Exhibit 10.1
AGREEMENT OF LEASE
LONG ISLAND HIGH TECHNOLOGY INCUBATOR, INC.
Applied DNA
November 2005 thru October 2006
AGREEMENT OF LEASE
This Lease dated this First day November 2005 is by and between LONG ISLAND HIGH
TECHNOLOGY INCUBATOR, INC., a nonprofit educational corporation existing under
the laws of the State of New York, having its principal place of business
located at 25 Health Sciences Drive, Stony Brook, New York, hereinafter referred
to as "Landlord," and Applied DNA, a New York Corporation having its principal
place of business located at Suites 112, 113 and 115, 00 Xxxxxx Xxxxxxxx Xxxxx,
Xxxxx Xxxxx, Xxx Xxxx (hereinafter referred to as "Tenant")
WHEREAS, by terms of a certain ground lease Agreement between the
State University of New York and LANDLORD, the State University of New York has
granted to LANDLORD the authority to construct a facility on certain land on the
campus of Stony Brook, hereinafter referred to as the "Incubator," and to lease
space in such facility for emerging high technology enterprises, such space,
specifically Suites # 112, 113 and 115,(2500 sq. feet) is the designated
premises under this Lease; and
WHEREAS, the Tenant has developed competence and expertise in
technical matters relating to DNA encryption (as hereinafter defined; and
WHEREAS, LANDLORD wishes to promote and xxxxxx economic development in
the Field, and
WHEREAS, LANDLORD wishes to make available to the faculty and students
at the State University of New York at Stony Brook ("USB") additional
opportunities for practical application and study in the Field; and
WHEREAS, the Tenant qualifies as a start-up company in the area of
biotechnology, as provided in the January 22, 1986 Resolution of the State
University of New York Board of Trustees and the Incubator Guidelines and
Procedures of the State University of New York at Stony Brook (see appendix A);
and
WHEREAS, Tenant has agreed to provide information on revenues and
employment for a period of 5 years following graduation from the program; and
WHEREAS, Tenant wishes to stimulate future companies in the Incubator
program and will make every effort to contribute to the Incubator corporation in
some fashion following graduation; and
NOW, THEREFORE, in consideration of ten ($10.00) dollars and good and valuable
consideration, Landlord and Tenant hereby agree as follows:
1. Grant
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, upon
and subject to the terms and conditions contained herein, the Premises (as
hereinafter defined)
2. Premises
The Premises are more particularly described in Exhibit "A" annexed hereto and
made a part hereof [the "Premises"]. Under State University Board of Trustees
resolution of January 22, 1986 and further referenced in paragraph (b) of the
Patents and Inventions Policy of State University of New York dated September
19, 1979, and amended November 16, 1988 such facilities are considered Tenant
facilities and not State University facilities for purposes of patent and
copyright ownership.
3. Term
a) The terms of this Lease shall be for one year commencing November 1,
2005 and ending October 31, 2006, provided however that in the event
that the Landlord determines in its sole discretion that the Incubator
project is abandoned or that an order is received from a government
agency to vacate the Premises, the ending date may be accelerated to
such date as determined to be reasonable by the Landlord.
4. Rent
a) The rent payable hereunder is $50,000 which sum shall be payable in
monthly installments of $4,166.00 on the first day of each month
during the term. Rent payable by Tenant under this Lease shall be paid
when due without prior demand therefore, without any deductions or
setoffs or counterclaims whatsoever. The energy surcharge will be
$520.83 per month.
b) Tenant shall pay before delinquency all taxes, assessments, license
fees and public charges levied, assessed or imposed upon its business
operation, as well as upon its leasehold interest, trade fixtures,
furnishings, equipment, leasehold improvements made by Tenant,
alterations, changes and additions made by Tenant, merchandise and
personal property of any kind owned, installed or used by Tenant in,
on or upon the Premises. Tenant shall be responsible for making any
necessary returns for and paying any other property taxes separately
levied or assessed against the improvements constructed by Tenant on
the Premises.
