License Agreement - Columbia University and Nephros Inc.
LICENSE AGREEMENT
AGREEMENT made as of July 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, 3960 Broadway, New
York, New York 10032 and Nephros, Inc. ("Licensee"), having an office at
3960 Broadway, New York, NY 10032.
WITNESSETH:
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 3&4th
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 6/30/05
(the "Expiration Date").
3. CONDITION OF PREMISES. Licensee acknowledges that it has
inspected the Licensed Space and agrees to take the Licensed Space "as is"
without any work being done therein by Licensor, and without any obligation upon
Licensor to make any contribution toward or to assume the performance of any
work in order to prepare the Licensed Space for use by Licensee. Licensee
acknowledges that all materials, fixtures and equipment, if any, which Licensor
may elect to make available for Licensee's use are, and shall be and remain, the
property of Licensor. Licensee acknowledges that Licensor has not made and does
not make any representations or warranties to Licensee, whether directly or
indirectly, with respect to the Licensed Space or the use or proposed use
thereof by Licensee.
4. USE. Licensee shall use the Licensed Space solely as laboratory
and office space. Prior to taking occupancy of the Licensed Space, Licensee
shall submit to Licensor for approval, Licensee's Regulatory Compliance Plan
(the "Plan") which Plan shall (a) identify those activities of and materials to
be used by Licensee which are or may be subject to Environmental Legal
Requirements (as hereinafter defined) or other Legal Requirements (as
hereinafter defined) and (b) detail Licensee's plans and procedures for
compliance with Environmental Legal Requirements, Legal Requirements and
Insurance Requirements (as hereinafter defined) as to each specific regulated
material and activity. From time to time, at any time during the Term, Licensee
shall revise the Plan to reflect any changes in its activities, materials,
Environmental Legal Requirements, Legal Requirements or Insurance Requirements.
The Plan and all such revisions shall be subject to Licensor's prior review and
approval.
5. FEE. (a) Licensee agrees to pay to Licensor as and for the use
of the Licensed Space during the Term an annual amount (the "License Fee") as
set forth on Exhibit "B" annexed hereto and made a part hereof. The License Fee
shall be paid in monthly installments as set forth on Exhibit B, in advance, on
the first day of each and every month during the Term, without offset or
deduction except that the first monthly installment shall be paid upon execution
hereof. If the Commencement Date shall occur on a day other than the first day
of a calendar month or if the Expiration Date shall occur on a day other than
the last day of a calendar month, the License Fee for such calendar month shall
be appropriately prorated.
(b) All other sums of money as shall become due and payable
by Licensee to Licensor hereunder (collectively, "License Consideration") shall
be paid to Licensor within ten (10) days after receipt by Licensee of bills or
notice from Licensor to Licensee identifying the same. If Licensee shall fail to
pay any License Consideration within such ten (10) day period, or shall fail to
pay any installment of the License Fee within ten (10) days after it is due,
such unpaid amounts shall bear interest at the rate per annum equal to the
lesser of (i) two percent (2%) plus the base rate charged by Citibank, N.A. and
in effect during the period such amounts are due and unpaid and (ii) the maximum
rate permitted by law, from the due date of such payment to the date paid to
Licensor.
