EXHIBIT 10.1
COLUMBIA UNIVERSITY MEDICAL CENTER
LICENSE AGREEMENT
AGREEMENT made as of, August 1, 2005 between THE TRUSTEES OF COLUMBIA
UNIVERSITY IN THE CITY OF NEW YORK ("Licensor"), having an office c/o Executive
Director, Audubon Research Park, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
Neurologix, Inc. ("Licensee"), having an office at Xxx Xxxxxx Xxxxx, Xxxx Xxx,
XX, 00000.
WITNESSETH:
WHEREAS, Licensee desires to acquire a license to use space at the
Audubon Business and Technology Center in the Xxxx Xxxxxxx Xxxxxx Building (the
"Building"), located at 0000 Xxxxxxxx in the City, County and State of New
York; and
WHEREAS, Licensor is agreeable to granting to Licensee a license to
use space in the Building on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties agree as follows:
1. LICENSE. Licensor does hereby grant to Licensee a
nontransferable license to use certain space (the "Licensed Space") on the 5th
floor of the Building as more particularly shown on Exhibit "A" annexed hereto
and made a part hereof.
2. TERM. The term of this Agreement (the "Term") shall
commence on the date hereof (the "Commencement Date"), and shall, unless sooner
terminated in accordance with the terms hereof or pursuant to law, continue
until July 31, 2006 (the "Expiration Date").
3. CONDITION OF PREMISES. Licensee acknowledges that it has
inspected the Licensed Space and agrees to take the Licensed Space "as is"
without any work being done therein by Licensor, and without any obligation
upon Licensor to make any contribution toward or to assume the performance of
any work in order to prepare the Licensed Space for use by Licensee. Licensee
acknowledges that all materials, fixtures and equipment, if any, which Licensor
may elect to make available for Licensee's use are, and shall be and remain,
the property of Licensor. Licensee acknowledges that Licensor has not made and
does not make any representations or warranties to Licensee, whether directly
or indirectly, with respect to the Licensed Space or the use or proposed use
thereof by Licensee.
4. USE. Licensee shall use the Licensed Space solely as
laboratory and office space. Prior to taking occupancy of the Licensed Space,
Licensee shall submit to Licensor for approval, Licensee's Regulatory
Compliance Plan (the "Plan") which Plan shall (a) identify those activities of
and materials to be used by Licensee which are or may be subject to
Environmental Legal Requirements (as hereinafter defined) or other Legal
Requirements (as hereinafter defined) and (b) detail Licensee's plans and
procedures for compliance with Environmental Legal Requirements, Legal
Requirements and Insurance Requirements (as hereinafter defined) as to each
specific regulated material and activity. From time to time, at any time during
the Term, Licensee shall revise the Plan to reflect any changes in its
activities, materials, Environmental Legal Requirements, Legal Requirements or
Insurance Requirements. The Plan and all such revisions shall be subject to
Licensor's prior review and approval.
5. FEE. (a) Licensee agrees to pay to Licensor as and for the
use of the Licensed Space during the Term an annual amount (the "License Fee")
as set forth on Exhibit "B" annexed hereto and made a part hereof. The License
Fee shall be paid in monthly installments as set forth on Exhibit B, in
advance, on the first day of each and every month during the Term, without
offset or deduction except that the first monthly installment shall be paid
upon execution hereof. If the Commencement Date shall occur on a day other than
the first day of a calendar month or if the Expiration Date shall occur on a
day other than the last day of, a calendar month, the License Fee for such
calendar month shall be appropriately prorated.
(b) All other sums of money as shall become due and
payable by Licensee to Licensor hereunder (collectively, "License
Consideration") shall be paid to Licensor within ten (10) days after receipt by
Licensee of bills or notice from Licensor to Licensee identifying the same. If
Licensee shall fail to pay any License Consideration within such ten (10) day
period, or shall fail to pay any installment of the License Fee within ten (10)
days after it is due, such unpaid amounts shall bear interest at the rate per
annum equal to the lesser of (i) two percent (2%) plus the base rate charged by
Citibank, N.A. and in effect during the period such amounts are due and unpaid
and (ii) the maximum rate permitted by law, from the due date of such payment
to the date paid to Licensor.