5. Indemnification and Hold Harmless
a) Tenant agrees to save Landlord harmless from, and indemnify Landlord
against, any and all injury, loss or damage and any and all claims for
injury, loss or damage, caused by, resulting from, or claimed to have
been caused by or to have resulted from (i) the use, occupancy, or
enjoyment of the Premises or (ii) any act, omission or negligence of
Tenant or anyone claiming under Tenant (including, without limitation,
employees, contractors, invitees, successors and assigns or Tenant).
i) Comprehensive general liability insurance in the amount of
$2,000,000 combined single limit. Such policy shall name the
Landlord, SUNY at Stony Brook, and the State of New York as an
additional insured and loss payee.
ii) Workers Compensation Insurance and New York State Disability
Insurance in amounts required under New York State laws.
b) All policies of insurance provided for in this Section shall be issued
in a form acceptable to Landlord by insurance companies qualified to
do business in the State of New York. Each such policy shall be issued
in the names of Landlord and Tenant and any other party listed above.
Said policies shall be for the mutual and joint benefit and protection
of Landlord and Tenant and any such other parties in interest, and
executed copies of each such policy of insurance or a certificate
thereof shall be delivered to each of Landlord within ten (10) days
after delivery of possession of the Premises to Tenant and renewals or
replacements thereof shall be so delivered at least thirty (30) days
prior to the expiration of each said policy. All such policies of
insurance shall contain a provision that the company writing said
policy will give to Landlord and other said parties in interest at
least ten (10) days prior written notice of any cancellation, lapse,
or reduction in the amounts of insurance. All such policies shall
contain a provision that Landlord and any such other parties in
interest, although named as an insured, shall nevertheless be entitled
to recover under said policies for any loss occasioned to it, its
servants, agents and employees by reason of the negligence of Tenant.
c) Tenant shall not do nor suffer to be done, nor keep nor suffer to be
kept, anything in, upon or about the Premises which could (i)
contravene Landlord's policies insuring against loss or damage by fire
or other hazards, (ii) prevent Landlord from procuring such policies
from companies acceptable to Landlord (iii) cause an increase in the
insurance rates upon any portion of the Premises. If Tenant violates
any prohibition provided for in the first sentence of this Section,
Landlord may without notice to Tenant, correct the same at Tenant's
expense. Tenants shall pay to Landlord as additional rent forthwith
upon demand the amount of any increase in premiums for insurance
resulting from any violation of the first sentence of this Section,
even if Landlord shall have consented to the doing of, or keeping of,
anything on the Premises which constituted such a violation (but the
payment of such additional rent shall not entitle Tenant to violate
the provisions of the first sentence of this paragraph.)
6. Security
a) Tenant shall have deposit with Landlord a security deposit equal to
two (2) months rent.
b) If Tenant pays the rent and performs all of its other obligations
under this Lease, Landlord will return the unused portion of this
security deposit with thirty (30) days after the end of the term.
7. Services
Landlord shall provide the following services to Tenant all ordinary and
necessary water, gas, and electrical services, heat and sewage services for
Tenant. ROLM telephone services will be provided in accordance with USB policy
at the expense of the Tenant. Tenant may avail itself of other campus services
at the established third-party rates.
Tenant understands and agrees that services offered by USB to Tenant shall be
equivalent to those provided to campus academic and administrative offices,
unless otherwise agreed in writing by both parties. All activities of the Tenant
involving facilities and services of USB will be consistent with applicable
policies and guidelines of USB.
8. Use of Premises
a) Tenant may only use the Premises for an office or laboratory in
accordance with the terms hereof and the rules and regulations now or
hereafter adopted by Landlord for the Incubator.
b) Tenant agrees to keep the Premises in good order and condition during
the term of this agreement.
c) Tenant shall use the Premises only in connection with the Tenant's
business, as such business was described and presented to Xxxxxx X.