(c) If Licensee shall default in 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 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 (Rider 6(a), 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; (Rider 6(b)
(b) at Licensee's sole cost and expense, to comply promptly
with (1) all presently existing or hereafter enacted laws, orders, ordinances,
rules, regulations and requirements of, and to keep in full force and effect all
permits and licenses required pursuant to, all federal, state, municipal and
local governments and their departments, agencies, commissions, boards and
officers or any other body exercising similar jurisdiction and any other
governmental agency having jurisdiction over the Licensed Space (collectively,
"Legal Requirements"); (2) all orders, rules, regulations, requirements and
recommendations of the New York Board of Fire Underwriters or the Insurance
Service Office or any other body exercising the same or similar functions and
having jurisdiction or cognizance of all or any part of the Licensed Space or
the Building (collectively, "Insurance Requirements"); (3) any and all policies
and procedures of Licensor (including, without limitation, Licensor's Joint
Radiation Safety Committee and Licensor's Office of Environmental Health and
Safety) governing the use, handling or disposal of Hazardous Materials (as
hereinafter defined) by its tenants, licensees, contractors, employees or
researchers, now or hereafter in effect, and (4) any applicable federal, state
or local statute, code, ordinance, rule or regulation, any judicial or
administrative order or judgment applicable to Licensee or the Licensed Space
and any provision or condition of any permit, license, franchise, concession,
agreement or other authorization binding on Licensee relating to (i) the
protection of the environment, the safety and health of persons (including
employees) or the public welfare, (ii) the actual or potential release,
discharge, disposal or emission (whether past or present) of any Hazardous
Materials or (iii) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, generation or handling of any Hazardous Materials
(collectively, "Environmental Legal Requirements"). The term "Hazardous
Materials" shall mean any flammable, explosive, radioactive, chemical or
infectious materials, hazardous (or biohazardous) materials or wastes, medical
wastes, hazardous or toxic substances, pollutants, gas, vapor, radiation,
chemical or related materials, asbestos or any material containing asbestos, or
any other substance or materials as defined in or regulated by any local, state
or federal law or ordinance or regulation promulgated pursuant thereto;
(c) not to use, except to identify Licensee's address (i)
as part of its mailing address on letterhead and other similar materials or (ii)
for purposes of Licensee's publications, the name of Licensor or Columbia
University or any of its officers, trustees, agents, employees, students or
faculty members for any purpose whatsoever without receiving the prior written
approval of Licensor. Without limiting
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the generality of the foregoing, Licensee shall not conduct its operations at
the Licensed Space under any name which includes the word "Columbia", or
otherwise hold itself or its business out as having any affiliation with
Licensor or Columbia University or Columbia-Presbyterian Medical Center;
(d) to comply strictly with the Plan (as defined in
Paragraph 4 hereof);
(e) not to use or permit the use of biohazardous agents
requiring a degree of containment in excess of that described as National
Institutes of Health Biosafety Level 2, as defined in the U.S. Department of
Health and Human Services, Public Health Service, Centers for Disease Control
and Prevention and National Institutes of Health, Biosafety in Microbiological
and Biomedical Laboratories, dated May, 1993 and any updates or revisions
thereto (the "DHH Specifications");
(f) to conduct all scientific research and development
activities in conformity with at least the minimum practices, equipment and
facilities recommended for such activities in the DHH Specifications; and
(g) not to use or permit the use of any human subjects or
live and whole dead animals (including, without limitation, live and whole dead
mice and rats) on or at the Licensed Space for any research purposes. In the
event that Licensee at any time during the Term shall desire to (a) use or
permit the use of human subjects or live or whole dead animals for research at
the Building or (b) use or permit the use of any of the facilities of Licensor
to house any live or whole dead animals, Licensee shall forward a request with
appropriate back-up documentation, including, without limitation, a detailed
description of Licensee's proposed research, to Licensor at the address set
forth in Paragraph 17 hereof. Upon receipt of such notice and back-up
documentation, Licensor shall review such request, provided, however, that
Licensor shall, in its sole and absolute discretion, have no obligation to
consent to Licensee's request.
7. INSURANCE. Licensee shall, at Licensee's sole cost and expense,
obtain and maintain the following types of insurance in not less than the
indicated amounts with insurance carriers reasonably acceptable to Licensor and
otherwise in compliance with Exhibit "C" annexed hereto and made a part hereof:
(a) Workers' Compensation and Employer's Liability
insurance with respect to all persons employed by Licensee at the Licensed Space
with a limit of liability in accordance with applicable law in the case of
Workers' Compensation and with a limit of liability of not less than the
following in the case of Employer's Liability:
Bodily Injury by Accident - $100,000 each accident;
Bodily Injury by Disease - $500,000 policy limit;
Bodily Injury by Disease - $100,000 each employee;
(b) Comprehensive General Liability (bodily injury and
property damage) with a combined single limit of liability for bodily injury and
property damage of $2,000,000 per occurrence. Licensor shall be named as an
additional insured under this policy;
(c) "All Risk" property insurance (including breakage of
glass and water damage) to all property of Licensee, including all alterations,
within the Licensed Space in an amount equal to the replacement cost of such
property; and
(d) Such different or the same types of insurance set forth
above in such amounts as may from time to time be reasonably required by
Licensor against such other insurable hazards as at the time are commonly
insured against in the case of premises similarly situated.