(c) If Licensee shall default in perforating any
term, covenant or condition of this Agreement which shall involve the
expenditure of money by Licensee to third parties, and such default shall
continue beyond applicable 'notice and grace period, Licensor may (but shall
not be obligated to) make such payment or, on behalf of Licensee, expend such
sum as may be necessary to perform or fulfill such term, covenant or condition.
All sums so paid or expended by Licensor shall be deemed to be License
Consideration and shall be payable by Licensee to Licensor in accordance with
Paragraph 5(b) above. No such payment or expenditure by Licensor shall be
construed as a waiver of Licensee's default or of Licensee's obligation to
perform any term, covenant or condition of this License Agreement nor shall it
affect any other right or remedy of Licensor under this License Agreement.
6. COVENANTS AND WARRANTIES. Licensee covenants and warrants:
(a) at Licensee's sole cost and expense, to keep and
maintain the Licensed Space in good order and condition, to notify Licensor of
any needed repairs, which repairs shall be performed by Licensor at Licensee's
sole cost and expense, and to quit and surrender the Licensed Space to Licensor
upon the expiration or earlier termination of this Agreement in as good and
proper order and condition as at the Commencement Date, reasonable wear and
tear excepted;
(b) at Licensee's sole cost and expense, to comply
promptly with (1) all presently existing or hereafter enacted laws, orders,
ordinances, rules, regulations and requirements of, and to keep in full force
and effect all permits and licenses required pursuant to, all federal, state,
municipal and local governments and their departments, agencies, commissions,
boards and (.)officers or any other body exercising similar jurisdiction and
any other governmental agency having jurisdiction over the Licensed Space
(collectively, "Legal Requirements"); (2) all orders, rules, regulations,
requirements and recommendations of the New York Board of Fire Underwriters or
the Insurance Service Office or any other body exercising the same or similar
functions and having jurisdiction or cognizance of all or any part of the
Licensed Space or the Building (collectively, "Insurance Requirements"); (3)
any and all policies and procedures of Licensor (including, without limitation,
Licensor's Joint Radiation Safety Committee and Licensor's Office of
Environmental Health and Safety) governing the use, handling or disposal of
Hazardous Materials (as hereinafter defined) by its tenants, licensees,
contractors, employees or researchers, now or hereafter in effect, and (4) any
applicable federal, state or local statute, code, ordinance, rule or
regulation, any judicial or administrative order or judgment applicable to
Licensee or the Licensed Space and any provision or condition of any permit,
license, franchise, concession, agreement or other authorization binding on
Licensee relating to (i) the protection of the environment, the safety and
health of persons (including employees) or the public welfare, (ii) the actual
or potential release, discharge, disposal or emission (whether past or present)
of any Hazardous Materials or (iii) the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, generation or handling of any
Hazardous Materials (collectively, "Environmental Legal Requirements"). The
term "Hazardous Materials" shall mean any flammable, explosive, radioactive,
chemical or infectious materials, hazardous (or biohazardous) materials or
wastes, medical wastes, hazardous or toxic substances, pollutants, gas, vapor,
radiation, chemical or related materials, asbestos or any material containing
asbestos, or any other substance or materials as defined in or regulated by any
local, state or federal law or ordinance or regulation promulgated pursuant
thereto;
(c) not to use, except to identify Licensee's
address (i) as part of its mailing address on letterhead and other similar
materials or (ii) for purposes of Licensee's publications, the name of Licensor
or Columbia University or any of its officers, trustees, agents, employees,
students or faculty members for any purpose whatsoever without receiving the
prior written approval of Licensor. Without limiting the generality of the
foregoing, Licensee shall not conduct its operations at the Licensed Space
under any name which includes the word "Columbia", or otherwise hold itself or
its business out as having any affiliation with Licensor or Columbia University
or Columbia-Presbyterian Medical Center;
(d) to comply strictly with the Plan (as defined in
Paragraph 4 hereof);
(e) not to use or permit the use of biohazardous
agents requiring a degree of containment in excess of that described as
National Institutes of Health Biosafety Xxxxx 0, as defined in the U.S.
