LICENSE AGREEMENT
AUDUBON
BIOMEDICAL SCIENCE AND TECHNOLOGY PARK
Columbia
University Health Sciences Division
AGREEMENT
made as of; August 1, 2004 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.
W
I T
N E S S E T H
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, 2005 (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 representation 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 these activities 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 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 performing 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 WARRANTS.
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.
2
(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, licensors,
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, "Environment
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);
3
(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 sale 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
4
(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
incurable 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 for the 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 giving 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.
5
(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 than 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 License 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 the Licensor. 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.
6
(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 License 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 License 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 of 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 License, 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 then (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.
7
(h) Licensor
shall, without additional charge to Licensee, supply hot water for heat,
and
chilled water for air conditioning and ventilation to the License Space
throughout 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 at 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) License
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 Licensee for any such purpose,
and all other expenses of Licensor, including reasonable attorney's fees
and
disbursements, shall be deemed to be License Consideration and shall be paid
on
demand by Licensee.
8
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
"G"
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 of where
required for effective inspection and monitoring for health and safety purposes,
Licensor shall provide Licensee with one (1) day prior notice of its attention
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. License 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 License or upon
expiration of such 24-hour period, whichever occurs first.
9
16.
INDEMNIFICATION.
Licensor 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
corporations(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 License Space due to or arising from any act or
omission or negligence of Licensee or any of its agents, contractors, servants,
employees, licenses or invitees, and from and against all liabilities, costs
and
expenses (including, without limitation, attorneys' fees and disbursements)
incurred in or in connections 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 carrier 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
|
||
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Xxxxxx X. Xxxxxxx, Esq.
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To
Licensee:
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Neurologix,
Inc.
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Xxx
Xxxxxx Xxxxx
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Xxxx
Xxx, XX 00000
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Attention:
Mr. Xxxx Xxxxxxx
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10
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With
a copy to:
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Neurologix,
Inc.
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000-00
X. Xxxxx Xxxxxxx Xxxxxxx
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Xxxxxx
Xxxx, XX 00000
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Attention:
Xx. Xxxxxx Xxxxxx
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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 or
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
License 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 than 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 in 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 term, 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.
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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 License'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 to the institution of such proceedings and the balance,
if any, of the security deposited may be retained by Licensor in partial
liquidation of Licensor'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.
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(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 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
agreement 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 at to which it is being 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 and performed in the State
of New
York.
25.
NO
LANDLORD - TENANT RELATIONSHIP.
Licensee hereby acknowledges that Licensees 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.
13
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. Xxxxx | ||
| Title: Xxxxx X. Xxxxx, VP for Administration | ||
| Neurologix, Inc. , Licensee | ||
| By: /s/ Xxxx Xxxxxxx | ||
| Title: Secretary and Treasurer |
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