8. DAMAGE AND DESTRUCTION. (a) If the Licensed Space or any part
thereof shall be damaged by fire or other casualty, Licensee shall give
immediate notice thereof to Licensor and this Agreement shall continue in full
force and effect, unless Licensor shall elect to terminate this Agreement as set
forth below. In the event that this Agreement shall not be so terminated,
Licensor shall restore the Licensed Space at Licensor's expense and the Licensee
Fee and License Consideration shall be proportionately abated during the period
in which Licensor is restoring the Licensed Space if all or any portion of the
Licensed Space is unusable by Licensee for the purposes set forth in Paragraph 4
above during such period. Licensee's liability for the full amount of the
Licensee Fee and License Consideration shall resume five (5) days after written
notice from Licensor that the Licensed Space is substantially ready for
Licensee's occupancy.
(b) In the event that the Licensed Space is rendered wholly
or substantially unusable (whether or not the Licensed Space has been damaged in
whole or in part) by fire or other casualty (of which fact Licensor shall be the
sole judge), Licensor may elect to terminate this Agreement by written notice to
Licensee given within sixty (60) days after such fire or casualty, specifying
the date for the expiration of this Agreement, which shall be no more than
thirty (30) days after the giving of such notice.
(c) If Licensor shall fail within thirty (30) days after
notice by Licensee to Licensor of such casualty to restore the damaged portion
of the Licensed Space to substantially the condition existing prior to such
casualty, Licensee may elect to terminate this Agreement by written notice to
Licensor given prior to completion of such restoration, specifying the date for
the expiration of this Agreement, which shall be no more than thirty (30) days
after the giving of such notice.
(d) Nothing contained herein shall relieve Licensee from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law,
Licensor and Licensee each hereby releases and waives all rights of recovery
against the other or anyone claiming through or under the other, by way of
subrogation or otherwise. The foregoing release and waiver shall be in force
only if both parties' insurance policies contain a clause providing that such a
release or waiver shall not invalidate the insurance and also provided that such
clause can be obtained without additional premium; it being agreed, however,
that the party whose insurance carrier requires such additional premium shall
notify the other party thereof and such other party shall have the right to pay
such additional premium.
(e) Licensee acknowledges that Licensor will not carry
insurance on the improvements, furniture, furnishings, fixtures and equipment
and other personal property required to be insured by Licensee pursuant to
Paragraph 7(a) above and Licensor will not be obligated to repair any damage
thereto or replace the same.
(f) Licensee hereby waives the provisions of Section 227 of
the Real Property Law and agrees that the provisions of this Paragraph 8 shall
govern and control in lieu thereof.
9. ALTERATIONS. Licensee shall not make any improvements,
additions, alterations or other changes, except for cosmetic and decorative
alterations, to the Licensed Space, without the prior written consent of
Licensor in each instance.
10. UTILITIES AND SERVICES. (a) Licensee shall have 24-hour,
7-day-a-week access to the Building and passenger elevator service to the
Licensed Space. Freight elevator service shall be available on business days
from 8 a.m. to 4 p.m. If Licensee shall require freight elevator service during
any other time, Licensor shall furnish same provided that Licensee gives
Licensor advance notice and that Licensee pays, on demand, as License
Consideration, Licensor's then established charges therefor.
(b) Licensor shall provide electric energy to the Licensed
Space. Licensee shall pay Licensor for electricity consumed by Licensee in the
Licensed Space. Licensor will permit the electrical risers, feeders and wiring
in the Building serving the Licensed Space to be used by Licensee for such
purpose to the extent that they are available, suitable, safe and within the
plan and design capacities of the Building. Licensee shall not be required to
pay Licensor more than the amount calculated by applying to the measured demand
and/or usage of electrical current in or furnished to the Building, the average
rate per unit of measurement, inclusive of applicable taxes, surcharges, time of
day and other charges, payable by Licensor for electrical current furnished to
the Licensed Space by the utility company serving the Building. Should any tax
or charge in the nature of a tax be imposed upon Licensor's receipts from the
sale or resale of electrical current to the Licensed Space, then the pro rata
share thereof allocable to the electrical current furnished to the Licensed
Space shall be passed on to and paid by Licensee. Bills for Licensee's usage of
electrical current shall be paid within ten (10) days by Licensee as License
Consideration. If due to any change in Legal Requirements Licensor shall not be
permitted to provide electric energy to the Licensed Space, then this Agreement
shall not be affected and Licensee shall arrange to obtain electric energy
directly from the public utility company furnishing electrical service to the
Building. In such event Licensee shall no longer pay Licensor for electricity
consumed.