Department of Health and Human Services, Public Health Service, Centers for
Disease Control and Prevention and National Institutes of Health, Biosafety in
Microbiological and Biomedical Laboratories, dated May, 1993 and any updates or
revisions thereto (the "DHH Specifications");
(f) to conduct all scientific research and
development activities in conformity with at least the minimum practices,
equipment and facilities recommended for such activities in the DHH
Specifications; and
(g) not to use or permit the use of any human
subjects or live and whole dead animals (including, without limitation, live
and whole dead mice and rats) on or at the Licensed Space for any research
purposes. In the event that Licensee at any time during the Term shall desire
to (a) use or permit the use of human subjects or live or whole dead animals
for research at the Building or (b) use or permit the use of any of the
facilities of Licensor to house any live or whole dead animals, Licensee shall
forward a request with appropriate back-up documentation, including, without
limitation, a detailed description of Licensee's proposed research, to Licensor
at the address set forth in Paragraph 17 hereof. Upon receipt of such notice
and back-up documentation, Licensor shall review such request, provided,
however, that Licensor shall, in its sole and absolute discretion, have no
obligation to consent to Licensee's request.
7. INSURANCE. Licensee shall, at Licensee's sole cost and
expense, obtain and maintain the following types of insurance in not less than
the indicated amounts with insurance carriers reasonably acceptable to Licensor
and otherwise in compliance with Exhibit "C" annexed hereto and made a part
hereof.
(a) Workers' Compensation and Employer's Liability
insurance with respect to all persons employed by Licensee at the Licensed
Space with a limit of liability in accordance with applicable law in the case
of Workers' Compensation and with a limit of liability of not less than the
following in the case of Employer's Liability:
Bodily Injury by Accident - $100,000 each accident;
Bodily Injury by Disease - $500,000 policy limit;
Bodily Injury by Disease - $100,000 each employee;
(b) Comprehensive General Liability (bodily injury
and property damage) with a combined single limit of liability for bodily
injury and property damage of $2,000,000 per occurrence. Licensor shall be
named as an additional insured under this policy;
(c) "All Risk" property insurance (including
breakage of glass and water damage) to all property of Licensee, including all
alterations, within the Licensed Space in an amount equal to the replacement
cost of such property; and
(d) Such different or the same types of insurance
set forth above in such amounts as may from time to time be reasonably required
by Licensor against such other insurable hazards as at the time are commonly
insured against in the case of premises similarly situated.
8. DAMAGE AND DESTRUCTION. (a) If the Licensed Space or any
part thereof shall be damaged by fire or other casualty, Licensee shall give
immediate notice thereof to Licensor and this Agreement shall continue in full
force and effect, unless Licensor shall elect to terminate this Agreement as
set forth below. In the event that this Agreement shall not be so terminated,
Licensor shall restore the Licensed Space at Licensor's expense and the
Licensee Fee and License Consideration shall be proportionately abated during
the period in which Licensor is restoring the Licensed Space if all or any
portion of the Licensed Space is unusable by Licensee for the purposes set
forth in Paragraph 4 above during such period. Licensee's liability for the
full amount of the Licensee Fee and License Consideration shall resume five (5)
days after written notice from Licensor that the Licensed Space is
substantially ready for Licensee's occupancy.
(b) In the event that the Licensed Space is rendered
wholly or substantially unusable (whether or not the Licensed Space has been
damaged in whole or in part) by fire or other casualty (of which fact Licensor
shall be the sole judge), Licensor may elect to terminate this Agreement by
written notice to Licensee given within sixty (60) days after such fire or
casualty, specifying the date for the expiration of this Agreement, which shall
be no more than thirty (30) days after the giving of such notice.
(c) If Licensor shall fail within thirty (30) days
after notice by Licensee to Licensor of such casualty to restore the damaged
portion of the Licensed Space to substantially the condition existing prior to
such casualty, Licensee may elect to terminate this Agreement by written notice
to Licensor given prior to completion of such restoration, specifying the date
for the expiration of this Agreement, which shall be no more than thirty (30)
days after the giving of such notice.
(d) Nothing contained herein shall relieve Licensee
from liability that may exist as a result of damage from fire or other
casualty. Notwithstanding the foregoing, each party shall look first to any
insurance in its favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible and to the extent
permitted by law, Licensor and Licensee each hereby releases and waives all
rights of recovery against the other or anyone claiming through or under the
other, by way of subrogation or otherwise. The foregoing release and waiver
shall be in force only if both parties' insurance policies contain a clause
providing that such a release or waiver shall not invalidate the insurance and
also provided that such clause can be obtained without additional premium; it
being agreed, however, that the party whose insurance carrier requires such
additional premium shall notify the other party thereof and such other party
shall have the right to pay such additional premium.
