Exhibit 10.14
LEASE AGREEMENT
THIS AGREEMENT, made the 15th day of November, 2002 by and between
NIAGARA FRONTIER TRANSPORTATION AUTHORITY
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
hereinafter referred to as "NFTA" or as "Landlord"
and
NanoDynamics, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
hereinafter referred to as "Tenant."
WITNESSETH:
1. PREMISES:
NFTA hereby leases to Tenant and Tenant hereby hires and takes from NFTA
the following described premises:
40,500 square feet of office and factory space (9,500 office, 31,000
factory) on the second floor of Port Terminal A, 901 Xxxxxxxx Boulevard,
Buffalo.
2. USE:
The premises and any part thereof shall be used solely, wholly, and
exclusively for the following purposes:
Office and factory space.
3. TERM:
The term of this lease shall commence on December 1, 2002 and shall end on
November 30, 2006 unless sooner terminated as hereinafter provided. Tenant shall
have two three-year renewal options.
4. RENT:
The rent shall be payable at the offices of NFTA in equal monthly
installments the first and last of which shall be tendered herewith as a deposit
pending approval and authorization of this agreement by the NFTA Board of
Commissioners and the second and subsequent installments (excepting the final
installment which shall have been pre-paid as above provided) shall be payable
respectively on the first day of the second month and each subsequent month
during the term hereof in advance without notice.
The rental reserved shall be in the following amounts:
Office space: Rent will be waived for years 1-4 in exchange for the
renovation of the offices into Class A space at an estimated
cost of up to $300,000 by tenant. Rent for Year 5 will be
$10 per square foot with an annual escalator of 3% per year
for the remaining years.
Factory Space: Year 1 at $1 per sq. ft. with an annual escalator of 3% for
Years 2-4 Year 5 at $1.30 per sq. ft. with an annual
escalator of 3% per year for the remaining years.
In the event that the NFTA Board of Commissioners fails to approve this
lease, the sum tendered as a deposit shall be refunded to Tenant without
interest and this writing shall be canceled and annulled and neither party shall
have any claim whatsoever against the other by reason hereof.
5. COVENANTS AND AGREEMENTS:
This lease shall be subject, in addition to the foregoing, to all of the
covenants and agreements set forth in the "Appendix of Standard Covenants and
Agreements for Niagara Frontier Transportation Authority Leases" a copy of which
is hereto annexed and by this reference incorporated herein and to the following
special provisions, if any:
Substitute Section 1.g. Utilities: Tenant agrees to pay a proportionate
share of the utilities used in the
warehouse on a per square foot basis.
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AND it is mutually understood and agreed that all of the provisions hereof
shall be binding upon the parties hereto and their respective representatives,
assigns and/or successors in interest.
IN WITNESS WHEREOF the parties have respectively caused these presents to
be signed and sealed the day and year first above written.
(SEAL) NIAGARA FRONTIER TRANSPORTATION
AUTHORITY
BY: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxx
Executive Director
(SEAL) NanoDynamics, Inc.
BY: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
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APPENDIX
OF
STANDARD COVENANTS AND AGREEMENTS
FOR
NIAGARA FRONTIER TRANSPORTATION AUTHORITY LEASES
1. The party named as Tenant in any lease agreement between such Tenant and
the Niagara Frontier Transportation Authority which by its terms incorporates
this Appendix therein does, by execution of such lease agreement, COVENANT AND
AGREE as follows:
(a) Payment: To pay the Rent at the times and in the manner as in said
lease agreement provided.
(b) Non-Assignment: Not to assign or sublet the Premises or any part
thereof for the whole or any part of the term without the prior
written consent of NFTA, which consent shall not be unreasonably
withheld.
(c) Inspection: To allow NFTA, or its agent, to enter the Premises at
all reasonable times of the day by appointment and to inspect the same
to insure compliance herewith.
(d) Hazardous Materials:
(1) The Tenant shall promptly respond to and clean up any
release or threatened release of any Hazardous Material into
the drainage systems, soils, groundwater, waters, or
atmosphere caused by the Tenant, in a safe manner, in
accordance with applicable federal, State, and local
statutes, ordinances, and regulations, and as authorized or
approved by all federal, State, or local agencies having
authority to regulate the permitting, handling, and cleanup
of Hazardous Materials.