(c) Licensee's use of electrical energy shall never exceed
the capacity of the then existing risers or wiring installation, in each case.
In order to insure that such electrical capacity is not exceeded and to avert
possible adverse effect upon the Building's electrical system, Licensee shall
not, without the prior written consent of Licensor, make or perform or permit
any alteration to wiring installations or other electrical facilities in or
serving the Licensed Space or any additions to the electrical fixtures, machines
or equipment or appliances in the Licensed Space. Licensor shall not be
obligated to consent to any such alteration or installation if, in Licensor's
judgment, the same are unnecessary or will cause permanent damage or injury to
the Building, the Building equipment
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or the Licensed Space or will cause or create a hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants. Only rigid conduit or such other wiring or
conduit as shall not violate Legal Requirements will be allowed.
(d) Licensor shall have no liability to Licensee for any
loss, damage or expense which Licensee may sustain or incur by reason of any
change, failure, inadequacy or defect in the supply or character of the
electrical energy or emergency generator back-up power furnished to the Licensed
Space or if the quantity or character of the electrical energy is no longer
available or suitable for Licensee's requirements, except for any actual damage
suffered by Licensee by reason of any such failure, inadequacy or defect caused
by Licensor's gross negligence, and then only after actual notice thereof.
(e) Licensor shall make available from the public water
supply to a point or points at or near the Licensed Space selected by Licensor
such quantities of domestic cold and hot water as Licensor, in its sole and
absolute judgment, deems adequate for normal laboratory and ordinary lavatory,
cleaning and drinking purposes. In the event that the Licensee requires hot or
cold water for any purposes other than those specified in the preceding
sentence, including, but not limited to high volume laboratory usage, Licensee
shall pay Licensor, as License Consideration, for water consumed, as shown on
separate submeters for cold and hot water maintained by Licensee, together with
all sewer charges and any other rent, tax, levy or charge based thereon which
now or hereafter is assessed, imposed or a lien upon the Licensed Space or the
Building, as and when bills are rendered. Payment for cold water shall be at the
rate charged by the City for cold water. Payment for hot water shall be at three
(3) times such rate. Licensor shall have no liability to Licensee for any loss,
damage or expense which Licensee may sustain or incur if the quantity or
character of water service changes or is no longer available or suitable for
Licensee's purposes.
(f) Licensee shall notify Licensor, within ten (10) days
after the Commencement Date, of the water meter number of each water meter
serving the Licensed Space and whether such meter is for hot water or cold
water. If any such meter is installed subsequent to the taking of possession by
Licensee, then Licensee shall notify Licensor of such information within ten
(10) days after such installation.
(g) Licensor shall make available to a point or points at
or near the Licensed Space such piping, systems, equipment and facilities as
Licensor, in its sole and absolute judgment, deems adequate to provide gas
service for normal laboratory consumption. Licensee shall pay Licensor, as
License Consideration, for any and all gas consumed. Meters may be installed and
maintained by Licensor, at Licensee's sole cost and expense. The rates charged
by Licensor to Licensee for gas consumption shall not exceed the rates charged
by the utility company providing such service. Payment for gas consumed by
Licensee in the Licensed Space shall be made by Licensee as License
Consideration within ten (10) days of Licensor's bill therefor. Licensee shall
make no alteration, addition or repair to the gas connection, installations,
equipment and/or facilities without the prior written consent of Licensor in
each instance. Licensor shall have no liability to Licensee for any loss, damage
or expense which Licensee may sustain or incur if the quantity or character of
the gas service is changed or is no longer available or suitable for Licensee's
requirements.