(e) Licensee acknowledges that Licensor will not
carry insurance on the improvements, furniture, furnishings, fixtures and
equipment and other personal property required to be insured by Licensee
pursuant to Paragraph 7(a) above and Licensor will not be obligated to repair
any damage thereto or replace the same.
(f) Licensee hereby waives the provisions of Section
227 of the Real Property Law and agrees that the provisions of this Paragraph 8
shall govern and control in lieu thereof.
9. ALTERATIONS. Licensee shall not make any improvements,
additions, alterations or other changes, except for cosmetic and decorative
alterations, to the Licensed Space, without the prior written consent of
Licensor in each instance.
10. UTILITIES AND SERVICES. (a) Licensee shall have 24-hour,
7-day-a-week access to the Building and passenger elevator service to the
Licensed Space. Freight elevator service shall be available on business days
from 8 a.m. to 4 p.m. If Licensee shall require freight elevator service during
any other time, Licensor shall furnish same provided that Licensee gives
Licensor advance notice and that Licensee pays, on demand, as License
Consideration, Licensor's then established charges therefor.
(b) Licensor shall provide electric energy to the
Licensed Space. Licensee shall pay Licensor for electricity consumed by
Licensee in the Licensed Space. Licensor will permit the electrical risers,
feeders and wiring in the Building serving the Licensed Space to be used by
Licensee for such purpose to the extent that they are available, suitable, safe
and within the plan and design capacities of the Building. Licensee shall not
be required to pay Licensor more than the amount calculated by applying to the
measured demand and/or usage of electrical current in or furnished to the
Building, the average rate per unit of measurement, inclusive of applicable
taxes, surcharges, time of day and other charges, payable by Licensor for
electrical current furnished to the Licensed Space by the utility company
serving the Building. Should any tax or charge in the nature of a tax be
imposed upon Licensor's receipts from the sale or resale of electrical current
to the Licensed Space, then the pro rata share thereof allocable to the
electrical current furnished to the Licensed Space shall be passed on to and
paid by Licensee. Bills for Licensee's usage of electrical current shall be
paid within ten (10) days by Licensee as License Consideration. If due to any
change in Legal Requirements Licensor shall not be permitted to provide
electric energy to the Licensed Space, then this Agreement shall not be
affected and Licensee shall arrange to obtain electric energy directly from the
public utility company furnishing electrical service to the Building. In such
event Licensee shall no longer pay Licensor for electricity consumed.
(c) Licensee's use of electrical energy shall never
exceed the capacity of the then existing risers or wiring installation, in each
case. In order to insure that such electrical capacity is not exceeded and to
avert possible adverse effect upon the Building's electrical system, Licensee
shall not, without the prior written consent of Licensor, make or perform or
permit any alteration to wiring installations or other electrical facilities in
or serving the Licensed Space or any additions to the electrical fixtures,
machines or equipment or appliances in the Licensed Space. Licensor shall not
be obligated to consent to any such alteration or installation if, in
Licensor's judgment, the same are unnecessary or will cause permanent damage or
injury to the Building, the Building equipment or the Licensed Space or will
cause or create a hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants. Only rigid conduit or such other wiring or conduit as shall not
violate Legal Requirements will be allowed.
(d) Licensor shall have no liability to Licensee for
any loss, damage or expense which Licensee may sustain or incur by reason of
any change, failure, inadequacy or defect in the supply or character of the
electrical energy or emergency generator back-up power furnished to the
Licensed Space or if the quantity or character of the electrical energy is no
longer available or suitable for Licensee's requirements, except for any actual
damage suffered by Licensee by reason of any such failure, inadequacy or defect
caused by Licensor's gross negligence, and then only after actual notice
thereof.
