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Exhibit 10.14
LEASE AGREEMENT
THIS
AGREEMENT, made the 15th day of November, 2002 by and between
NIAGARA FRONTIER TRANSPORTATION AUTHORITY
181 Ellicott Street
Buffalo, New York 14203
hereinafter referred to as "NFTA" or as "Landlord"
and
NanoDynamics, Inc.
63 Morris Avenue
Buffalo, New York 14214
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 Fuhrmann
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.
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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/ Lawrence M. Meckler
------------------------------------
Lawrence M. Meckler
Executive Director
(SEAL)
NanoDynamics, Inc.
BY: /s/ Richard L. Berger
------------------------------------
Richard L. Berger
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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 otherw