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(2) Any Hazardous Materials shall be handled, stored,
transported, and disposed of in accordance with all
applicable federal, State, and local statutes, ordinances,
and regulations. The term "Hazardous Materials" shall mean
any substance, chemical, or waste which at any time shall be
deemed as hazardous, toxic, or dangerous under applicable
federal, State, or local laws or regulations that govern (i)
the existence, cleanup, or remedy of contamination on
property; (ii) the protection of the environment from
spilled, deposited or otherwise emplaced contamination;
(iii) control of hazardous wastes; or (iv) the use,
generation, transport, treatment, removal or recovery of
hazardous substances, including building materials.
(3) The Tenant shall not store, use, or dispose of on the
Premises, any Hazardous Materials which are explosive, toxic
or otherwise hazardous unless the Tenant has first received
the written authorization of the NFTA and the Tenant
complies with any conditions as the NFTA may impose,
including the submission to the NFTA of all Material Safety
Data Sheets (MSDS) for the chemicals stored on the Premises.
(4) Correction of Hazardous Condition. If the NFTA reasonably
determines that a condition on the Premises, caused by the
Tenant, is hazardous or potentially hazardous to persons or
property, it may, either in writing or orally, direct the
Tenant to correct the
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condition, and the Tenant shall at its own cost and expense
immediately comply with such directive.
(e) Compliance:
To comply with all federal, state, county, local and NFTA laws,
rules, regulations and ordinances in connection with the use and
occupancy of the Premises, and to obey all lawful requirements of the
New York Fire Insurance Rating Organization or any similar body with
reference thereto and the use thereof. In the event that the insurance
premium rate upon the building shall be increased by reason of any act
of omission or commission on the part of Tenant or by reason of the
occupancy of the Premises, Tenant agrees to pay the amount of any such
increase. Tenant further agrees to save NFTA harmless from any
expense, loss or damage by reason of the violation of any of such
laws, rules, regulations, ordinances and requirements or by reason of
any damage that might be sustained by reason of Tenant's negligence.
(f) Return: To return the Premises broom clean at the expiration or
earlier termination of such lease agreement and in the same condition
as when taken, reasonable wear and depreciation excepted.
(g) Utilities: To pay the costs for all utilities consumed and for
sewer service when and as the same are metered to the Premises.
(h) Signs: To obtain prior written approval for the display of any
signs at the Premises.
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(i) Liability Insurance:
To maintain during the term of such lease agreement a policy(ies)
acceptable to the NFTA of general liability insurance $1,000,000 per
occurrence/$2,000,000 aggregate, workers' compensation in compliance
with New York State laws with an acceptable insurer(s) and naming NFTA
as an additional insured, such coverage to be evidenced by
certificate(s) thereof delivered to NFTA.
(j) Indemnity:
To the extent not otherwise covered by Landlord furnished
insurance, Tenant shall pay and discharge, and shall protect, defend,
Tenant indemnify and hold the NFTA harmless and its members, agents
and employees from and against all causes of action claims, damages,,
liabilities, losses, costs, expenses (including reasonable attorneys'
fees, expenses and litigation costs), or judgments or fines of any
nature arising or alleged to arise from or in connection with the
following events occurring within the Premises and/or resulting from
acts of Tenant, its employees or agents (except to the extent caused
by NFTA's negligence): (1) any accident, injury to, or the death of,
any person; (2) damage to or destruction or property, in connection
with Tenant's use or occupancy of the Leased Premises or the storage
of any property at the Leased Premises, whether the same be asserted
by third parties, Tenant's agents, Concessionaires, employees,
invitees or licensees; (3) the introduction, disposal, escape,
seepage, leakage, spillage, discharge, emission, release, or
threatened release of any Hazardous Materials as defined in 1(d) (2)
above, from, or affecting the Leased Premises or any other
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property; (4) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to such
Hazardous Materials; (5) any lawsuit brought or threatened, settlement
reached, or government order relating to such Hazardous Materials; or
(6) any violation of laws, orders, regulations, requirements, or
demands of government authorities, which are based upon or in any way
related to such Hazardous Materials including, without limitation, the
costs and expenses or any remedial action, attorney and consultant
fees, investigation and laboratory fees, court costs and litigation
expenses.