XxXxxx or the Tenant Selection and Review Committee and for no other
business without Landlord's prior, written consent.
d) Tenant specifically agrees not to hold itself out as representing the
State of New York, The State University of New York, or USB in
connection with the use of State-owned property to which this Lease
relates, nor shall the name of the State of New York, the State
University of New York, or USB be used by Tenant for any purpose
without prior, specific written approval of the party whose name is to
be used.
e) Tenant shall meet with Landlord at least annually, at a time
determined by Landlord, for the purpose of reviewing the Tenant's
business plan or part thereof and compare the proposed plan of action
against reality. Should the Tenant fail to develop a business plan the
lease will not be renewed.
f) Tenant will contract through the Research Foundation of the State
University of New York for any business and research-related tasks to
be performed by faculty or staff of USB utilizing University
facilities. Faculty and staff are permitted to consult with Tenant in
accordance with the policies and guidelines of Foundation and USB as
stated in State University of New York at Stony Brook Faculty and
Professional Employee Handbook, page 44. Outside Consulting Work (see
Appendix A).
g) Tenant may submit proposals for collaborative efforts and joint
ventures to USB for mutual benefit. Accepted proposals will be
administered by separate contracts which shall in no way diminish or
change any provision of this Lease. The failure of Tenant to fulfill
its obligations herewith or the breach of any of the terms hereof or
any misrepresentation made by Tenant in connection with this Lease
shall constitute a default hereunder and Landlord shall have the
right, at its option, to terminate this Lease, in addition to any and
all other remedies and rights available to it in equality and at law.
9. Right of Entry
a) Landlord or Landlord's agents shall have the right (but shall not be
obligated) to enter the Premises in any emergency at any time, and, at
other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Landlord may deem necessary and
reasonably desirable to the Premises or to any other portion of the
Building or which Landlord may elect to perform. Throughout the term
hereof Landlord shall have the right to enter the Premises at
reasonable hours for the purpose of showing the same to visitors,
prospective purchasers or mortgagees of the Building, and during the
last six months of the term for the purpose of showing the same to
prospective tenants. If Tenant is not present to open and permit an
entry into the Premises, Landlord or Landlord's agents may enter the
same whenever such entry may be necessary or permissible by master key
or forcibly and provided reasonablecare is exercised to safeguard
Tenant's property, such entry shall not render Landlord or; its agents
liable therefore nor in any event shall the obligations of Tenant
hereunder be affected.
b) Tenant agrees that Landlord may conduct construction work in the
immediate area surrounding the demised Premises. Landlord agrees that
it will exercise good faith efforts to conduct such construction work
so as not to unreasonably interfere with Tenant.
10. No Assignment or Sublease
Due to the fact that the LIHTI Incubator is intended to benefit specific types
of companies in the developmental stages, and because Tenant has been
specifically approved for participation in the LIHTI Incubator project, Tenant
agrees that it cannot assign this agreement or sublease the Premises nor any
portion thereof without Landlord's consent, which may be granted or withheld in
Landlord's sole discretion.
11. Alterations
Tenant may make no changes in or to the Premises of any nature without
Landlord's prior written consent. All fixtures and all paneling, partitions,
railings and like installations, installed in the Premises at any time, either
by Tenant or by Landlord on Tenant's behalf, shall, upon installation, become
the property of Landlord and shall remain upon and be surrendered with the
Premises unless Landlord, by notice to Tenant no later than twenty days prior to
the date fixed as the termination of this Lease, elects to relinquish Landlord's
right thereto and to have them removed by Tenant, in which event the same shall
be removed from the Premises by Tenant prior to the expiration of this Lease at
Tenant's expense. Upon removal of such installations as may be required by
Landlord, Tenant shall immediately and at its expense, repair and restore the
Premises to the condition existing prior to installation and repair any damage
to the Premises or the Building due to such removal. All property permitted or
required to be removed by Tenant at the end of the term remaining in the
Premises after Tenant's removal shall be deemed abandoned and may, at the
election of Landlord, either be retained as Landlord's property or may be
removed from the Premises by Landlord, at Tenant's expense.
