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Exhibit 10.15
LEASE AGREEMENT
THIS
AGREEMENT, made the 11th day of September, 2006, 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., 901 Fuhrmann Boulevard, Buffalo, New York 14203, 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 Fuhrmann 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
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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/ Lawrence M. Meckler
------------------------------------
Lawrence M. Meckler
Executive Director
(SEAL)
NANODYNAMICS, INC.
BY: /s/ Richard L. Berger
------------------------------------
Richard L. Berger
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 Richard L.
Berger, 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/ Diane J. McMahon
----------------------------------------
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 Lawrence M.
Meckler,
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/ Peter J. Burke
----------------------------------------
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
follo