(h) Licensor shall, without additional charge to Licensee,
supply hot water for heat, and chilled water for air conditioning and
ventilation to the Licensed Space through existing Building risers, radiators
and air handlers during appropriate seasons as may reasonably be required by
Licensee for ambient heating and cooling seven days a week, 24 hours a day.
(i) Licensor shall provide cleaning services in accordance
with the specifications annexed hereto as Exhibit D and made a part hereof.
(j) Licensor shall supply compressed air and vacuum air to
a point or points near the Licensed Space in quantities which Licensor deems
adequate for normal laboratory purposes. If Licensee shall require additional
compressed air and vacuum air in excess of that which Licensor deems adequate
for the purposes set forth herein, Licensor shall furnish same at Licensor's
then established rates and same shall be payable by Licensee, as License
Consideration, within ten (10) days of Licensor's 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 of
Licensee's Hazardous Materials. Licensee shall contract for the disposal of
Hazardous Materials, at Licensee's cost and expense, with vendors approved by
Licensor, in its sole and absolute discretion. In contracting with any such
vendor, Licensor shall endeavor to ensure that Licensee shall receive the
benefit of any volume discount granted to Licensor by such vendor.
11. NO LIENS. (a) Licensee shall have no power to do any act or to
make any contract which may create or give rise to any lien, mortgage or other
encumbrance on the estate of Licensor or any interest of Licensor or Licensee in
the Licensed Space or the Building.
(b) If any lien shall at any time be filed against the
Licensed Space or the Building by reason of any work, labor, services or
materials done for, or supplied to, or claimed to have been done for, or
supplied to, Licensee or anyone holding the Licensed Space through or under
Licensee, Licensee shall cause the same to be discharged of record or adequately
bonded (unless otherwise secured to the satisfaction of Licensor) within twenty
(20) business days after the date Licensee has received notice of the filing of
such lien. If Licensee shall fail to do so, then, Licensor may, but shall not be
obligated to, procure the discharge of the same either by paying the amount
claimed to be due, by deposit in a court of competent jurisdiction or by
bonding, and Licensor may compel the prosecution of an action for the
foreclosure of such lien by the lienor and pay the amount of the judgment, if
any, in favor of the lienor with interest, costs and allowances. Any amount paid
or deposited by Licensor for any such purpose, and all other expenses of
Licensor, including reasonable 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 of a corporation, partnership or other
business entity, whether through the ownership of voting securities, by
contract, common directors or officers, the contractual right to manage the
business affairs of any such corporation, partnership or business entity, or
otherwise.
14. BROKERAGE. Licensee represents to Licensor that there is no
broker, finder, consultant or similar person acting on behalf of Licensee
entitled to a commission, fee or other compensation in connection with the
consummation of this Agreement and no conversations or prior negotiations were
had by Licensee or anyone acting on behalf of Licensee with any broker, finder,
consultant or similar person concerning the use of the Licensed Space except for
such broker(s), if any, set forth in Exhibit "E" annexed hereto and made a part
hereof. Licensee hereby agrees to pay the commission of any such broker, finder,
consultant or similar person. Licensee shall indemnify and hold Licensor
harmless from and against all liability arising from any claims for brokerage
commissions, finder's fees or other compensation resulting from or arising out
of any alleged conversations, negotiations or actions had by Licensee or anyone
acting on behalf of Licensee with any broker, finder, consultant or similar
person. The provisions of this Paragraph 14 shall survive the termination of
this Agreement.
15. ACCESS TO THE PREMISES. Licensor and Licensor's agents and
employees shall have the right to enter the Licensed Space for any reasonable
purpose, including, without limitation, for purposes of inspection and repair
and monitoring Licensee's activities for compliance with the Environmental Legal
Requirements, Legal Requirements, Insurance Requirements and the Plan. Except in
cases of emergency or where required for effective inspection and monitoring for
health and safety purposes, Licensor shall provide Licensee with one (1) day
prior notice of its intention to enter the Licensed Space, which notice may be
given orally or by telephone provided that it shall be followed by written
notice received by Licensee on the same day as such oral or telephone notice.
Licensee shall acknowledge such notice "received" by signing a copy thereof and
returning it to Licensor within twenty-four (24) hours of Licensee's receipt,
and Licensor may enter the Licensed Space upon receipt of such copy acknowledged
by Licensee or upon expiration of such 24-hour period, whichever occurs first.