The obligation of Tenant under this Section shall survive the
expiration or earlier termination of this Lease. All such obligations
are expressly made for the benefit of, and shall be enforceable by,
the NFTA without necessity of declaring this Lease to be in default
and the NFTA may initially proceed directly against Tenant under this
Section without first resorting to any other rights of indemnification
it may have. All payments required to be paid pursuant to this Section
shall be made directly to, or as otherwise requested by, the NFTA,
upon written demand by the NFTA. All such written demands shall
specify the amounts payable and the facts upon which the right to
indemnification is based. Tenant shall not be required to make any
payment pursuant to this Section until such time as the NFTA shall be
obligated to make payment in respect of the liability indemnified
against hereunder or a final judgment of a court or other competent
tribunal shall have been entered that the NFTA is obligated to make
payment in respect of the liability indemnified against hereunder.
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(k) Maintenance and Repairs:
To take good care of the Premises, and at its own cost and
expense, to make all repairs (except structural repairs) unless due to
the negligence, willful act, or omission of NFTA.
(l) Non-Discrimination:
Tenant for itself, its personal representatives, successors in
interest and assigns, as a part of the consideration hereof, hereby
covenants and agrees as follows:
(1) No person, on the ground of race, color, religion, sex, age,
national origin, marital status or handicap, shall be
excluded from participation in, denied the benefits of, or
be otherwise subjected to discrimination in the use or
operation of Tenant's services or facilities;
(2) In the construction of any improvements on, over or under
the Premises and in the furnishing of services thereat, no
person, on the grounds of race, color, religion, sex, age,
national origin and marital status or handicap, shall be
excluded from participation in, denied the benefits of, or
otherwise be subjected to discrimination;
(3) Tenant shall use the Premises in compliance with all other
requirements imposed by or pursuant to Title 49, Code of
Federal Regulations, Department of Transportation, Subtitle
A, Office of the Secretary, Part 21, Non-Discrimination in
Federally Assisted Programs in the Department of
Transportation, effectuation of Title
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VI of the Civil Right Act of 1964, and as said regulations
may be amended.
2. Such Tenant and the NFTA further COVENANT AND AGREE as follows:
(a) Improvements:
Alterations, additions, other leasehold improvements, except
trade fixtures installed by Tenant, shall be subject to the prior
written approval of NFTA and shall be and become the property of NFTA
at the expiration of such lease agreement, and shall remain on and be
surrendered with the Premises as part thereof upon the expiration or
earlier termination of such lease agreement.
(b) Relocation:
NFTA reserves the right to relocate the Premises in whole or in
part, temporarily or permanently, as it may deem necessary, convenient
or desirable. In the event that any such permanent relocation area is
unacceptable to Tenant, Tenant shall have the right to terminate such
lease agreement upon sixty (60) day prior written notice to NFTA. All
expenses incurred by Tenant in connection with any such relocation
shall be paid by NFTA. Any such relocation shall be made upon
reasonable notice to Tenant, and shall be to a site equally
appropriate to the continued conduct of Tenant's business operations.
(c) Housekeeping: Tenant shall not permit the accumulation of rubbish,
debris, trash, waste materials or anything detrimental to health or
offensive in appearance, or likely to cause injury or to create a fire
or environmental hazard, and shall promptly and appropriately dispose
of same off NFTA property.
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(d) Damage and Liability Disclaimer: NFTA shall not be liable for any
damage to person or property sustained by Tenant or others, due to the
Premises or any part thereof or any appurtenances thereto coming into
disrepair, or due to the happening of any accident in or about the
Premises, or due to any act or neglect of anyone else in or about the
building of which Premises may be a part, including without limitation
damage caused by water, steam, sewerage, gas, bursting or leaking
pipes or plumbing, or electrical causes, or the negligence of
contractors, employees, agents or licensees of NFTA, unless the damage
is proven to be caused by negligence, willful act, or omission of
NFTA.
(e) Damage or Destruction: Tenant shall take good care of the Premises
and shall return the same at the expiration or earlier termination of
such lease agreement in as good order as received ordinary wear and
depreciation excepted, unless the Premises should be destroyed by
lightening or other natural causes, or fire proven not to be caused by
the negligence or fault of Tenant or Tenant's agents, servants,
employees or licensees. If any destruction proven to be without fault
of Tenant occurs during the term of such lease agreement, the
following shall apply:
(1) If the Premises are partially damaged by fire or other
casualty without fault of Tenant, but not rendered wholly
untenantable, as determined solely by NFTA, the same shall
be repaired with due diligence by NFTA at NFTA's sole cost
and expense, and Tenant's rent shall be abated in proportion
to the untenantable portion for the
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period from the occurrence of the damage to the completion
of the repairs.
