Exhibit 10.15
LEASE AGREEMENT
THIS AGREEMENT, made the 11th 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."
WITNESSETH:
1. PREMISES:
NFTA hereby leases to Tenant and Tenant hereby hires and takes from NFTA
the following described premises:
8,035 square feet of office, cafeteria, lavatory and locker room space
(4,100 office, 3,935 cafeteria/lavatory/locker room) on the first floor of
Port Terminal A, 901 Xxxxxxxx Boulevard.
2. USE:
The premises and any part thereof shall be used solely, wholly, and
exclusively for the following purposes:
Office, cafeteria, lavatory, and locker room space.
3. TERM:
The term of this lease shall commence on December 1, 2006 and shall
continue on a month-to-month basis until terminated by either party with 90 days
notice. If the rights of Buffalo Lakefront Development to acquire the building
expire or terminate for any reason, NFTA agrees to amend this lease to provide
that the term of the lease shall expire on November 30, 2009.
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, on a month-to-month basis, will be $5.00 per square
foot per annum, for the 4,100 square feet of office space.
Other Space: Rent, on a month-to-month basis, will be $1.75 per square
foot per annum, for the 3,935 square feet of
cafeteria/lavatory/locker room space.
The rent provided for in this lease shall be fixed until November 30, 2009
subject to the rights of either party under Section 3 of this lease to terminate
this lease prior to such date.
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 on a per square
foot basis." Tenant will pay a
proportionate share of snowplowing
costs.
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.
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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
President
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STATE OF NEW YORK )
) SS:
COUNTY OF ERIE )
On this 31st day of August, 2006, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxxx X. Xxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ Xxxxx X. XxXxxxx
----------------------------------------
Notary Public
STATE OF NEW YORK )
) SS:
COUNTY OF ERIE )
On this 11th day of September, 2006, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxxxx X. Xxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ Xxxxx X. Xxxxx
----------------------------------------
Notary Public
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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
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authorized or approved by all federal, State, or local
agencies having authority to regulate the permitting,
handling, and cleanup of Hazardous Materials.
(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,
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is hazardous or potentially hazardous to persons or
property, it may, either in writing or orally, direct the
Tenant to correct the condition, and the Tenant shall at its
own cost and expense immediately comply with such directive.
(e) Compliance:
To comply with all applicable 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.
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(h) Signs:
To obtain prior written approval for the display of any signs at
the Premises.
(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
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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 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
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competent tribunal shall have been entered that the NFTA is obligated
to make payment in respect of the liability indemnified against
hereunder.
(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
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the Secretary, Part 21, Non-Discrimination in Federally
Assisted Programs in the Department of Transportation,
effectuation of Title 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
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cause injury or to create a fire or environmental hazard, and shall
promptly and appropriately dispose of same off NFTA property.
(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 lightning 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
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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 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.
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(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.
(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
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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.
(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.
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(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, 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
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should the right of Tenant to operate the business activities authorized
hereunder be lost by operation of law.
(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
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herein agreed upon shall cease and Tenant shall upon such expiration
or termination surrender the same forthwith.
(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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