Exhibit 10.22
SALE AND LEASEBACK AGREEMENT
THIS SALE AND LEASEBACK AGREEMENT (this "Agreement") is made as of December
30, 1997, among Dyax Corp., a Delaware corporation ("Seller"), and Transamerica
Business Credit Corporation, a Delaware Corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the owner of the equipment more particularly described
on Exhibit II hereto (the "Equipment");
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Equipment; and
WHEREAS, Buyer, as a condition to such purchase, wishes to lease to Seller
and Seller wishes to lease from Buyer the Equipment under the terms and
conditions of the Master Lease Agreement dated as of December 30, 1997 and
Schedule No. 1 thereto (collectively, as amended, supplemented or otherwise
modified from time to time, the "Lease") between Buyer, as lessor, and Seller,
as lessee.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. AMOUNT AND TERMS OF PURCHASE.
(a) Subject to the terms and conditions of this Agreement, and in
reliance upon the representations and warranties of the Seller herein set forth,
the Buyer agrees to purchase all of the Sellers' right, title and interest in
and to all of the Equipment such that the Buyer will become the owner of all
such Equipment for all purposes whatsoever. The Seller hereby agrees that the
Buyer is under no obligation to purchase any other equipment now or in the
future and shall not assert a claim that the Buyer may have any such obligation.
(b) The price to be paid by the Buyer with respect to the purchase of
the Equipment (the "Purchase Price") is $_______. The Purchase Price shall be
payable to the Seller on the Lease Commencement Date (as defined in the Lease).
(c) The Seller shall pay any and all applicable federal, state, county
or local taxes and any and all present or future taxes or other governmental
charges arising in connection with the sale of the Equipment hereunder,
including sales, use or occupation taxes due upon the purchase by the Buyer.
(d) The purchase of the Equipment shall be evidenced by a xxxx of
sale, substantially in the form attached hereto as Exhibit A (the "Xxxx of
Sale"), duly executed by the Seller.
2. CONDITIONS TO PURCHASE. The obligation of the Buyer to purchase the
Equipment is subject to the following conditions:
(a) The Buyer shall have received this Agreement, duly executed by the
Seller.
(b) The Buyer shall have received the Xxxx of Sale, duly executed by
the Seller.
(c) The Buyer shall have received the Lease, duly executed by the
Seller.
(d) The Buyer shall have received resolutions of the Board of
Directors of the Seller approving and authorizing the execution, delivery and
performance by the Seller of this Agreement, the Lease and the notices and other
documents to be delivered by the Seller hereunder and thereunder (collectively,
the "Sale and Leaseback Documents").
(e) The Buyer shall have received the certificate of title or similar
evidence of ownership with respect to each item of Equipment and Uniform
Commercial Code financing statements covering the Equipment in form and
substance satisfactory to the Buyer, duly executed by the Seller.
(f) No material adverse change has occurred with respect to the
business, prospects, properties, results of operations, assets, liabilities or
condition (financial or otherwise) of the Seller and its affiliates, taken as a
whole, since December 31, 1996.
(g) The Buyer shall have received all warranties and other
documentation received or executed by Seller in connection with the original
acquisition of the Equipment by the Seller (and by its execution hereof, the
Seller hereby assigns to the Buyer all such warranties and other Documentation).
(h) The Buyer shall have received an opinion of Seller's counsel,
substantially in the form attached hereto as Exhibit B.
(i) The Buyer shall have received such other approvals, opinions or
documents as the Buyer may reasonably request.
3. REPRESENTATIONS AND WARRANTIES. To induce the Buyer to enter into this
Agreement, the Seller represents and warrants to the Buyer that:
(a) The Seller is duly authorized to execute, deliver and perform its
obligations under each of the Sale and Leaseback Documents and all corporate
action required on its part for the due execution, delivery and performance of
the transactions contemplated herein and therein has been duly and effectively
taken.
(b) The execution, delivery and performance by the Seller of each of
the Sale and Leaseback Documents and the consummation of the transactions
contemplated herein and therein does not and will not violate any provision of,
or result in a default under, the Seller's Articles or Certificates of
Incorporation or By-laws or any indenture or agreement to which the Seller is a
party or to which its assets are bound or any order, permit, law, statute, code,
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ordinance, rule, regulation, certificate or any other requirement of any
governmental authority or regulatory body to which the Seller is subject, or
result in the creation or imposition of any mortgage, deed of trust, pledge,
security interest, lien or encumbrance of any kind upon or with respect to the
Equipment or any proceeds thereof, other than those in favor of the Buyer as
contemplated by the Sale and Leaseback Documents.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Seller of any of the Sale and
Leaseback Documents to which it is a party.
(d) Each Sale and Leaseback Document to which the Seller is a party
constitutes or will constitute, when delivered hereunder, the legal, valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its respective terms, except as such enforceability may be (i) limited by
the effect of applicable bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally or (ii) subject to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding at equity or at law).
(e) There are no actions, suits or proceedings pending, threatened
against or affecting the Seller which seek to enjoin, prohibit or restrain the
consummation of any of the transactions contemplated hereby or by the other Sale
and Leaseback Documents.