(2) If the Premises are completely destroyed by fire or other
casualty, or so damaged that they shall remain untenantable
for more than ninety (90) days, as determined solely by
NFTA, NFTA shall be under no obligation to repair or
reconstruct the same and the rent payable shall be
proportionately paid to the time of such damage or
destruction. NFTA shall notify Tenant within thirty (30)
days of the occurrence of such casualty whether repair or
reconstruction of the Premises shall be accomplished. If
NFTA elects to repair or reconstruct, it shall commence and
prosecute such repair or reconstruction with due diligence.
Should NFTA elect not to repair or reconstruct, such lease
agreement shall terminate upon the date of such
notification; provided however, in such eventuality NFTA
agrees to use its best efforts to provide substitute space
for Tenant at a suitable NFTA property. In the event
substitute space is provided and accepted by Tenant, all
terms and conditions of such lease agreement shall apply
thereto.
(f) Access: Subject to NFTA Rules and Regulations, Tenant, its agents,
servants, patrons, suppliers of material and invitees shall have
reasonable ingress to and egress from the Premises.
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(g) Cancellation by Tenant: Such lease agreement shall be subject to
cancellation by Tenant upon the happening of any one or more of the
following events:
(1) The lawful assumption by the United States of America, or
any authorized agency thereof, of the operation, building of
which premises is a part or of the surrounding land areas or
any substantial part or parts thereof in such a manner as to
substantially restrict Tenant from operating therefrom for a
period of ninety (90) days.
(2) Issuance by any court of competent jurisdiction of any
injunction which in any way prevents or restrains the use of
the said building or surrounding lands and which remains in
force for a period in excess of ninety (90) days.
(3) The default by NFTA in the performance of any covenant or
agreement herein required to be performed by NFTA, and the
failure of NFTA to remedy such default for a period of
thirty (30) days after receipt by NFTA of written notice to
remedy same.
(4) The damage or destruction of all or a substantial part of
the Premises or damage or destruction of all or a part of
the said building which is necessary to the operation of
Tenant's business, except to the extent and in the event
such damage or destruction results from acts or negligence
of Tenant.
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(h) Removal and Restoration:
Upon the expiration or earlier termination of this lease for
whatever reason, Tenant, at its sole expense, shall remove all signs,
personal property, equipment, fixtures and materials which Tenant is
permitted to remove hereunder and Tenant shall restore the Premises to
the condition that existed immediately prior to the commencement of
such lease agreement, reasonable wear and depreciation excepted. If
Tenant shall fail to do so within thirty (30) days, NFTA may effect
such removal or restoration at Tenant's expense and Tenant agrees to
pay NFTA such expense promptly including reasonable attorney's fees
incurred thereby upon receipt of proper invoice therefor.
(i) Cancellation by NFTA:
In addition to all other termination rights herein or in such
lease agreement contained, such lease agreement shall be subject to
cancellation by NFTA should any one or more of the following events or
defaults occur:
(1) If Tenant should breach or fail to perform any of the
terms, covenants or conditions herein contained or fail
to keep in force any of the required insurance
policies.
(2) If Tenant should fail to abide by all applicable laws,
ordinances, rules and regulations of the United States,
State of New York, County of Erie and NFTA.
(3) If Tenant should abandon and discontinue the operation
of its business for a continuous period of fifteen (15)
days except when such abandonment and cessation are due
to fire, earthquake,
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governmental action, employee strikes, or other causes
beyond Tenant's reasonable control.
(4) If Tenant should default in or fail to make payments at
the times and in the amounts required under such lease
agreement.
Upon the happening of any of the events or defaults recited hereinabove,
NFTA shall give written notice to Tenant to correct or cure such default,
failure or breach. If, within thirty (30) days from the date of such notice,
Tenant has not corrected such condition or conditions, or taken positive steps
to correct same in a manner satisfactory to NFTA, then, and in such event, NFTA
shall have the right at once and without further notice to Tenant to declare
such lease agreement terminated and to enter upon and take all possession of the
Premises; provided however, that the thirty (30) day period specified herein
shall not apply to termination or cancellation declared for failure of Tenant to
make money payments hereunder, for which, termination or cancellation may be
declared by NFTA upon ten (10) days written notice, and unless such payment is
made during such ten (10) day period, such lease agreement shall become at the
option of NFTA terminated and canceled.