(e) Licensor shall make available from the public
water supply to a point or points at or near the Licensed Space selected by
Licensor such quantities of domestic cold and hot water as Licensor, in its
sole and absolute judgment, deems adequate for normal laboratory and ordinary
lavatory, cleaning and drinking purposes. In the event that the Licensee
requires hot or cold water for any purposes other than those specified in the
preceding sentence, including, but not limited to high volume laboratory usage,
Licensee shall pay Licensor, as License Consideration, for water consumed, as
shown on separate submeters for cold and hot water maintained by Licensee,
together with all sewer charges and any other rent, tax, levy or charge based
thereon which now or hereafter is assessed, imposed or a lien upon the Licensed
Space or the Building, as and when bills are rendered. Payment for cold water
shall be at the rate charged by the City for cold water. Payment for hot water
shall be at three (3) times such rate. Licensor shall have no liability to
Licensee for any loss, damage or expense which Licensee may sustain or incur if
the quantity or character of water service changes or is no longer available or
suitable for Licensee's purposes.
(f) Licensee shall notify Licensor, within ten (10)
days after the Commencement Date, of the water meter number of each water meter
serving the Licensed Space and whether such meter is for hot water or cold
water. If any such meter is installed subsequent to the taking of possession by
Licensee, then Licensee shall notify Licensor of such information within ten
(10) days after such installation.
(g) Licensor shall make available to a point or
points at or near the Licensed Space such piping, systems, equipment and
facilities as Licensor, in its sole and absolute judgment, deems adequate to
provide gas service for normal laboratory consumption. Licensee shall pay
Licensor, as License Consideration, for any and all gas consumed. Meters may be
installed and maintained by Licensor, at Licensee's sole cost and expense. The
rates charged by Licensor to Licensee for gas consumption shall not exceed the
rates charged by the utility company providing such service. Payment for gas
consumed by Licensee in the Licensed Space shall be made by Licensee as License
Consideration within ten (10) days of Licensor's xxxx therefor. Licensee shall
make no alteration, addition or repair to the gas connection, installations,
equipment and/or facilities without the prior written consent of Licensor in
each instance. Licensor shall have no liability to Licensee for any loss,
damage or expense which Licensee may sustain or incur if the quantity or
character of the gas service is changed or is no longer available or suitable
for Licensee's requirements.
(h) Licensor shall, without additional charge to
Licensee, supply hot water for heat, and chilled water for air conditioning and
ventilation to the Licensed Space through existing Building risers, radiators
and air handlers during appropriate seasons as may reasonably be required by
Licensee for ambient heating and cooling seven days a week, 24 hours a day.
(i) Licensor shall provide cleaning services in
accordance with the specifications annexed hereto as Exhibit D and made a part
hereof.
(j) Licensor shall supply compressed air and vacuum
air to a point or points near the Licensed Space in quantities which Licensor
deems adequate for normal laboratory purposes. If Licensee shall require
additional compressed air and vacuum air in excess of that which Licensor deems
adequate for the purposes set forth herein, Licensor shall furnish same at
Licensor's then established rates and same shall be payable by Licensee, as
License Consideration, within ten (10) days of Licensor's xxxx therefor.
(k) Licensee shall be responsible for the proper
storage and removal from the Licensed Space and the Building and the disposal
of all of Licensee's Hazardous Materials. Licensee shall contract for the
disposal of Hazardous Materials, at Licensee's cost and expense, with vendors
approved by Licensor, in its sole and absolute discretion. In contracting with
any such vendor, Licensor shall endeavor to ensure that Licensee shall receive
the benefit of any volume discount granted to Licensor by such vendor.
11. NO LIENS. (a) Licensee shall have no power to do any act
or to make any contract which may create or give rise to any lien, mortgage or
other encumbrance on the estate of Licensor or any interest of Licensor or
Licensee in the Licensed Space or the Building.
(b) If any lien shall at any time be filed against
the Licensed Space or the Building by reason of any work, labor, services or
materials done for, or supplied to, or claimed to have been done for, or
supplied to, Licensee or anyone holding the Licensed Space through or under
Licensee, Licensee shall cause the same to be discharged of record or
adequately bonded (unless otherwise secured to the satisfaction of Licensor)
within twenty (20) business days after the date Licensee has received notice of
the filing of such lien. If Licensee shall fail to do so, then, Licensor may,
but shall not be obligated to, procure the discharge of the same either by
paying the amount claimed to be due, by deposit in a court of competent
jurisdiction or by bonding, and Licensor may compel the prosecution of an
action for the foreclosure of such lien by the lienor and pay the amount of the
judgment, if any, in favor of the lienor with interest, costs and allowances.
