buyer and Seller agree that this Agreement and the Xxxx of Sale shall
be governed by and construed in accordance with the laws of the State of
Connecticut (other than the conflicts of laws provisions) and that any legal
action or proceeding arising out of this Agreement or the Xxxx of Sale shall be
brought in any state or federal court sitting in the city of Hartford in the
State of Connecticut. Buyer and Seller hereby irrevocably consent and submit to
the exclusive personal jurisdiction of said courts and irrevocably agree that
all claims in any such action or proceeding may be heard, determined in and
enforced by any such court. Seller irrevocably consents to the service of
summons, notice, or other process relating to any such action or proceeding by
delivery thereof to it by hand or by mail in the manner set forth in the
provisions of this Agreement on notices.
13. Buyer and Seller waive any and all right to trial by jury in any
action or proceeding relating in any way to this Agreement or the Xxxx of Sale.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date set forth below by their duly authorized corporate
officers.
FINOVA TECHNOLOGY FINANCE, INC. ("Buyer") VION PHARMACEUTICALS, INC.("Seller")
By: /s/ Xxxxx X Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
Name (typed): Xxxxx X Xxxxxxxxx Name (typed:) Xxxxxx X. Xxxxx
Title: Director - Contract Administration Title: Vice President Finance
Date: 12/10/97 Date: 12/8/97
Attachments:
Exhibit A - Xxxx of Sale
Schedule A - List of Equipment
F36A(2)
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