12. Rules and Regulations
Tenant agrees to adhere to and abide by any rules and regulations that may be
adopted or modified by the Landlord.
1. Tenant shall not install any signage; awnings or structure of
any kind whatsoever in the interior or exterior of the Building
without Landlord's written consent.
2. Tenant shall not connect any apparatus, equipment or device to
the water, plumbing, HVAC lines without first obtaining the
written consent of the Landlord.
3. Tenant shall not operate any electric powered machines or
equipment, except normal office equipments such as copiers,
calculators, personal computers, or dictating equipment, without
first obtaining the written consent of the Landlord.
4. Tenant shall not operate or permit to be operated any musical
or sound-producing device, which may be heard outside of Tenant's
Premises.
5. Tenant shall not bring or permit to be brought into
thebuilding any animals or birds whether alive or dead. USB has
an authorized animal control facility for such use.
6. No toxic or hazardous substances shall be used stored or
brought into the Building by Tenant.
7. Tenant shall first obtain the written approval of Landlord
before hiring any contractors or installation technicians
rendering any Building services including, but not limited to,
installation of electrical devices and installation of any and
every nature affecting floors, ceilings, equipment or other
physical portions or services of the Building. No outside
telecommunications service or provider will be used.
8. Tenant assumes all risk of damage to any and all articles
moved or installed, as well as all injury to any person or
property in such movement, and hereby agrees to indemnify
Landlord against any loss resulting therefrom.
9. Landlord shall not be responsible for any loss or stolen
property, equipment, money, jewelry from the leased Premises or
the public areas of the Building or grounds.
10. Landlord shall have the right to determine the maximum weight
and proper position of any heavy equipment, including safes,
large files, etc. that are to be placed in the Building, and only
those which, in the opinion of the Landlord, will not do damage
to the floors, structures or elevators may be moved into the
Building.
11. Tenant shall not allow any violation of fire or safety
regulations. Tenant agrees at its own expense to comply with, and
to indemnify and hold Landlord harmless with respect to any
violation of, all recommendations and requirements with respect
to the Premises, or its use or occupancy, of the insurance
underwriters or any similar public or private body, and any
governmental authority, having jurisdiction over insurance rates
with respect to the use or occupancy of the Building.
12. Appliances including but not limited to refrigerators,
freezers, cooking equipment (microwaves) are not permitted
without first obtaining the written consent of the Landlord.
13. Mechanics' Liens
Tenant will not permit to be created or to remain undischarged any lien,
encumbrance or charge arising out of any work done or materials or supplies
furnished by any contractor, mechanic, laborer or materialman by or for Tenant
or any mortgage, conditional sale, security agreement or chattel mortgage. If
any such lien shall be filed against the Building or any part thereof, Tenant
will cause the same to be discharged of record by payment, deposit, bond, order
of a court of competent jurisdiction or otherwise within thirty (30) days after
the filing thereof. If Tenant shall fail to cause such lien or notice of lien to
be discharged within the period aforesaid, then, in addition to any other right
or remedy Landlord may, but shall not be obligated to, discharge the same either
by paying the amounts claimed to be due or by procuring the discharge of such
lien by deposit or by bonding proceedings and in any such event Landlord shall
be entitled, if Landlord so elects, to compel the prosecution of an action for
the foreclosure of such lien by the lienor and to pay the amount of judgment in
favor of the lienor with the interest, costs and allowances. Any amount so paid
by Landlord and all costs and expenses, including attorney's fees, incurred by
Landlord in connection therewith, shall constitute Additional Rent payable by
Tenant under this Lease and. Shall be paid by Tenant to Landlord on demand.
14. Termination
a) This Lease shall be terminated by:
i) expiration of this agreement or
ii) revocation by the Landlord.
b) In the event this agreement is terminated and the Tenant fails to
vacate the Premises, the Tenant agrees to pay holdover rental in the
amount of $24 per square foot of the Premises and allocated Common
Area Space.