(f) Each item of Equipment is owned by the Seller free and clear of
any liens and encumbrances of any kind or description. Upon purchase of the
Equipment hereunder, the Buyer will acquire good and marketable title in and to
the Equipment.
All representations and warranties herein shall survive the execution of this
Agreement and the purchase of the Equipment.
4. INDEMNITIES. The Seller agrees to indemnify, defend and save harmless
the Buyer and its officers, directors, employees, agents and attorneys, and each
of them (the "Indemnified Parties"), from and against all claims, actions, suits
and other legal proceedings, damages, costs, interest, charges, counsel fees and
other expenses and penalties (collectively, the "Indemnified Amounts") which any
of the Indemnified Parties may sustain or incur by reason of or arising out of
(i) the Seller's ownership of any Equipment prior to the date on which such
Equipment is sold to the Buyer, or the Seller's acts or omissions prior to such
date under, in connection with or relating to such Equipment or any of the Sale
and Leaseback Documents, (ii) the operation, maintenance or use of such
Equipment prior to such date, (iii) the accuracy of any of the Seller's
representations or warranties contained in any of the Sale and Leaseback
documents, (iv) the breach of any of the Seller's covenants contained in any of
the Sale and Leaseback Documents, (v) any loss or damage to any Equipment in
excess of the deductible which is not paid by insurance or (vi) any sales, use,
excise and other taxes, charges and fees (including, without limitation, income,
franchise, business and occupation, gross receipts, sales, use, licensing,
registration, titling, personal property, stamp and interest equalization taxes,
levies, imposts, duties, charges or withholdings of any nature), and any fines,
penalties or interest thereon, imposed or levied by any governmental body,
agency or tax authority upon or
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in connection with the Equipment, its acquisition, ownership, delivery, leasing,
possession, use or relocation or otherwise in connection with the transactions
contemplated by each Sale and Leaseback Document.
5. REMEDIES. Upon the Sellers' violation of or default under any
provision of this Agreement, the Buyer may (subject to the provisions of the
other Sale and Leaseback Documents) proceed to protect and enforce its rights
either by suit in equity or by action at law or both, whether for the specific
performance of any covenant or agreement contained herein or in aid of the
exercise of any power granted in any Sale and Leaseback Document; it being
intended that the remedies contained in any Sale and Leaseback Document shall be
cumulative and shall be in addition to every other remedy given under such Sale
and Leaseback Document or now or hereafter existing at law or in equity or by
statute or otherwise.
6. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement, nor consent to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Buyer, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
7. NOTICES, ETC. All notices and other communications provided for
hereunder shall be in writing and sent:
if to the Seller, at its address at:
Dyax Corp.
One Xxxxxxx Square
Building 000, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Director of Finance
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
if to the Buyer, at its address at:
Transamerica Business Credit Corporation
Technology Finance Division
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Assistant Vice President, Lease Administration
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
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with a copy to:
Transamerica Business Credit Corporation
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
or to such other address as shall be designated by such party in a written
notice to the other party. All such notices shall be deemed given (i) if sent by
certified or registered mail, three days after being postmarked, (ii) if sent by
overnight delivery service, when received at the above stated addresses or when
delivery is refused and (iii) if sent by facsimile transmission, when receipt of
such transmission is acknowledged.
8. NO WAIVER; REMEDIES. No failure on the part of the Buyer to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
9. BENEFIT. Without the prior written consent of the Buyer, the Seller
may not transfer, assign or delegate any of its rights, duties or obligations
hereunder.
10. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Seller and the Buyer and their respective successors and assigns.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall constitute an original and all of
which taken together shall constitute one and the same agreement.
13. SEVERABILITY. If one or more of the provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein, and any other application thereof, shall not in any way be affected or
impaired thereby.
14. SUBMISSION TO JURISDICTION. ALL DISPUTES ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT BETWEEN THE PARTIES HERETO, WHETHER SOUNDING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE AND FEDERAL
COURTS LOCATED IN ILLINOIS, AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY BE
TAKEN; PROVIDED, HOWEVER, THAT THE BUYER SHALL HAVE THE RIGHT, TO THE EXTENT
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PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE SELLER OR ITS PROPERTY IN
ANY LOCATION REASONABLY SELECTED BY THE BUYER IN GOOD FAITH TO ENABLE THE BUYER
TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF THE BUYER. EACH PARTY AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS, SETOFFS OR CROSS-CLAIMS IN ANY PROCEEDING BROUGHT BY THE BUYER;
IT BEING UNDERSTOOD THAT THIS SENTENCE DOES NOT PRECLUDE THE SELLER FROM
ASSERTING COMPULSORY COUNTERCLAIMS. THE SELLER WAIVES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT IN WHICH THE BUYER HAS COMMENCED A PROCEEDING,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
FORUM NON CONVENIENS.
15. JURY TRIAL. THE PARTIES HERETO EACH HEREBY WAIVE TO THE FULLEST EXTENT
PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
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