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Exhibit
10.5
INDEMNITY
AGREEMENT
This INDEMNITY AGREEMENT is
entered into as of August 1, 2007 (this
“Agreement”), by and between 454 LIFE SCIENCES
CORPORATION, a Connecticut stock corporation (“454”),
and CURAGEN CORPORATION (“CuraGen”).
WHEREAS, CuraGen is the
tenant under a certain Lease Agreement dated January 12, 2004
by and between CuraGen, as tenant, and ZFI Group, LLC, as landlord
(“Landlord”), with respect to certain premises located
at 15 Commercial Street, Branford, Connecticut (the
“Lease”); and
WHEREAS, pursuant to an
Assignment and Assumption of Lease with Landlord’s Consent
and Release dated August 1, 2007 (the “Effective
Date”) by and among Landlord, CuraGen and 454 (the
“Assignment”), CuraGen has assigned and 454 has assumed
all liabilities and obligations of CuraGen as tenant under such
Lease arising from and after the Effective Date; and
WHEREAS, as an inducement for
CuraGen to assign the Lease to 454, and as an inducement for 454 to
assume the liabilities and obligations of CuraGen thereunder, the
parties have agreed to indemnify each other as provided
herein;
NOW, THEREFORE, for one
dollar and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and in consideration of
the premises and the covenants contained herein, CuraGen and 454 do
hereby covenant and agree as follows:
1. Indemnification .
454 hereby agrees to indemnify and hold harmless CuraGen, and its
successors and assigns, from and against any and all claims,
liabilities, actions, causes of action, losses, costs or expenses
(including, without limitation, any reasonable legal, accounting
and other expenses of experts or third party professionals for
defending any actions or threatened actions) incurred by CuraGen,
or any of such successors or assigns, as a result of 454 defaulting
in or failing to perform any of the tenant’s obligations
under the Lease arising on or after the Effective Date. Curagen
hereby agrees to indemnify and hold harmless 454, and its
successors and assigns, from and against any and all claims,
liabilities, actions, causes of action, losses, costs or expenses
(including, without limitation, any reasonable legal, accounting
and other expenses of experts or third party professionals for
defending any actions or threatened actions) incurred by 454, or
any of such successors or assigns, as a result of CuraGen
defaulting in or failing to perform any of the tenant’s
obligations under the Lease arising prior to the Effective
Date.
2. Indemnification
Procedure . Whenever any demand shall be made upon a party (the
“Indemnified Party”) under the Lease or Assignment for
which the other party (the “Indemnifying Party”) is
required to indemnify the Indemnified Party, the Indemnified Party
shall promptly notify the Indemnifying Party of such demand in
writing and provide a copy of any written document delivered to the
Indemnified Party relating to such demand. No notice need be given
by the Indemnified Party unless and until it has received written
notice of the demand. Within fifteen (15) days of written
notice to the Indemnifying Party of any such
demand, the Indemnified Party shall
either satisfy and pay in full such demand or assume the defense of
such demand at its sole cost and expense with counsel approved by
the Indemnified Party in its reasonable discretion. If the
Indemnifying Party shall fail to satisfy any such demand or fail to
assume in a reasonable manner the defense of any demand arising
under the Lease or Assignment, as applicable, within the time
period set forth above, the Indemnified Party shall be free to
defend, settle, litigate, appeal and otherwise act in its
reasonable discretion, and the Indemnifying Party shall be
obligated to reimburse in full any settlement, judgment or similar
liability and all costs associated therewith including reasonable
out-of-pocket legal fees and disbursements and shall not have any
defense based on the reasonableness or necessity of the Indemnified
Party’s actions or its failure to defend effectively such
demand.
3. Other Rights to
Indemnification . The rights to indemnification and advances
provided by this Agreement shall not be deemed exclusive of any
other rights to which the Indemnified Party may now or in the
future be entitled under any other agreement or any provision of
applicable law.
4. Enforcement
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a. Each party unconditionally
and irrevocably agrees that its execution of this Agreement shall
also constitute a stipulation by which it shall be irrevocably
bound in any court in which a proceeding by the other party for
enforcement of its rights shall have been commenced, continued or
appealed that obligations of each party set forth in this Agreement
are unique and special, and that failure of either party to comply
with the provisions of this Agreement will cause irreparable and
irremediable injury to the other party, for which a remedy at law
will be inadequate. As a result, in addition to any other right or
remedy each party may have at law or in equity with respect to a
violation of this Agreement, each party shall be entitled to
injunctive or mandatory relief directing specific performance by
the other party of its obligations under this Agreement. Each party
further irrevocably stipulates and agrees that it shall not, except
in good faith, raise any objections not specifically relating to
the merits of the other party’s claim.
b. In the event that either
party is subject to or intervenes in any legal action in which the
validity or enforceability of this Agreement is at issue or
institutes any legal action, for specific performance or otherwise,
to enforce its rights under, or to recover damages
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