16. INDEMNIFICATION. Licensee agrees that Licensee shall make no
claim against Licensor for any injury or damage to Licensee or to any other
person(s) or for any damage to, or loss (by theft or otherwise) of, any property
of Licensee or of any other person. (Rider 16a) 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 (Rider 16(b), and to indemnify and save Licensor
harmless from and against any and all claims arising from any condition of the
Licensed
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Space due to or arising from any act or omission or negligence of Licensee or
any of its agents, contractors, servants, employees, licensees or invitees, and
from and against all liabilities, costs and expenses (including, without
limitation, attorneys' fees and disbursements) incurred in or in connection with
any such claim or claims or action or proceeding brought thereon; and in case
any action or proceeding shall be brought against Licensor by reason of any such
claim, Licensee upon notice from Licensor agrees to resist or defend such action
or proceeding and to employ counsel therefor reasonably satisfactory to
Licensor. The provisions of this Paragraph 16 shall survive the termination of
this Agreement.
17. NOTICES. All notices, demands or requests made pursuant to,
under or by virtue of this Agreement must be in writing (whether or not so
stated) and sent either by personal delivery or by nationally recognized
overnight courier service or by certified or registered mail, return receipt
requested, postage prepaid as follows:
To Licensor: Executive Director
Audubon 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: Nephros, Inc.
3960 Broadway, 4th Floor
New York, NY 10032
Attention: Norman Barta
with a
copy to: ------------------------------
------------------------------
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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.
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 that a
default set forth in subparagraph (i) of this Paragraph 20 which for causes
beyond Licensee's control cannot with due diligence be cured within such 30-day
period, if Licensee (1) shall not, promptly upon receipt of such notice advise
Licensor of Licensee's intention to institute all steps necessary to cure such
default or (2) shall not institute and thereafter with reasonable diligence
prosecute to completion all steps necessary to cure the same.
(b) Provided that Licensee shall surrender and deliver
possession of the Licensed Space to Licensor, and shall not be in default beyond
applicable notice and grace period in performing any 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 $
17,021.74 with Licensor as security for the full and punctual performance by
Licensee of all of the terms of this Agreement, to be deposited by Licensor in
an interest-bearing account of Licensor's choosing. In the event Licensee
defaults in the performance of any of the terms of this Agreement, Licensor may
use or retain the whole or any part of the security deposited to the extent
required for the payment of any fees or for any sum that Licensor may expend or
may be required to expend by reason of Licensee's default, including any damages
or deficiency in the relicensing or letting of the Licensed Space, whether
accruing before or after summary proceedings or other re-entry by Licensor. In
the case of every such use or retention, Licensee shall, on demand, pay to
Licensor the sum so used or retained which sum shall be added to the security
deposited so that the same shall be replenished to its former amount. In the
event any bankruptcy, insolvency, reorganization or other creditor-debtor
proceedings shall be instituted by or against Licensee, or its successors or
assigns, the security deposited shall be deemed to be applied first to the
payment of such fees due Licensor for all periods prior to the institution of
such proceedings and the balance, if any, of the security deposited may be
retained by Licensor in partial liquidation of 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.
(f) In the event that the License Fee shall increase
pursuant to the terms of this Agreement, the amount of security deposited shall
be increased so that at all times the security deposited (exclusive of interest)
shall equal one-sixth of the current annual License Fee. Licensee shall
immediately deposit with Licensor the difference between the amount being held
by Licensor as security (exclusive of interest) and the amount required to be
deposited pursuant to this Subparagraph 21(f).
22. CAPTIONS. The captions of the Paragraphs of this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope of this Agreement nor the intent of any provision
thereof.
23. RELOCATION. At any time and from time to time during the Term,
Licensor shall have the right to relocate Licensee to space in the Building
reasonably comparable in size, location and utility for the purposes specified
in Paragraph 4 above, upon not less than sixty (60) days' notice to Licensee.
24. MISCELLANEOUS. (a) The covenants and agreements contained in
this Agreement shall apply to, inure to the benefit of, and be binding upon
Licensor and Licensee and upon their respective successors and permitted
assigns.