Any amount paid or deposited by Licensor for any such purpose, and all other
expenses of Licensor, including reasonable enemy's fees and disbursements,
shall be deemed to be License Consideration and shall be paid on demand by
Licensee.
12. SUBORDINATION. Licensee acknowledges that this Agreement
is subject and subordinate to any and all ground or underlying leases and to
all mortgages which may now or hereafter affect such leases or the Building and
to all renewals, modifications, consolidations, replacements and extensions of
any such underlying leases and mortgages.
13. NO ASSIGNMENT OR USE BY THIRD PARTIES. Licensee shall not
permit the use or occupancy of all or any part of the Licensed Space by any
third party nor assign its rights nor delegate its duties under this Agreement.
For purposes of this Paragraph 13, a change in control of Licensee shall be
deemed an assignment hereunder. "Change in control" shall be deemed to mean a
change (by transfer or otherwise) in either (a) ownership of fifty percent
(50%) or more of all of the voting stock of a corporation or fifty percent
(50%) or more of all of the legal and equitable interest in a partnership or
other business entity or (b) the possession of the power directly or indirectly
to direct or cause the direction of management and policy of a corporation,
partnership or other business entity, whether through the ownership of voting
securities, by contract, common directors or officers, the contractual right to
manage the business affairs of any such corporation, partnership or business
entity, or otherwise.
14. BROKERAGE. Licensee represents to Licensor that there is
no broker, finder, consultant or similar person acting on behalf of Licensee
entitled to a commission, fee or other compensation in connection with the
consummation of this Agreement and no conversations or prior negotiations were
had by Licensee or anyone acting on behalf of Licensee with any broker, finder,
consultant or similar person concerning the use of the Licensed Space except
for such broker(s), if any, set forth in Exhibit "E" annexed hereto and made a
part hereof. Licensee hereby agrees to pay the commission of any such broker,
finder, consultant or similar person. Licensee shall indemnify and hold
Licensor harmless from and against all liability arising from any claims for
brokerage commissions, finder's fees or other compensation resulting from or
arising out of any alleged conversations, negotiations or actions had by
Licensee or anyone acting on behalf of Licensee with any broker, finder,
consultant or similar person. The provisions of this Paragraph 14 shall survive
the termination of this Agreement.
15. ACCESS TO THE PREMISES. Licensor and Licensor's agents
and employees shall have the right to enter the Licensed Space for any
reasonable purpose, including, without limitation, for purposes of inspection
and repair and monitoring Licensee's activities for compliance with the
Environmental Legal Requirements, Legal Requirements, Insurance Requirements
and the Plan. Except in cases of emergency or where required for effective
inspection and monitoring for health and safety purposes, Licensor shall
provide Licensee with one (1) day prior notice of its intention to enter the
Licensed Space, which notice may be given orally or by telephone provided that
it shall be followed by written notice received by Licensee on the same day as
such oral or telephone notice. Licensee shall acknowledge such notice
"received" by signing a copy thereof and returning it to Licensor within
twenty-four (24) hours of Licensee's receipt, and Licensor may enter the
Licensed Space upon receipt of such copy acknowledged by Licensee or upon
expiration of such 24-hour period, whichever occurs first.
16. INDEMNIFICATION. Licensee agrees that Licensee shall make
no claim against Licensor for any injury or damage to Licensee or to any other
person(s) or for any damage to, or loss (by theft or otherwise) of, any
property of Licensee or of any other person. Licensee further agrees to
indemnify and save Licensor harmless from and against any and all claims by or
on behalf of any person(s), firm(s) or corporation(s) arising from the conduct
or management of or from any work or thing whatsoever done in, on or about the
Licensed Space during the Term, and to indemnify and save Licensor harmless
from and against any and all claims arising from any condition of the Licensed
Space due to or arising from any act or omission or negligence of Licensee or
any of its agents, contractors, servants, employees, licensees or invitees, and
from and against all liabilities, costs and expenses (including, without
limitation, attorneys' fees and disbursements) incurred in or in connection
with any such claim or claims or action or proceeding brought thereon; and in
case any action or proceeding shall be brought against Licensor by reason of
any such claim, Licensee upon notice from Licensor agrees to resist or defend
such action or proceeding and to employ counsel therefor reasonably
satisfactory to Licensor. The provisions of this Paragraph 16 shall survive the
termination of this Agreement.
