ASSIGNMENT AND ASSUMPTION OF LEASE WITH LANDLORD’S CONSENT AND RELEASE
Exhibit 10.4
This ASSIGNMENT AND ASSUMPTION OF LEASE WITH LANDLORD’S CONSENT AND RELEASE (“Agreement”) made and entered into as of August 1, 2007, by and among ZFI GROUP, LLC, having a place of business at 000 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000 (hereinafter known as “Landlord”), CURAGEN CORPORATION, a Connecticut corporation, having a place of business at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter known as “Assignor”) and 454 LIFE SCIENCES CORPORATION, a Delaware Corporation, having a place of business at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter known as “Assignee”).
WITNESETH:
WHEREAS, Landlord and Assignor entered into a certain Lease Agreement dated as of January 12, 2004 (the “Lease”) with respect to certain real property with improvements thereon known as 00 Xxxxxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxxxx (the “Premises”); and
WHEREAS, Assignor is desirous of assigning its rights as tenant under the Lease to Assignee; and
WHEREAS, Assignee is desirous of assuming the Lease and all obligations, as tenant, arising thereunder; and
WHEREAS, Assignor is desirous of being released from any future obligations, as tenant, arising under the Lease;
NOW THEREFORE, for the premises set forth above, the promises contained herein and the consideration of one ($1.00) Dollar and other good and valuable considerations received to Assignor’s full satisfaction of Assignee, the parties hereto agree as follows:
1. Capitalized Terms. Except as otherwise defined herein, any and all defined terms used herein shall have the meaning set forth in the Lease.
2. Assignment and Assumption
A. Assignor, as tenant, does herby sell and assign, without recourse, and set over unto Assignee all of the Assignor’s rights and obligations under the Lease, together with all of Assignor’s rights to the leasehold improvements located therein.
B. Assignee hereby unconditionally and absolutely assumes and agrees to perform all of the terms, covenants and conditions of the Lease on the part of the tenant therein required to be performed.
C. Assignor represents to its actual knowledge, without independent investigation, that (a) the Lease is now in full force and effect and has not been amended
or modified in any material respect, except as set forth herein; (b) no rent has been paid for any period commencing after July 31, 2007; and (c) no default exists by Landlord or Assignor under the Lease.
3. Release. Upon the full execution of this Agreement, Landlord and Assignee hereby agree that Assignor is hereby released from any and all obligations and liabilities arising under the Lease on or after the date of this Agreement, except for the payment of rent and any other expenses and costs required to be paid by the Assignee under the Lease. All obligations and liabilities of Assignor for such payments required to be paid under the Lease after the date of this Agreement shall terminate, if not sooner terminated, on March 31, 2009.
4. Notices. Whenever notice is required by conditions of the Lease, such notice shall be given or served in person, or sent by a nationally recognized overnight carrier, or by registered or certified mail, return receipt requested, and addressed as follows:
To Assignor at:
CuraGen Corporation
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxxx
To Tenant at:
Xxxxx Xxxxx, Vice President of Finance and Operations
454 Life Sciences Corporation
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
5. Landlord’s Consent. Landlord by its signature below hereby consents to the Assignment of the Lease by Assignor to Assignee and agrees to the provisions of Paragraph 3.
6. Notice of Assignee/Tenant Default. Landlord agrees to give written notice to Tenant within five (5) days of any default committed under the Lease by Assignee or any other tenant under the Lease. Any notice which is to be given to Assignor shall be deemed sufficiently given if sent by Certified or Registered Mail, postage prepaid, addressed as follows:
| Assignor: | CuraGen Corporation |
| 000 Xxxx Xxxx Xxxxxx |
| Xxxxxxxx, Xxxxxxxxxxx 00000 |
| Attn: Xxxxxxxxx Xxxxxxxx |
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In Witness Whereof, the Assignor, Assignee and Landlord have made, executed and delivered the within instrument as of the _______ day of _______, 2007.
In the Presence of:
| /s/ Xxxxxxxxx X. Xxxxxxxx | ASSIGNOR: CURAGEN CORPORATION | |||||||
| /s/ Xxxxx X. Xxxxx | By: | /s/ Xxxxx X. Xxxxxx | ||||||
| Xxxxx X. Xxxxxx Its EVP/CFO | ||||||||
| /s/ Xxxxxxxxx Xxxxxx | ASSIGNEE: 454 LIFE SCIENCES CORPORATION | |||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||||
| Xxxxx X. Xxxxx Its Vice President of Finance and Operations | ||||||||
| /s/ Xxxxxx X. Xxxxxxxxxx | LANDLORD: ZFI GROUP, LLC | |||||||
| /s/ Xxxxxx Gold | By: | /s/ Xxxxxxxxxxx Xxxx | ||||||
| Name: Xxxxxxxxxxx Xxxx Its: Member | ||||||||
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| STATE OF CONNECTICUT ) | ||||
| ) | ss: Branford | July 30, 2007 | ||
| COUNTY OF NEW HAVEN ) |
Personally appeared Xxxxx X. Xxxxxx, member of CuraGen Corporation, signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed as such officer, and the free act and deed of said corporation, before me.
Xxxxxx X. Xxxxxx
COMMISSIONER OF THE SUPERIOR COURT
NOTARY PUBLIC
MY COMMISSION EXPIRES OCT. 31, 0000
| XXXXX XX XXXXXXXXXXX ) | ||||
| ) | ss: Branford | July 30, 2007 | ||
| COUNTY OF NEW HAVEN ) |
Personally appeared Xxxxx X. Xxxxx, member of 454 Life Sciences Corporation, signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed as such officer, and the free act and deed of said corporation, before me.
Xxxxxx X. Xxxxxx
COMMISSIONER OF THE SUPERIOR COURT
NOTARY PUBLIC
MY COMMISSION EXPIRES OCT. 31, 0000
| XXXXX XX XXXXXXXXXXX ) | ||||
| ) | ss: | July 27, 2007 | ||
| COUNTY OF NEW HAVEN ) |
Personally appeared Xxxxxxxxxxx Xxxx, member of ZFI Group, LLC, signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed as such officer, and the free act and deed of said corporation, before me.
Xxxxxx X. Xxxxxxxxxx
COMMISSIONER OF THE SUPERIOR COURT
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