In addition, NFTA may in like manner declare, such lease agreement
terminated and canceled upon giving (5) days notice thereof, in the event that
Tenant files a voluntary petition in bankruptcy, or if a receiver is appointed
for the property or affairs of Tenant and such receivership is not vacated
within thirty (30) days after the appointment of such receiver, or should the
right of Tenant to operate the business activities authorized hereunder be lost
by operation of law.
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(j) Forfeiture and Waiver of Default:
The failure of either party to enforce any default or right to
termination of such lease agreement shall not constitute a waiver of
the right to enforce the same with respect to any other violation. If
such lease agreement should at any time become void or forfeited, no
demand shall be necessary to recover possession of the Premises, and
NFTA shall be entitled to receive the rent, whether the same became
due before or after forfeiture, and such receipt of rent shall not be
deemed or considered a confirmation or renewal of such lease
agreement. In the event of forfeiture of Tenant's interest in such
lease agreement, NFTA shall make reasonable efforts to release the
Premises, and Tenant shall be responsible for the payment of all rent
not recovered by NFTA during the remaining term of such lease
agreement.
(k) Forcible Detention:
In the event that Tenant should continue to occupy the Premises
after the expiration or earlier termination hereof, with or against
the consent of NFTA, such tenancy shall be at sufferance only, but in
all other respects in accordance with the terms herein and in such
lease agreement contained.
(l) Surrender:
Upon the expiration or earlier termination of such lease
agreement, Tenant's rights to use the Premises, facilities, rights,
licenses, services or privileges herein agreed upon shall cease and
Tenant shall upon such expiration or termination surrender the same
forthwith.
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(m) Liens:
Tenant shall, within thirty (30) days of the filing thereof,
cause the removal of any mechanics', laborers' or materialmen's lien,
filed on account of labor or material furnished to Tenant, or claimed
to have been furnished to Tenant in connection with work of any
character performed or claimed to have been performed on the Premises,
by or at the direction or sufferance of Tenant.
(n) Non-brokerage: Tenant represents and warrants to NFTA that the
Premises were not brought to the attention of Tenant by any broker and
that all negotiations were had by Tenant directly with NFTA.
(o) Right to Show: Tenant shall permit NFTA or its agents to enter the
Premises at all reasonable hours by appointment for the purpose of
showing same to persons wishing to purchase or lease the same.
(p) Paragraph Headings: Paragraph headings contained herein are for
convenience in referring to portions or particular provisions hereof
and are not intended to define extend or limit the scope of any
provision hereof.
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LEASE AMENDMENT
THIS AGREEMENT, made the 19th day of September, 2006 by and between
NIAGARA FRONTIER TRANSPORTATION AUTHORITY
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
hereinafter referred to as "NFTA" or as "Landlord"
and
NanoDynamics, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
hereinafter referred to as "Tenant."
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated November 15,
2002 with respect to a portion of the premises located at Port Terminal A, 901
Xxxxxxxx Blvd, Buffalo, New York (hereinafter collectively referred to as the
"Lease"); and
WHEREAS, Landlord and Tenant now wish to amend the Lease.
WITNESSETH:
A. Section 1 "TERM" of the Lease is hereby amended and restated in its entirety
as follows:
"1. TERM:
The term of the Lease shall end on November 30, 2009 unless sooner terminated as
hereinafter provided. Tenant shall have the option to renew the Lease for one
additional three year period."
B. The second paragraph of Section 2 "RENT" of the Lease is hereby amended and
restated in its entirety as follows:
2. RENT:
****
The rental reserved shall be in the following amounts:
Second Floor Office Space: There will be no rent charged on this space
until December 1, 2006. Commencing on December
1, 2006, the rent for this space will be $10 per
square foot and
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annually thereafter, the rent for this space
will escalate 3% per year.
Factory Space: The current rent for this space is $1.09 per
square foot. Commencing on December 1, 2006, the
rent for this space will be $1.30 per square
foot and annually thereafter, the rent for this
space will escalate 3% per year.
C. Except as expressly modified and amended by this Lease Amendment, the Lease
shall continue in full force and effect.
IN WITNESS WHEREOF the parties have respectively caused these presents to
be signed and sealed the day and year first above written.
NIAGARA FRONTIER TRANSPORTATION
AUTHORITY
BY: /s/ Xxxxx X. Xxxxx
------------------------------------
NANODYNAMICS, INC.
BY: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, President
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