(b) This Agreement may not be changed, cancelled or
discharged orally, but only by an agreement in writing and signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought. All understandings and agreements between Licensor and Licensee are
merged in this Agreement which represents the entire agreement between the
parties and which fully and completely sets forth all terms and conditions of
the transactions embodied in this Agreement.
4
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(c) If any term or provision of this Agreement or any
portion of a term or provision of this Agreement or the application of any such
term or condition to any person or circumstance shall, to any extent, be invalid
or unenforceable, the remainder of this Agreement, or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected, and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
(d) This Agreement shall be construed in accordance with,
and governed by, the laws of the State of New York applicable to agreements made
and performed in the State of New York.
25. NO LANDLORD - TENANT RELATIONSHIP. Licensee hereby acknowledges
that Licensee acquires no rights as a tenant of the Licensed Space and that no
landlord-tenant relationship is created hereby.
26. JURISDICTION. Licensee acknowledges and agrees that all disputes
arising, directly or indirectly, out of or relating to this Agreement, and all
actions to enforce this Agreement, may be dealt with and adjudicated in the
state courts of New York or the federal courts sitting in New York, and Licensee
hereby expressly and irrevocably submits the person of Licensee to the
jurisdiction of such courts in any suit, action or proceeding arising, directly
or indirectly, out of or relating to this Agreement and hereby irrevocably
designates the Secretary of State of New York as its agent for service of
process in any such suit, action or proceeding.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF
NEW YORK, Licensor
By: /S/ Kevin E. Kirby
-----------------------------------------------
Title: Kevin E. Kirby, VP for Administration
Nephros, Inc., Licensee
By: /S/ Norman J. Barta
-----------------------------------------------
Title: CEO
5
<PAGE>
Rider to License Agreement by and between
The Trustees of Columbia University in the
City of New York and Nephros, Inc.
Dated 7/1/04
Rider 6(a)
(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).
Rider 6(b)
Provided, however, that this Section 6(a) shall be applicable solely
with respect to the Licensee's use of the Licensed Space and thatd 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.
Rider 16(a)
Unless due to Licensor's gross negligence or willful misconduct
Rider 16(b)
due to or arising out from any act or omission or negligence of Licensee
or any of its agents, contractors, servants, employees, licensees or invitees,
Rider 21(e)
Provided that the Licensor caused the security deposit to be transferred
to the account of the new Licensor.
Rider C-1
(ten (10) days in the event of non-payment of insurance premiums)
<PAGE>
EXHIBIT B
LICENSE FEE
The License Fee shall be payable, in advance, commencing on the
Commencement Date and thereafter on the first day of each and every month during
the Term at the rate of $ 102,130.38 per annum, payable in equal monthly
installments, at the rate of $8,510.87 per month.
INTERNET ACCESS FEE (optional)
Access to the Internet via the Columbia University Network is
$3,942.00 per annum, payable in equal monthly installments, at the rate of
$328.50 per month.
<PAGE>
EXHIBIT C
INSURANCE PROVISIONS
Reference is made to Paragraph 7 of this Agreement.
(a) All insurance shall be written in form and substance
reasonably satisfactory to Licensor, and issued by companies licensed to do
business in New York State and authorized to issue such policies. All policies
of insurance procured by Licensee shall contain endorsements providing that (i)
such policies may not be reduced or cancelled (including for non-payment of
premium) or allowed to lapse with respect to Licensor, or materially changed or
amended, except after thirty (30) days' (Rider C-1) prior notice from the
insurance company by registered mail to Licensee and Licensor at the respective
addresses for such parties set forth in Paragraph 17, and (ii) Licensee shall be
solely responsible for the payment of premiums therefor notwithstanding that
Licensor is or may be named as an additional insured. Upon execution and
delivery of this Agreement, duly executed certificates of all insurance required
hereunder, effective as of the Commencement Date (specifying each of the
coverages enumerated in Paragraph 7 and including evidence of the waivers of
subrogation required pursuant to Paragraph (d) of this Exhibit, together with
reasonably satisfactory evidence of payment of the premiums therefor, shall be
delivered to Licensor. Certificates evidencing any endorsements to any such
policies shall also be so deposited upon issuance thereof and a certificate
evidencing each renewal or replacement of a policy shall be so deposited at
least twenty (20) days prior to the expiration of such policy. Notwithstanding
the foregoing requirements for delivery of certificates of insurance,
certificates evidencing any endorsements and certificates of renewals and
replacements, in any instance where Licensor shall so require, an original
policy or endorsement or renewal or replacement policy, as the case may be,
shall be delivered in addition to or in place of such certificate(s). Licensee
shall not carry any separate or additional insurance concurrent in form or
contributing in the event of any loss or damage with any insurance required to
be maintained by Licensee under this Agreement. Further, all policies of
insurance procured by Licensee shall be written as primary policies not
contributing with nor in excess of coverage that Licensor may carry.
