License Agreement - Columbia University and Nephros Inc.
AUDOBON BIOMEDICAL SCIENCE AND TECHNOLOGY PARK
Columbia University Health Sciences Division
LICENSE AGREEMENT
AGREEMENT made as of July 1, 2002 between THE TRUSTEES OF COLUMBIA
UNIVERSITY IN THE CITY OF NEW YORK ("Licensor"), having an office c/o Executive
Director, Audubon Research Park, 3960 Broadway, New York, New York 10032 and
NEPHROS, INC. ("Licensee"), having an office at 3960 Broadway, New York, NY
10032.
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 Mary Woodard Lasker Building (the
"Building"), located at 3960 Broadway 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 __ 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 6/30/03 (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.
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(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 will 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
Licensor 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 waive 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, (unless such repairs are caused by the acts or omissions of
Licensor or are repairs to building systems (i.e. HVAC systems) not caused by
the acts or omissions of Licensee in which event such repairs shall be at
Licensor'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; provided, however, that this Section 6(a) shall be applicable
solely with respect to the Licensee's use of the Licensed Space and that the
cost and expense of compliance with this Section 6(a) due to factors not related
to the Licensee's use of the Licensed Space will be borne solely by the
Licensor.
(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 actions and
having jurisdiction or cognizance of all or any part of the Licensed Space or
the Building (collectively, "Insurance Requirement"); (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 accrual 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 waste, medical
wastes, hazardous or toxic substances, pollutants, gas, vapor, radiation,
chemical or related materials, asbestos or any materials 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;
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(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' 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 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 Level 2, as defined in the U.S. Department of Health and Human
Services, Public Health Services, 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 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
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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
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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 backup power furnished to the Licensed Space or if the
quantity of 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
judgement, 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 us for hot 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 judgement, deems adequate to provide gas services 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 with ten (10) days of Licensor's bill therefor. Licensee shall
make no alteration, addition or repair to the gas connection, installations,
equipments 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
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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 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 bill therefor.
(k) Licensee shall be responsible for the proper storage and removal
from the Licensed Space and the Building and the disposal of all 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 item 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 item. 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
attorney'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 or a corporation, partnership or other business entity,
whether through the ownership of voting securities, by contract, common
directors or officers, the contractual right to mange 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
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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 intentions 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 comes 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, unless due to Licensor's gross negligence or
willful misconduct. 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
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 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 section 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 Research Park, PH 1525
630 West 168th Street
New York, New York 10032
with a copy to: (i) Columbia University
Office of the General Counsel
412 Low Memorial Library
New York, New York 10027
Attention: Deputy General Counsel
and to: (ii) Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022
Attention: Donald H. Siskind, Esq.
To Licensee: _______________________________________
_______________________________________
_______________________________________
Attention:____________________________
with a copy to:_____________________________________
_______________________________________
_______________________________________
Attention:____________________________
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.
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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 bill
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 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 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 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.
21. SECURITY DEPOSIT. (a) Licensee has deposited the sum of $3,750 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 reletting 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 successor 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 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 not 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 lessor and
Licensor shall ipso facto be released by Licensee from all liability for the
return of the security deposited
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and Licensee shall look solely to the new licensor for the return of the
security deposited provided that the Licensor caused the security deposit to be
transferred to the account of the new Licensor. 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-twelfth 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 persons 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 acknowl-edges 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.
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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/ [Illegible signature]
---------------------------
NEPHROS, INC.
By: /s/ Norman J. Barta
---------------------------
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