17. NOTICES. All notices, demands or requests made pursuant
to, under or by virtue of this Agreement must be in writing (whether or not so
stated) and sent either by personal delivery or by nationally recognized
overnight courier service or by certified or registered mail, return receipt
requested, postage prepaid as follows:
To Licensor: Executive Director
Audubon Business & Technology Center
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: (i) Columbia University
Office of the General Counsel
000 Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deputy General Counsel
and to: (ii) KMZ Rosenman
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
To Licensee: Neurologix, Inc.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000
Attention: Mr. Xxxx Xxxxxxx
with a copy to: Neurologix, Inc.
000-00 X. Xxxxx Xxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxx
or to such alternative address(es) as may from time to time be designated by
notice given in the manner provided for in this Paragraph 17. Any such notice,
demand or request shall be deemed to have been rendered or given on the date of
delivery, in the case of personal delivery or delivery by overnight courier, or
on the date which is three (3) business days after mailing.
18. SURRENDER. Upon the termination of this Agreement,
Licensee shall peaceably and quietly leave and surrender to Licensor the
Licensed Space broom clean, in good order and condition, ordinary wear and tear
excepted.
19. SELF-HELP. If Licensee shall default in the performance
of any covenant, provision, agreement or condition of this Agreement, and such
default shall continue beyond applicable notice and grace period, then
Licensor, without waiving such default and without liability to Licensee, may
(but shall not be obligated), perform the same (and shall have access to the
Premises, if necessary, to do so), including, without limitation, the making of
repairs, for the account and at the expense of Licensee. Any amounts paid by
Licensor in connection with the foregoing, shall be deemed to be License
Consideration payable by Licensee to Licensor within ten (10) days of
Licensor's xxxx therefor. The rights of Licensor under this Paragraph 19 shall
be in addition to those set forth in Paragraph 5(c).
20. TERMINATION. (a) Licensor may (but shall not be obligated
to) terminate this Agreement upon five (5) days' notice to Licensee if (i)
Licensee shall default in the payment of the Licensee Fee or License
Consideration for five (5) days after the due date thereof, (ii) Licensee shall
be in default hereunder other than a default set forth in subparagraph (i) of
this Paragraph 20, which default shall continue and shall not be cured for
thirty (30) days after notice thereof to Licensee, or (iii) in the case of a
default other that a default set forth in subparagraph (i) of this Paragraph 20
which for causes beyond Licensee's control cannot with due diligence be cured
within such 30-day period, if Licensee (1) shall not, promptly upon receipt of
such notice advise Licensor of Licensee's intention to institute all steps
necessary to cure such default or (2) shall not institute and thereafter with
reasonable diligence prosecute to completion all steps necessary to cure the
same.
(b) Provided that Licensee shall surrender and
deliver possession of the Licensed Space to Licensor, and shall not be in
default beyond applicable notice and grace period in performing any tern,
covenant, provision or condition of this Agreement, Licensee may terminate this
Agreement with or without cause upon not less than sixty (60) days' prior
written notice to Licensor.
21. SECURITY DEPOSIT. (a) Licensee has deposited the sum of $
7,997.00 with Licensor as security for the full and punctual performance by
Licensee of all of the terms of this Agreement, to be deposited by Licensor in
an interest-bearing account of Licensor's choosing. In the event Licensee
defaults in the performance of any of the terms of this Agreement, Licensor may
use or retain the whole or any part of the security deposited to the extent
required for the payment of any fees or for any sum that Licensor may expend or
may be required to expend by reason of Licensee's default, including any
damages or deficiency in the relicensing or letting of the Licensed Space,
whether accruing before or after summary proceedings or other re-entry by
Licensor. In the case of every such use or retention, Licensee shall, on
demand, pay to Licensor the sum so used or retained which sum shall be added to
the security deposited so that the same shall be replenished to its former
amount. In the event any bankruptcy, insolvency, reorganization or other
creditor-debtor proceedings shall be instituted by or against Licensee, or its
successors or assigns, the security deposited shall be deemed to be applied
first to the payment of such fees due Licensor for all periods prior to the
institution of such proceedings and the balance, if any, of the security
deposited may be retained by Licensor in partial liquidation of Licenser's
damages. If Licensee shall fully and punctually comply with all of the terms of
this Agreement, the security deposited plus any accrued interest thereon (less
an amount equal to one percent per annum on the security deposited not to
exceed the amount of any interest earned on the security deposited for
Licensee's administrative costs in connection with the security deposited)
shall be returned to Licensee after the termination of this Agreement and
delivery of exclusive possession of the Licensed Space to Licensor in
compliance with the provisions of this Agreement.