15. Notice
a) Any Notice hereunder must be in a signed writing and served by
certified mail, return receipt requested as follows:
i) Landlord: Long Island High Technology Incubator, Inc,
Box 100, 25 Health Sciences Drive
Stony Brook, New York 11790-3350
Attn.: Manager
ii) Tenant: Applied DNA
Box 113, 00 Xxxxxx Xxxxxxxx Xxxxx,
Xxxxx Xxxxx, XX 00000-0000
16. No Encumbrances
Tenant agrees that it cannot mortgage nor encumber the Premises nor any portion
thereof.
17. Default
a) Failure of Tenant to pay rent by the 5th day of any month or to
otherwise adhere to the terms and conditions herein shall be deemed an
event of default.
b) Landlord's Remedies. If any Event of Default occurs, then and in each
such case, Landlord may treat the occurrence of such Event of Default
as a breach of this Lease, and in addition to any and all other rights
or remedies of Landlord in this Lease or by law or in equity provided,
Landlord shall have, in its option, without further notice of demand
of any kind to Tenant or any other person:
(i) the right to terminate this Lease;
(ii) the right to bring suit for the collection of Rent, as
it accrues pursuant to the terms of this Lease, and
damages (including without limitation
18. No Modification
This Agreement may not be changed, amended or modified except in a writing duly
executed by all parties herein.
19. No Waiver
Failure of the Landlord to exercise a right or remedy to which it is entitled to
exercise pursuant to this agreement shall not be deemed a waiver of its right to
later exercise the right or remedy.
20. Estoppel Certificates
Within ten (10) days after Tenant takes possession of the Premises, and from
time to time thereafter within ten (10) days after request in writing there for
from Landlord, Tenant agrees to execute and deliver to Landlord, or to such
other addressee or addressees as Landlord may designate (and any such addressee
may rely thereon), a statement in writing in a form and substance prepared by
Landlord, certifying (i) that this Lease is unamended and in full force and
effect (or identifying any amendments, (ii) whether either party hereto is in
default hereof (and specifying any such default), (iii) the date(s) to which
Rent has been paid, and (iv) such other matters as Landlord shall reasonably
request. In the event that Tenant fails to provide such statement within ten
(10) days after Tenant takes possession of the Premises and from time to time
thereafter within ten (10) days after Landlord's written request therefore,
Tenant does hereby irrevocably appoint Landlord as attorney-in-fact of Tenant,
coupled with an interest, in Tenant's name, place and stead so to do in each and
every case.
21. Subordination
Tenant agrees that this Lease and the Tenant's interest herein shall be
subordinate to any mortgage, deed of trust, ground or underlying lease, or any
method of financing or refinancing now or hereafter placed against the Premises
and/or any or all of the Building of which the Premises is a part and/or the
land upon which the Building is located; and to all renewals, increases,
modifications, replacements, consolidations and extensions thereof. Upon request
of Landlord, Tenant agrees to execute and deliver any and all documents as
Landlord shall request to evidence such subordination as aforesaid.
22. Destruction
In the event of the destruction of the Building to such a degree that Landlord
shall elect to demolish or substantially renovate or rehabilitate the Building,
Landlord shall have the right to terminate this Lease upon notice to Tenant.
23. Building Alterations and Management
Landlord shall have the right at anytime without the same constituting an
eviction and without incurring liability to Tenant therefore to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the Building and
to change the name, number or designation by which the Building may be known.
There shall be no allowance to Tenant for dimmution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from Landlord or other Tenants making any repairs in
the Building or any such alterations, additions and improvements.
Long Island High Technology Applied DNA Sciences, Inc.
Incubator, Inc.
(Landlord)
Xxxxxx X. XxXxxx Xxxxx X. Xxxxxxx, Ph.D.
President Chief Executive Officer
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXX
------------------------ -----------------------
XXXXXX X. XXXXXX XXXXX X. XXXXXXX
Dated: October 24, 2005 Dated: October 24, 2005