(b) All insurance procured by Licensee under Paragraph 7 and
this Exhibit C, except for the Worker's Compensation and Employer's Liability
insurance and the "all-risk" property insurance, shall name Licensor, Licensee,
The City of New York (the "City"), The New York City Economic Development
Corporation ("EDC"), The New York State Urban Development Corporation d/b/a
Empire State Development ("UDC") and any other superior lessor and superior
mortgagee as additional insureds as their respective interests may appear, and
shall contain an endorsement that each of Licensor, the City, EDC, UDC and any
other superior lessor and superior mortgagee although named as an additional
insured, nevertheless shall be entitled to recover under said policies for any
covered loss or damages occasioned to it, its agents, employees, contractors,
directors, shareholders, partners, trustees and principals (disclosed or
undisclosed) by reason of the negligence or tortious acts of Licensee, its
servants, agents, employees and contractors.
(c) Licensee covenants that (i) Licensee shall pay all premiums
due on policies required to be maintained by the terms of this Agreement and
(ii) Licensee shall not violate, or permit the violation of, any term or
condition of such policies, and shall maintain the policies in full force and
effect throughout the Term.
(d) Licensee agrees to use its best efforts to include in each
of its insurance policies a waiver of the insurer's right of subrogation against
Licensor, or if such waiver should be unobtainable or unenforceable (i) an
express agreement that such policy shall not be invalidated if the insured
waives or has waived before the casualty the right of recovery against any party
responsible for a casualty covered by the policy or (ii) any other form of
permission for the release of Licensor. If such waiver, agreement or permission
shall not be, or shall cease to be obtainable without additional charge or at
all, Licensee shall so notify Licensor promptly after learning thereof. In such
case, if Licensor shall agree in writing to pay the insurer's additional charge
therefor, such waiver, agreement or permission shall (if obtainable) be included
in the policy. As long as Licensee's casualty insurance policies include the
waiver of subrogation or agreement or permission to release liability referred
to above, Licensee, to the extent that such insurance is in force and
collectible, hereby waives any right of recovery against Licensor, and
Licensor's trustees, officers, employees, agents and contractors, for any loss
occasioned by fire or other insured casualty.
(e) In the event that this Agreement is renewed beyond the Term,
Licensor, upon notice to Licensee, shall have the right, in its sole discretion,
once annually during the term of such renewal (if such renewal is for longer
than one year), to require Licensee to increase the amount or amounts of any
insurance coverage required hereby to the amount or amounts then being required
of tenants or occupants of buildings owned by Licensor whose space is being used
for purposes similar to the use permitted hereunder.
<PAGE>
EXHIBIT D
CLEANING SPECIFICATIONS
<PAGE>
EXHIBIT E
BROKER(S)
None.
<PAGE>
Exhibit F
Network & Services
Currently, the Audubon building is connected to Columbia Presbyterian Medical
Center by a microwave antenna running at 10mbps. There are plans for in the near
future to be a 100 mbps.
All floors are equipped with two 10mbps 6 port hubs which are connected to a
10/100 mbps switch located in the basement of the building.
All network lines provided are category 5 plenum cables terminated in an RJ45
panel in the closet.
Network protocol supported are:
IP, Novell IPX, Appletalk.
NETBIOS & NETBUI are PROHIBITED.
SERVICES PROVIDED:
. Novell & TCP/IP Connectivity
. Internet Connectivity via Our domain and DNS "Auduboncenter.org"
. e-mail via your own Domain name and e-mail account on our DNS
Server
. Techncical consulting and advisement with 3rd party computer LAN
company.