(b) Any interest accrued with respect to the
security deposited shall be added to and constitute a part of the security
deposited to be held and disposed of by Licensor in accordance with the terms
of this Paragraph 21. Licensor shall not be liable to Licensee for any interest
except for such interest as is actually accrued.
(c) Licensee shall, concurrently with the execution
and delivery of this Agreement, and thereafter at any time upon request by
Licensor, deliver to Licensor a fully completed Form W-9 (Request for Taxpayer
Identification Number and Certification).
(d) Licensee shall not assign or encumber or attempt
to assign or encumber the security deposited and neither Licensor nor its
successors or assigns shall be bound by any such assignment, encumbrance or
attempted assignment or encumbrance.
(e) In the event of a sale or lease of the Building,
Licensor shall have the right to transfer the security deposited to the vendee
or lessee and Licensor shall ipso facto be released by Licensee from all
liability for the return of the security deposited and Licensee shall look
solely to the new licensor for the return of the security deposited. The
provisions hereof shall apply to every transfer or assignment made of the
security deposited to a new licensor.
(f) In the event that the License Fee shall increase
pursuant to the terms of this Agreement, the amount of security deposited shall
be increased so that at all times the security deposited (exclusive of
interest) shall equal one-sixth of the current annual License Fee. Licensee
shall immediately deposit with Licensor the difference between the amount being
held by Licensor as security (exclusive of interest) and the amount required to
be deposited pursuant to this Subparagraph 21(f).
22. CAPTIONS. The captions of the Paragraphs of this
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit or describe the scope of this Agreement nor the intent of
any provision thereof.
23. RELOCATION. At any time and from time to time during the
Term, Licensor shall have the right to relocate Licensee to space in the
Building reasonably comparable in size, location and utility for the purposes
specified in Paragraph 4 above, upon not less than sixty (60) days' notice to
Licensee.
24. MISCELLANEOUS. (a) The covenants and agreements contained
in this Agreement shall apply to, inure to the benefit of, and be binding upon
Licensor and Licensee and upon their respective successors and permitted
assigns.
(b) This Agreement may not be changed, cancelled or
discharged orally, but only by an agreement in writing and signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought. All understandings and agreements between Licensor and Licensee are
merged in this Agreement which represents the entire agreement between the
parties and which fully and completely sets forth all terms and conditions of
the transactions embodied in this Agreement.
(c) If any term or provision of this Agreement or
any portion of a term or provision of this Agreement or the application of any
such term or condition to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected, and each term
and provision of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
(d) This Agreement shall be construed in accordance
with, and governed by, the laws of the State of New York applicable to
agreements made and performed in the State of New York
25. NO LANDLORD - TENANT RELATIONSHIP. Licensee hereby
acknowledges that Licensee acquires no rights as a tenant of the Licensed Space
and that no landlord-tenant relationship is created hereby.
26. JURISDICTION. Licensee acknowledges and agrees that all
disputes arising, directly or indirectly, out of or relating to this Agreement,
and all actions to enforce this Agreement, may be dealt with and adjudicated in
the state courts of New York or the federal courts sitting in New York, and
Licensee hereby expressly and irrevocably submits the person of Licensee to the
jurisdiction of such courts in any suit, action or proceeding arising, directly
or indirectly, out of or relating to this Agreement and hereby irrevocably
designates the Secretary of State of New York as its agent for service of
process in any such suit, action or proceeding.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF
NEW YORK, Licensor
By: /s/ Xxxxx X. Kairbe
-----------------------------------------
Title: Vice President/Administrator
Neurologix,Inc. , Licensee
By: /s/ Xxxxxxx Xxxxxxx, MD
------------------------------------------
Title: President & CEO
